Jan. 27, 1947 

I&en. V. H. Sagebiel Opinion No. V-48 

Cbunty Attorney 

Gillespie County 

Fredericksburg, Texas 

Re: 

4 ‘. , .” .i 

. . 

Dear Sir: 

. 

Construction of Article 

8,27a, Section 3(a), Veranen’s Annotated Criminal 

Statutes of Texas, Penal 

Code, in reference to implements of husbandry, 

and highway building and 

maintenance machinery. 

We are in receipt of your letter of January 14,, 1947, in 

which you request the opinion of the department en the questions 

contained in yeur letter which reads as follows; 

“An opinion is requefted as to the interpretation 

of the exceptions listed in Article 927a, Sec. 3 (a), 

viz., ‘implementa of hu1badry . + I* aad highway 

building dnd mafntenance machinery temporarily 

propelled Q& moved upan t&u public highways.’ 

. “The situation we have involves the transportation on the public highways, on its own wheels, 

of a privately-owned ten cubic yard power scraper 

which is conceded to be more than 96 inches in 

. . . . . . width, and which was transported for the purpose,, 

of building privately-owned earth tanks, It is contended that the transporting was an acoamodatien 

‘.~ 

to the owners who are good customers of the firm ~ 

of which the defendapt is a member, and that the 

defendant and his firm received no compensation 

nor had any other connec,tion with the scraper than 

its transportation; and further, that the scraper 

comes within the exceptions above noted. 

“A cut of a scraper similar to the one involved 

is enclosed.” 

.’ As we view your request, based upon the contents of 

your letter (including the picture or cut of the power scraper), 

two questions are presented. 

.I 
I 

. 

Hon. V. H. Sagebiel - Page 2 Opinion No. V-4g 

1. Is the power scraper described an “implement of husbandryq so as’to come within the exception regarding implements 

of husbandry in Article 827a, Section 3(a), Vernon’s Annotated 

Criminal Statutes of Texas, Penal Code? 

2. Is the power scraper described “highway building and 

maintenance machinery” so as to come within the exception regarding highway and maintenance machinery in Article 8270, Section 3(a), Vernon’s Annotated Criminal Statutes of Texas, Penal 

Code 7 

Article 827a, Section 3(a)* Vernon’s Annotated Criminal 

Statutes of Texas, Penal Code (as amended, Acts 1931, 42ad Legislature, p. 507p ch. 282, Sec. 3), reads as follows: 

“‘No vehicle shall exceed a total outside width, 

including any load thereon, of ninety-six (96) inches, 

except that the width of a farm tractor shall not exceed nine (9) feet, and except further, that the limitations as to size of vehicle stated in this section 

shall not apply to implements of husbandry, including machinery usea solely for the purpose of drilling, 

water wells, and highway building and maintenance 

machinery tern ,raraly propelled or moved upox, tiie 

public high&? (Emphasis ours) 

The power scraper in questien is~ a large four-wheeled 

scraper with dual tires on tht,re+r, more than ninety-six (96) 

inches in width, and capable of moving ten cubic yards of earth 

each time it is operated. It is drawn or towed by a full tract vehicle or similar mechanical forcer Under the facts stated it was 

moved over a highway onto private land for use in constructing an 

earthen tank. Under the definition of “vehicle”” as defined by the 

Legislature in Article 827a, supra, the scraper is a vehicle inasmuch as it is a m0 . 0 mechanical device, in, upon or by which any 

person or propetty is or may be transported or drawn upon a 

public highway . a .R See Commercial Standard Ins. Co. v. McKinxey, 114 S. W. (2d) 33g (Tex. Civ. App. 1938). 

The term “implementsof husbandry” has not been defined by the Legislature in the particular statute in question. 

Suck being true, and the intent remaining obscure after a reading 

of tbe entire act, we may consider other laws and circumstances 

indicating the legislative intention. 

tex Co,, l2Q Tex. 166, 36 S. W, (2d) 

Tsx.rim. Rev. 188. 170 S. W. 548 

Revised Civil Statutes of Texas, 192’5, ai amended (Relist-n . . 

and Regulation of Vehicles) , “implements of husbandry” are de- 

. . fined as follows: 
Hon. V. H. Sagebiel - Page 3 Opinion No. V-48 

“(4 ‘implements’of husbandry’ shall mean farm 

implements, machinery and tools as used in tilthe solI, but shall not mclude any passenger car or 

m (Emphasis our~s) 

