Untitled Texas Attorney General Opinion ( 1939 )

Honorable Harry J. Schulz
Cotinty.'.Attorney
Live Oak County
George West, Texas
Dear Sir: Opinion NO. 0-1611
Re: Is it necessary that over-weight
and over-size motor vehicles be
registered and licensed under-ear-
title 6675a-2, Vernon's Annotated
Revised Civil Statutes, in a base
where the Highway Department has
granted a special permit for the
movement of such vehicles as pro-
vided In Section 2, Chapter 282;
Acts of the Forty-second Leglsla-
ture?
Your letter addressed to the Attorney General whereln
you requested an opinion of this department on the question as
substantially stated above has been received and given very
careful consLderatLon. In order that the particular question
submitted by you may be made evidence In this opinion, we
herewith copy so much of your letter as is pertinent, to-wit:
"A is the owner of two old Army Mack trucks.
On one of them he has built a portable, collaps-
able metal tower to be used In building con-
structlon work. The tower and all equipment
thereon is welded thereon and cannot be readily
dismantled. On the other he has buLlt and
erected a metal concrete mixer which Is welded
to the vehicle supported by guides and braces.
This vehicle Is also to be used in building
construction work. Both vehicles are moved upon
the public highways by their own motor power.
"Both of the vehicles the way they are
equipped are more than 96 inches in width. They
are also over-length, over-height and over-
weight as set out in Art. 827a, Penal Code. The
vehicles themselves without the equipment there-
on are not more than 96 inches.wlde. In fact as
you may know, these old Army Mack trucks are
Honorable Harry J. Schulz, page 2, o-1611
about the same size of some present trucks SO
far as width is concerned.
"Neither of these vehicles have any registra-
tion license plates as Is required by Art. 6675a-2,
Vernon's Civil Statutes, and Art. 807b, Sec. 5,
Penal Code. A, the owner of the trucks, applied to
and received from the State Highway Department
permits to move said trucks as equipped from San
Antonio to Brownsville through Live Oak County,
the permits being Issued under Art. 6701a, Ver-
non's Civil Statutes, in spite of the fact that
the trucks have no registration license plates.
"A says that the tax collector of Bexar County,
the county of his residence, refuses to issue him
license plates for said vehicles because of Art.
6675a-8b, Vernon's Civil Statutes, which stipu-
lates that no motor vehicle shall be reglstered
and licensed which has a total outside width, in-
cluding any load thereon, of more than ninety-
six inches, A having applied for such license
plates after he built such equipment on the trucks
and after the State Highway Department had issued
him permits under Art. 6701a.
"The county highway patrolman arrested the
drivers of these trucks in Live Oak County for
,operatingcommercial motor vehicles on a public
highway thereln without registration license
plates. The arrests were made under valid warrants
of arrest issued prior to such arrests by a jus-
tice of the peace of Live Oak County upon com-
plaints filed with such justice before such war-
rants of arrests were Issued, the county highway
patrolman and justice acting under my advice.
The drivers were taken ~mmedlately before the
justice, had the amounts of their bonds fixed,
and a date agreeable to such drivers was set for
trial, the drivers pleadIng not guilty. The
trucks were not seized nor lnterferred with in
any way except, of course the drlvers had been
arrested. The drivers were told that if they
‘againattempted to operate such trucks without
licenses they would agafn be arrested on a sim-
ilar charge. At all times the trucks were free
to-be mov&, except the drlvers and A~were told
that any movement of the trucks or operation
thereon would result in an arrest of the drivers
in such movement or operation was in violation
Honorable Harry J. Schulz, page 3 o-1611
of the Penal Code.
"The questions I wish to ask you are these:
Does the Illegal width of these trucks and the
issuance of the permits by the State Highway De-
partment excuse these trucks from the provisions
of Art. 807b, Sec. 5, Penal Code, and Art. 6675a-2,
which require commercial motor vehicles-such as
these to be licensed? In other words, are the
drivers of these trucks guilty of operating com-
mercial motor vehicles without license plates.
It is my contention that the drivers are guilty
of such offense and that the trucks must be
licensed or kept off the highways until they are
remodeled or reconstructed so that they can be
licensed, and that the inability of A to get
these trucks licensed under~the present facts
is no defense to the criminal prosecutions."
We have given particular attention to the various
statutes and acts mentioned in your letter, from which it ap-
pears that the only question to be determined Is as to whether
or not the owner of the Army Mack trucks has violated the
criminal law of the state by operating the'same under the
special permit granted to him by the Highway Department.
