Honorable Harry J. Schulz

Cotinty.'.Attorney Live Oak County George West, Texas

Dear Sir: OpinionNO. 0-1611 Re: Is it necessary that over-weight and over-sizemotor vehiclesbe registered and licensed under-eartitle 6675a-2,Vernon's Annotated Revised Civil Statutes, in a base where the HighwayDepartment has granted a special permit for the movement of such vehicles as provided In Section 2, Chapter 282; Acts of the Forty-secondLeglslature?

Your letter addressed to the Attorney Generalwhereln you requested an opinion of this department on the questionas substantially statedabove has been received and given very careful consLderatLon. In order that the particular question submittedby you may be made evidence In this opinion,we herewith copy somuch of your letter as ispertinent, to-wit:

"A is the owner of two old Army Mack trucks. On one of them he has built a portable, collapsable metal tower to be used In building constructlonwork. The tower and all equipment thereon iswelded thereon and cannot be readily dismantled. On the other he has buLlt and erected a metal concretemixer which Iswelded to the vehicle supportedby guides and braces. This vehicle Is also to be used inbuilding constructionwork. Both vehicles are moved upon the public highwaysby their ownmotor power.

"Both of the vehicles the way they are equipped are more than 96 inches inwidth. They
are also over-length,over-height and overweight as set out in Art. 827a, Penal Code. The vehicles themselveswithout the equipment thereon are not more than 96 inches.wlde. In fact as you may know, these oldArmy Mack trucks areHonorable Harry J. Schulz,page 2, o-1611

about the same size of some present trucks SO faraswidth is concerned.

"Neitherof these vehicles have any registration license plates as Is requiredby 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 HighwayDepartment permits to move said trucks as equipped from San Antonio to Brownsville through Live Oak County, the permits being Issuedunder Art. 6701a, Vernon'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 issuehim licenseplates for saidvehicles because of Art. 6675a-8b,Vernon's Civil Statutes,which stipulates that no motor vehicle shall be reglstered and licensedwhich has a total outsidewidth, including any load thereon, of more than ninetysix inches,A having applied for such license plates after he built such equipment on the trucks and after the State HighwayDepartment had issued him permits under Art. 6701a.

"Thecounty highwaypatrolman arrested the drivers of these trucks in Live Oak County for ,operating

commercial motor vehicles on a public highway therelnwithout registration license plates. The arrestswere made under valid warrants of arrest issued prior to such arrests by a justice of the peace of Live Oak County upon complaints filedwith such justicebefore suchwarrants of arrestswere Issued, the county highway patrolman and justiceacting under my advice. The driverswere taken ~mmedlatelybefore the justice,had the amounts of their bonds fixed, and a date agreeable to such drivers was set for trial, the drivers pleadIngnot guilty. The truckswere not seizednor lnterferredwith in any way except, of course the drlvers had been arrested. The driverswere told that if they ‘againattempted to operate such truckswithout licenses they would agafn be arrested on a similar charge. At all times the truckswere free to-be mov&, except the drlvers and A~ were told that any movement of the trucks or operation thereonwould result in an arrest of the drivers in suchmovement or operationwas in violationHonorable Harry J. Schulz, page 3 o-1611

of the Penal Code.

"Thequestions Iwish to ask you are these: Does the Illegalwidth of these trucks and the issuanceof the permitsby the StateHighway Department excuse these trucks from the provisions of Art. 807b, Sec. 5, Penal Code, and Art. 6675a-2, which require commercialmotor vehicles- such as these to be licensed? In otherwords, are the drivers of these trucks guilty of operating commercial motor vehicleswithout licenseplates. It is my contention that the drivers are guilty of such offense and that the trucks must be licensed or kept off the highwaysuntil they are remodeled or reconstructed so that they can be licensed,and that the inability of A to get these trucks licensedunder~the present facts is no defense to the criminalprosecutions."

We have given particular attention to the various statutesand actsmentioned in your letter, fromwhich it appears that the only question to be determined Is as towhether
or not the owner of the Army Mack trucks has violated the criminal law of the state by operating the'same under the specialpermit granted to him by the Highway Department.

Article 807b,Vernon's Annotated Penal Code, is a~codification of Section 2, Chapter 282, Acts of the Forty-second Legislature,which provides in part as follows:

"Section2. It shallbe unlawful and constitutea misdemeanor for any person to drive, operate ormove, 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 equippedas required in this act,
or to transport thereon any load or loads exceeding the dimensions or weight prescribed in this act; provided theDepartment, acting directly or through its agent or agents designated in each county shallhave 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 overlengthcommoditiesas cannot be reasonably dismantled or for the operation over State highways of super-heavyand oversize equipment for the transportationof such oversize or over-Honorable Harry J. Schulz, page 4 o-1611

weight or overlengthcommoditiesas cannot be reasonablydismantled;provlded, that any haul or hauls made under such permits shall be made by the shortestpracticableroute;

. . . . . . . .'I

We note from the brief submittedby you, which we have also carefully considered,and for which we thank you, that it is your contentionthat Article 6701a, Vernon's Annotated Texas Civil Statutes, applies only to thosemotor vehicles that have already been, or can be licensedunder the provisions of the registration laws; and that the permit from the StateHighway Department did not excuse the owner of these trucks from registering the same and obtaining license plates
as provided inArticle 6675a of the same statutes. In other words, it Is your contention that the owner of these trucks is subject to prosecutionunder the provisions of the law as shown inArticle 807b ofVernon's Annotated Penal Code.

We disagreewith your conclusion as to the application to be given to these various statutory provisionswith respect to the fact.situation stated inyour letter. 'Onthe contrary, this department is of the opinion that the owner of these trucks did not violate any penal law of this statewhile operating such trucks under the conditions stated inyour letter.