Article 6687b, Section 1, Texas Revised Civil Statutes, 

(Acts 1941, 47th Legislature, as amended Acts 1943, 48th Legislatut) defines “implements of husbandry” as follows: 

“(8) ‘Implements of Husbandry.’ Farm implemerits, machinery and toolsas, used in tilling the 

soil, namely: cultivatdrs, farm tractors, reapers, 

binders, combines, or mowing machinery, but shall 

not mclude any autsmoblle or truck.” (timphasls 

ours) 

Ballentine defines “Implements of Husbandry” as follows: 

“Anv instrument used directlv in the business 

,of farming, and for no other purpose is an implement of husbandry. Horse rakes, gang plows, 

headers, threshing machties, and combined harvesters are as clearly implements of husbandry 

as are hand rakes, single plows, sickles, cradles, 

flails, or an old fashioned machine for winnowing, 

There is no ground for excluding an implement 

from the operation of the exemption statute because it is an improvement, and supplants a farm 

implement used with less effeativeness for the 

same purpose. Estate of Klemp, 119 Cal. 41, 39 

L. R. A. 340, 58 Pacr, Rep. 1062.” (Emphasis ours) 

The Court of Criminal Appeals had before it in Reaves 

v. State, 121 Tex. Crim. Rep. 488, 50 S. W. (2d) 286 (1931)r 

question of whether or not a motor truck with trailer exceeding 

forty-five feet in length and transporting baled hay, cotton and 

feed stuffs, came within the exemption stated in Article 827a, 

Section 3(a), supra. The court in halding that the truck did not 

come within the implement ,of husbandry exception defined “implements of husbandry” under the statute as follows! 

I 

. . . An implement of husbandry is something 

necessary to the carrying en of the business of 

farmmg, etc., wrthout whrch the work cannot be 

done. 31 ,Corpus Jurrs, p. 256. (hmphasrs ours) 

No other Case has construed the term ?implements of 

husbandry” under the Article in question. The Supreme Court 

of Texas in Allred v. J. C. Engelman, 123 Tex. 205, 61 S. W. (2d) 

75 (1933) held that a water truck was an implement of husbandry 
Hon. V. H. Sagebiel - Page 4 Opinion No. V-40 

within the meaning ef Article 6675a-1 et seq., which was used for 

transporting waer to a citrus farm, a& the Amarillo Court of 

Civil Appeals in Bean v. Reeves, 77 S. W. (Zd) 737 (1934, Rehearing Denied), held that a truck used exclusively in Oonnection with 

the business of the owner’s farm and temporarily operating on 

the highways in transporting the owner’s Cotton to the gin, and 

farm products to market was an “implement of husbandry’ and 

therefore exempt from registration fees. Both of these cases 

arose prior to the amendment of Article 6675r-1 et seq., in 1741 

when the Legislature added the definition of *implements of husbandry” to the act, and they therefore throw no light on the decision of the question involved in this opinion. 

We think it clear from what has been said, and especially 

under the decision of the Court of Criminal Appeals in Reaves v. 

State, supra, that the power scraper above described was not an 

implement of husbandry” as that term is used in Article 8270, 

Section 3(a), supra. The answer to the first question is therefore 

in the negative. 

We have been unable to find any case construing the 

terms “highway building and maintenance machinery” as used in 

Article g27a, Section 3(a), supra. It was said by the court in 

Reaves v. State, supra, page 287, that: 

” 

. . i Recognining that of necessity some forms 

of transportable machinery must move from one 

place to another, and that over said highways, exceptions were inserted in the statute , , .* 

*The permission of the exceptions here apperring extends no further than to the implement or machine itself when in form or sine violative of the 

statute . . .* 

It seems clear that the Legislature in using the term 

“highway building and maintenance machinery* intended to dcsignate a particular type of heavy machinery commonly used in the 

construction andmaintenance of roads and hIghways as being exempt from the operation of the statute where it was only temporarily moved over the highway. The Legislature evidently had in 

mind that it was impossible to anticipate and describe by name 

every heavy machinery wherle particular design would bring it 

within the classification of “highway maintenance and building 

machinery.a It seems evident that the purpese of the legislation 

was to exempt from the prohibitioio of the Ptrtute all machines 

of a type primarily designed for highway construction and mrintenance, temporarily using the highways, when their size and 

form brought them witbin the prohibitions. Compare Allred v. 
Hon. V. H. Sagebiel - Page 5 Opinion No. V-48 