Article 807b, Vernon's Annotated Penal Code, is a~codi-
fication of Section 2, Chapter 282, Acts of the Forty-second
Legislature, which provides in part as follows:
"Section 2. It shall be unlawful and con-
stitute a misdemeanor for any person to drive,
operate or move, or for the owner to cause or
permit to be driven, operated, or moved on any
highway, any vehicle or vehicles of a size or
weight exceeding the limitations stated in this
act or any vehicle or vehicles which are not
constructed or equipped as required in this act,
or to transport thereon any load or loads exceed-
ing the dimensions or weight prescribed in this
act; provided the Department, acting directly or
through its agent or agents designated in each
county shall have and is hereby granted authority
to grant permits limited to periods of ninety
(90) days or less for the transportation over
State highways of such overweight or oversize
or overlength commodities as cannot be reason-
ably dismantled or for the operation over State
highways of super-heavy and oversize equipment
for the transportation of such oversize or over-
Honorable Harry J. Schulz, page 4 o-1611
weight or overlength commodities as cannot be
reasonably dismantled; provlded, that any haul or
hauls made under such permits shall be made by
the shortest practicable route; . . . . . . . .'I
We note from the brief submitted by you, which we have
also carefully considered, and for which we thank you, that
it is your contention that Article 6701a, Vernon's Annotated
Texas Civil Statutes, applies only to those motor vehicles
that have already been, or can be licensed under the provi-
sions of the registration laws; and that the permit from the
State Highway Department did not excuse the owner of these
trucks from registering the same and obtaining license plates
as provided in Article 6675a of the same statutes. In other
words, it Is your contention that the owner of these trucks
is subject to prosecution under the provisions of the law as
shown in Article 807b of Vernon's Annotated Penal Code.
We disagree with your conclusion as to the application
to be given to these various statutory provisions with respect
to the fact.situation stated in your letter. 'On the contrary,
this department is of the opinion that the owner of these
trucks did not violate any penal law of this state while oper-
ating such trucks under the conditions stated in your letter.
The provisions of the above Article 6701a and the sub-
stantial provisions of Section 2, Chapter 282, Acts of the
Forty-second Legislature, were first enacted as Chapter 41 of
the Acts of the Forty-first Legislature, Second Called Session.
This law in substance provide8 that when any person, firm or
corporation shall desire to operate over a state highway super-
heavy or oversize equipment for the transportation of such com-
modities as cannot be reasonably dismantled, and where the
gross weight or size exceeds the limit allowed by law to be
transported over a state highway, the State Rlghway Department
may upon application, issue a permit for the movement of
such equipment upon some designated highway when the depart-
ment is of the opinion that this may be done without material
damage to the highway.
Section 3 of said act provides in substance that before
the issuance of any such permit the applicant for the same
shall file with the State HIghway Department a bond in an a-
mount to be set and approved by the department, payable to the
department, and conditioned that the applicant will pay to
said department any damage that might be sustained to the high-
ways by virtue of the operation of the e uipment, and shall
accompany the application with a fee of 1 5.00 payable to the
Highway Department to be deposited in the Treasury of the
State of Texas to the credit of the Hlghway Maintenance Fund.
.
Honorable Harry J. Schulz, page 5 o-1611
Section 4 of said Act provides In substance that such
EE;itfbjhen issued, shall show: (a) The na;eof the appli-
the date of the application, (c) s nature of the
Stat; Highway Engineer or Division Engineer, the kind of
equipment to be transported over the highway, together with
the weight and dimensions of the same, and that it shall
state the highways and distance over which the same is to be
transported.
Section 5 of,said act is as follows:
"Sec. 5. The fact that the conditions often
require the transportation of heavy and large com-
modlties over some highways creates an emergency
and imperative public necessity and that the con-
stltutlonal rule requiring bills to be read on
three several days be SUSpended, and the same is
hereby suspended, and that this Act take effect
and be in force from and after its PaSSage, and
it Is so enacted."
Inasmuch as you state that the owner of the trucks in
question was in possession of a permit issued by the State
Highway Department, which authorized him to move said trucks
over the specified route or highway, it is to be presumed
that the department did its duty and followed the law in is-
suing Said perUIft.
It is thought, also, thatthe registration and licensing
law respecting motor vehicles, as shown by the various sections
of Article 66758 1 - 8b aforesaid, has no direct application.
According to the plain provisions of this article, these trucks,
equipped as they are shown to be, were not subject to registra-
tion In that they could not be registered because they were
oversize and overweight. Consequently, if they can be moved
upon any highway of this state, it must be by virtue of the
special permit granted to the owner by the Highway Department;
for if the trucks were subject to be registered, there could
have been no occasion or excuse for the Issuance of the special
permit by that department.
