February 13, 1952

Hon.William L. Taylor OpinionNo. V-1407 ProsecutingAttorney Rarrison County Re: Mandatory or permissive Marshall, Texas character of provisions for a county engineer in the Harrison County Dear Mr. Taylor: Road & Bridge Law.

Your request for an opinion from this office presents the following question:

Does House Bill No. 812, Special Laws of the 42nd Legislature,R.S. 1931, ch. 156, p. 303 (HarrisonCounty Road Law), make it mandatory for the commissioners' court of Harrison County to employ a county engineer and to have a county engineer in constant employmentwith Rarrison County? The pertinent sections of House BillNo. 812, Special Laws 42nd Leg., R.S. 1931, ch. 156,p. 303 (HarrisonCounty Road Law), provide in part:

"Section 1. That Chapter 42,Acts of the First Called Session of the 37th Legislature, (the samebeing known as the Davidson Road Law) be and the same is hereby In all respects repealed insofar as the same applies to Harrison County. "Section 2. The Commissioners'Court of Harrison County Is hereby authorizedand empowered to employ a County Rngineer,whose duties, compensationand liabilities shall be such as are imposed by this Act. The said County Engineer shall devote his entire time to the constructionand maintenance of the county Roads.
"Sec. 3. That said County Engineer shall be appointed by the Commissioners' Court of said countywithin ninety (90)days. .

Hon. William L. Taylor, page 2 (w-1407)

after the passage of thisAct at a Regular Meeting or Called Session thereof. That he shall have charge of all public road constructionand public road maintenance, together with the building of bridges and culverts, in his County except as is otherwise herein expresslyprovided. Said County Engineer within twenty (20)days after his appointment shall take and subscribe to the oath required by the Constitution,and enter into bond, payable to the County Judge or his successors in office,with good and sufficient sureties to be approved by the-County Ju;z,;t&inthe sum of Five Thousand ($5,000.00) fully a;dconditionedupon said Engineer faitheffectivelydischargingand performing all the duties required by law or imposed on him by the Commissioners'Court ofhis County,which bond shallbe filed and recorded as other official bonds and shall not be void for the first recovery, butmay be sued on from time to time until thewhole amount is exhausted.
"Sec. 4. Said County Engineer shall be a qualified Civil Engineer and a resident of the State of Texas; he shall serve at the will of the CommissionerstCourt, and may be removed by said Commissioners'Court for any reason which in the opinion of said Court justifiesremoval. He shall receive such salary as may be determinedby the Commissioners' Court to be oaid out of the Road and Bridge Fund. That said County Engineer shall subject to the orders of the Commissioners' Court,have general supervision over the constructionand maintenance of all p blit roads and highways of his couute to-U nether with the bulldinn of bridees &d cnl..- ~~ ~~~ verts; he shall superinTend the~~raying out of new roads subject to the orders of the Commissioners' Court, and shall forthwithmake or cause to be made a road map of the county showing the location,mileage, and classlfication of the differentroads and highways in said county. s . .5 throughout.) (EmphasisaddedI. -

Hon. William L. Taylor, page 3 (V-1407)

An act should be given a fair, reasonable, sensible construction,~oonsideringits languageand subjectmatterwith a view of accomplishing the legislative intent and purpose. In otherwords, construction.shouldaccordwith common sense and justice. and irrational conclusions or deductions should be avoided. Clark v.W. L. Pearson & Co., 121 Tex. 34, 39 S.W.2d 8 (1 31) State v. Stein, 36 S.W.2d 698 (Tex. Corn. ADD. 1931

. doubtless a courtwill give due regard to-the languageused in a statuteor i;rovision thereof in determiningwhether it is mandatory or merely directory. Words of permissive ormandatory character ~111 ordinarilybe given theirnatural effect, but when there is room for constriiction permissivewords will be givenmandatory significanceormandatory words will be held to be directory,as appears to be necessary to effectuate the legislative intent. Hess & Skinner Engineering Co. v. Turney, 109 Tex. 208-3 S.W. 593 (191cJ)H Laren v. State, g2 Tex. Crim. 449, lgg S.W. 811 (&;.

It is stated in 2 Sutherland Statutory Construction (3rdEd. 1943) 338, Sec. 4704:

I’

. A statute is to be construed with rifirence to its manifest object,and if the languageis susceptible of two constructions, onewhich will carry out and the other defeat suchmanifest object, It should receive the former construction.

. . . "If upon examination the generalmeaning and object of the statute is inconsistent with the literal import of any clause or section, such clause or sectionmust, if possible, be construedaccording to that purpose. But to warrant the change of the sense to accommodate it to a broader or narrower import, the intention of the legislaturemust be clearand manifest." The court stated in Wood v. State, 133 Tex. 110, 126 S.W.2d 4, 7 (1939):

'It is the settled law that statutes should be construed so as to carry out legislative intent, and when such intent is ascertained it shouldbe given effect evenRon. William L. Taylor, page 4 (v-1407)

though literalmeaning of words usea in the statute is not followed.

. . ."
In the light of the above authorities, section 2 of House Bill 8,12should be interpreted as beingmandatory in nature, although the actual wording of it is merely directory, if such is the intent of the Legislatureas determined from the act as a whole.

Looking to the remainder of the act, we find in Section 3 provisionswhich clearly indicate a mandatory intention on the Eart of the Legislature. The first sentence says that said County Engineer shall be appointedby the CommissionersCourt of said countywithin ninety (90)days after the passage of this Act at a RegularMeeting or Called Session thereof.@ The balance of Section 3 and all of Section 4 indicate that the appointment of an engineerwas to be mandatory.

In vSew of the foregoing, it is our opinion that the Legislature intended to provide a county engineer to be in constant charge of all public road tionstruction

and maintenance in Rarrison County, subject of course to over-all supervisionby the~commissioners'Court. See Att'y Gen. Op.V-1315 (1951). Although the engineer serves at thewill of the county commissioners,the statute contemplates that upon the removal of one county engineeranotherwill be appointed.
SUMMARY
House Bill Bo. 812;Acts 42nd Lef" Spe-, cial Laws R.S. 193I, ch. 156,p. 303 Harrison County Road Law),makes it mandatory for the commi5sioners' court of Harrison County to employ a county engineerand to have a county engineer in constant employmentwith HarrisonCounty.
APPROVED:
J. C. Davis, Jr. CountyAffairs Division
E. Jacobson ReviewingAssistant Yours very truly,
PRICE DAEIEL Attorney.Gener

BY Charles D.Mathews First Assistant Assistant

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