The provisions of the above Article 6701a and the substantialprovisions of Section 2, Chapter 282, Acts of the Forty-second Legislature,were first enacted as Chapter 41 of the Acts of the Forty-firstLegislature, Second Called Session. This law in substanceprovide8 thatwhen any person, firm or corporation shalldesire to operate over a state highway superheavy or oversize equipment for the transportation of such commodities as cannotbe reasonablydismantled, and where the grossweight or size exceeds the limit allowed by law to be transported over a state highway, the State RlghwayDepartment may upon application, issue a permit for the movement of such equipmentupon some designated highwaywhen the department 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 issuanceof any such permit the applicant for the same shall filewith the StateHIghway Department a bond in an amount to be set and approved by the department, payable to the department, and conditionedthat the applicantwill pay to said department any damage that might be sustained to the highways by virtue of the operation of the e uipment, accompany the applicationwith a fee of 1 and shall 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 saidAct provides In substance that such EE;itfbjhen issued, shall show: (a) The na;eof the applithe date of the application, (c) s nature of the Stat; Highway Engineer orDivision Engineer, the kind of equipmentto be transported over the highway, togetherwith theweight and dimensions of the same, and that it shall state the highwaysand distance overwhich 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 commodlties over some highways createsan emergency and imperativepublic necessity and that the constltutlonalrule requiring bills to be read on three severaldays 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."

Inasmuchas you state that the owner of the trucks in questionwas in possession of a permit issuedby the State Highway Department, which authorized him to move said trucks
over the specified route or highway, it is to be presumed that the departmentdid its duty and followed the law in issuing Said perUIft.

It is thought, also, thatthe registrationand licensing law respectingmotor vehicles, as shownby the various sections of Article 66758 1 - 8b aforesaid, has no direct application. According to the plain provisions of this article, these trucks, equippedas they are shown to be, were not subject to registration In that they could not be registeredbecause they were oversizeand overweight. Consequently, if they can be moved upon any highway of this state, itmust be by virtue of the specialpermit granted to the owner by the Highway Department; for if the truckswere 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 licensesprovided 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 vehiclewhich has been registered under such law is given a license or prlvllege to operate hismotor vehicleupon any highway of the State, unless otherwfse specificallydesignated, at any and all timesduring the year forwhich the license Is Issued. No such right is conferredupon the holder of a special permit granted in the termsHonorable Harry J. Schulz, page 6 o-1611

of law by the Highway Department. The very words of the statutewhich authorizes the issuance of such permit,dispel any such idea. But the law out of constitutionalregard for the use of one’s property in suchway as not towork a confiscation of the same, authorizes the Highway Department to permit the movement of such-motorvehicles as the trucks in question for a limited time, and over speciallydesignated routes and under rigid police regulations.

It isbelieved 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-secondLegislature 7 Article 807b, Section 5, Vernon's Penal Code) said, at page 736:

"Theplain purpose is to permit and make provision for the transportationover the highways of these commodltles, extraordinary in length,weight
or sizewhi.ch(and the equipmentupon which they
are handled).cannotbe 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 authority given by this section to the highway department and Its agents in each county is not to suspend the laws, as was the power conferred, or attempted to be conferred, upon the highwaydepartment In Ex parte Falson, 93 Tex. Cr. R. 403, 248 3. W. 343, but Is of a fact-findingand administrative nature. Trimmierv. Carlton, 116 Tex. 591, 296 3. W. 1070, and cases there cited. Texas Jurisprudence,vol. 9, section 70, and cases cited ,in footnotes. and 179." Ruling Case Law, vol. 6, Sections 175

(Italicsours)

The same Legislature that enacted SenateBill No. 10, Chapter 41, Second Called Session of the Forty-first Legislature,which is the act providing for permit8 to operate oversize and overweight equipmentupon the limitationsdiscussed, also enactedHouse 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 expresslyrepealed a number of Statute8 and prior acts of the Legislature, and provided generally that all of the laws in conflict therewithwere repealed; but Chapter 41 was not mentioned among the statutes and acts that
were expresslyrepealed.

It is the conclusion of this department that these two. -

HonorableHarry 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 construedas this department has construed them, in that the first enactment must be construedas a limitation or exception to the provisions of the later act. Thls conclusion is in record with well establishedprinciples of law. prudence, page 146, it is satd: In 39 Texas Jurls-

"TheLegislature is supposed to be governedby
one spirit and policy during a session,and nothing short of a direct repeal in express terms,
or such irreconcilablerepugnancyas that both acts,cannot stand together,will justifya court In holding an act is repealed by another act passed at the same session

. . . . . . . .
"A liberal construction Ispermissible for the purpose of sustainingan act as against an implication'

of itsrepeal by another act passed at the
same session. The two acts ~111 be construed together, regarded as one statute,and ifpossible theywill be so construed that both may stand. as one embodiment of the legislativewill. For this purpose, the former act may be regarded as an exception to the provisions of the later."

Numerous cases are cited in the footnotes. See especially Cain vs. Texas, 20 Tex. 355; Gillam vs. Matthews, 122 S.W. (26) 348.

It is therefore the opinion of theAttorney General that the answer to your question must be that the issuance of the permitby theHighway Department Was legal authority for the owner of these trucks to operate or move the same over that highway,particularlydesignated by the Highway Department in its permit, and In the manner as therein specificallyset out by thedepartment. Yours very truly ATTORNEYGRNRRAL OF TEXAS

WFM:FG:wc

APPROW FNR 24, 1940 s/Gerald C. Mann ATTORNEYGENERAL OF TEXAS By sfi.F. Moore W. F. Moore First Assistant

This Oplnlon ConsideredAnd Approved In Llmlted Conference