It Is to be noted that the fees to be charged and the
licenses provided for by ,virtueof Article 6675a l-8b, Vernon's
Annotated Texas Civil Statutes, are predicated upon an annual
basis; that is, the owner of a vehicle which has been register-
ed under such law is given a license or prlvllege to operate
his motor vehicle upon any highway of the State, unless other-
wfse specifically designated, at any and all times during the
year for which the license Is Issued. No such right is con-
ferred upon the holder of a special permit granted in the terms
Honorable Harry J. Schulz, page 6 o-1611
of law by the Highway Department. The very words of the
statute which authorizes the issuance of such permit, dispel
any such idea. But the law out of constitutional regard for
the use of one’s property in such way as not to work a con-
fiscation of the same, authorizes the Highway Department to
permit the movement of such-motor vehicles as the trucks in
question for a limited time, and over specially designated
routes and under rigid police regulations.
It is believed that the language of the Circuit Court
of Appeals in the case of Sproles vs. Blnford, 52 F. (2d)
730, 736, in its discussion of this "permit", is specially
applicable. That court, after quotin Section 2, Chapter 282,
Acts of the Forty-second Legislature 7Article 807b, Section
5, Vernon's Penal Code) said, at page 736:
"The plain purpose is to permit and make provi-
sion for the transportation over the highways of
these commodltles, extraordinary in length, weight
or size whi.ch (and the equipment upon which they
are handled).cannot be reasonably dismantled, and
which are not everyday, but are unusual, loads,
and which, but for thls or some similar provision,
could not pass over the highways at all. The au-
thority given by this section to the highway de-
partment and Its agents in each county is not to
suspend the laws, as was the power conferred, or
attempted to be conferred, upon the highway depart-
ment In Ex parte Falson, 93 Tex. Cr. R. 403, 248
3. W. 343, but Is of a fact-finding and administra-
tive nature. Trimmier v. Carlton, 116 Tex. 591,
296 3. W. 1070, and cases there cited. Texas Jur-
isprudence, vol. 9, section 70, and cases cited ,in
footnotes. Ruling Case Law, vol. 6, Sections 175
and 179." (Italics ours)
The same Legislature that enacted Senate Bill No. 10,
Chapter 41, Second Called Session of the Forty-first Legisla-
ture, which is the act providing for permit8 to operate over-
size and overweight equipment upon the limitations discussed,
also enacted House Bill No. 6, which is Chapter 88 of the
Acts of said Legislature, and which, among other things, pro-'
vided for the registration and licensing of motor vehicles.
This later act expressly repealed a number of Statute8 and
prior acts of the Legislature, and provided generally that
all of the laws in conflict therewith were repealed; but
Chapter 41 was not mentioned among the statutes and acts that
were expressly repealed.
It is the conclusion of this department that these two
. -
Honorable Harry J. Schulz, page 7 o-1611
acts of the same Legislature do not necessarily conflict and
are not repugnant the one to the other, when construed as
this department has construed them, in that the first enact-
ment must be construed as a limitation or exception to the
provisions of the later act. Thls conclusion is in record
with well established principles of law. In 39 Texas Jurls-
prudence, page 146, it is satd:
"The Legislature is supposed to be governed by
one spirit and policy during a session, and no-
thing short of a direct repeal in express terms,
or such irreconcilable repugnancy as that both
acts,cannot stand together, will justify a court
In holding an act is repealed by another act pass-
ed at the same session . . . . . . . .
"A liberal construction Is permissible for the
purpose of sustaining an act as against an impli-
cation'of its repeal by another act passed at the
same session. The two acts ~111 be construed to-
gether, regarded as one statute, and if possible
they will be so construed that both may stand.as
one embodiment of the legislative will. For this
purpose, the former act may be regarded as an ex-
ception to the provisions of the later."
Numerous cases are cited in the footnotes. See especial-
ly Cain vs. Texas, 20 Tex. 355; Gillam vs. Matthews, 122 S.W.
(26) 348.
It is therefore the opinion of the Attorney General
that the answer to your question must be that the issuance of
the permit by the Highway Department Was legal authority for
the owner of these trucks to operate or move the same over that
highway, particularly designated by the Highway Department in
its permit, and In the manner as therein specifically set out
by the department.
Yours very truly
ATTORNEY GRNRRAL OF TEXAS
WFM:FG :wc By sfi. F. Moore
W. F. Moore
First Assistant
APPROW FNR 24, 1940
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
This Oplnlon Considered And Approved In Llmlted Conference