J. E. Engelman, 123 Tex. 205, 61 S. W. (2d) 75 (1933). 

It is important to observe that ~the statute does not qualify, 

the term ‘highway building and maintenance machinery? by requiring that the use of the machine be devoted solely to highway building and maintenance before It ~111 come w~thm the exemptron as Qie 

Legislature saw fit to do with respect to.“machinery used solely for 

the purpose of drilling water wells,” which appears as a part of the 

same statute. (timphasis ours) It therefore follows, in our opinion, 

that the term “highway building and maintenance machinery” was 

used to designate 8 p8sticular type of heavy machinery and equipment commonly used in connection with highway maintenance and 

construction. The fact that the machine might; at times, be dedicated to some other use does n&within itself eliminate it from the 

clcssificrtion. 

Webster’s New International Dictionary, Second Series, unabridged, defines the word.‘scr*per* in p8rt 8s follows: 

“An apparatus drawn by horses or other means for 

scraping up, transpo’rting and dumping earth in making 

roads, canals, etc. . . The two-wheeled and fourwheeled scrapers have a metal scoop, suspende~d from 

an axle on wheels, that can be raised to clear the 

ground after loading.” (Emphasis ours) 

The picture and description of the power scraper under 

consideration reflects th8t it is 8 type commonly seen in use today 

by eonetruction companies in the building of highways, dams, artificial lakes, levees, and the such like. It is. true that the prrticular 

power, morapei, equipped with pneumatic tires, bogies and other 

modern mechanical devices is vrstly different from scrapers seen 

. m operation in the building ef reads ar+d general construction works 

several years ago, but it seems evident that such was one of the 

purposes of the Legislature in defining such machinery in general 

terms so as to take care of constantly changing conditions and improvement in machinery of this type. 

It is a generrl rule of statutory construction that in the 

absence of a contrary indication legislative enactments which are 

prospective in operation and which are couched in general and cornprehensive terms broad enough to include ~unknown things that might 

spring into existence in the future, apply alike to new thing,*, coming 

into existence subsequent to their passage where such things are of 

the same class as those specified, and are within the general pur& 

view, scope, purpo,se and policy ef the statute and the evident meaning of the term used. 50 Am. Sec. 419, Zucrrro v, Strte, 82 

Tex. Grim. Rep. 1, 197 L.R.A. 19198, 35-I PPlYinK 

this rule of construction the legislative designation of “highway 
Hon. V. H. Sagebiel - Page 6 Opinion No. V-48 

building and maintenance machinery” would include a modern 

power scraper equipped with pneumatic tires, bogies, and other 

mechanical devices. 

In answer to what constitutea a temporary movement or 

propelling along the highway as contemplated by the statute, the 

court in Reaves v. State, supra, said: 

. 

. . . if a farmer should desire to transport such 

vehicle along the highways from place of purchase 

to place of intended use, or from one place of use to 

another. this would be the ‘temuorarv nronellms or 

moving’ contemplated by -subdi&ion (6) quotedabove, and would hence be permissible . , .” (Emphasis ours) 

Based upen the above and foregoing, we are of the opinion 

that the four-wheeled power scraper described is “highway building and maintenance machinery” within the meaning of Article 8278, 

Section 3(a), supra, notwithstanding the fact that it was temporarily 

moved over the highway for use in constructing an earthen tank on 

private land. Our answer to your second question is in the affirmative . 

SUMMARY 

1. A large four-wheeled power scraper exceed- 

&g ninety-six (96) inches in width, and capable of 

moving ten yard8 of dirt in each operation, and used 

in constructing an earthen tank on private land, held 

not to be an “implement of husbandry” under the exceptions contained in Article 827a, Section 3(a), 

Vernon’s Annotated Criminal Statutes of Texas. 

2. A large four-wheeled power scraper exceeding ninety-six (96) inches in width, and capable of 

moving ten yards of dirt in each operation, which 

was temporarily moved over a highway onto p*ivste land for uoe in constructing a privately owned 

earthen tank, held to ,be “highway LuiIding and mrintenance machinery” and within the exception contained in Article 827r, Section 3(a), Vernon’s Annotated Criminal Statutes of Texas, even though 

temporarily devoted to construction of an earthen 

tank rather than kighway building and maintenance..~. 

APPROVED 

You m-5 very truly, 

ATTO lRNEY GENERAL OF TEXAS 

Assistant 

CDM: jt: sl APPROVED-OPINION.COlvlMITTEE 

BY BWB - CHAIRMAN