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 ofhusbandry, and highway building and maintenance machinery.

We are in receipt ofyour letter ofJanuary 14,,1947, in which you request the opinion ofthe department en the questions contained inyeur 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 

## ofhu1badry

.+I*aadhighway building 

### dndmafntenance machinery temporarily propelled Q& **moved** upan t&upublic 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,,

ofbuilding privately-owned earth tanks, It is contended that the transporting was an acoamodatien ‘.~

~ to the owners who are good customers of the firm ofwhich the defendapt is amember, 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 ofthe power scraper), two questions are presented.

.II

. 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 ofhusbandry inArticle 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 inArticle 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 atotal outside width, including any load thereon, ofninety-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 ofvehicle **stated** in this section shall not apply to implements ofhusbandry, 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 ahighway onto private land for use in constructing an earthen tank. Under the definition of “vehicle”” as defined by the Legislature inArticle 827a, supra, **the scraper**  is **a**vehicle inasmuch as it is a m0

. 0mechanical 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. **Mc** Kinxey, 114S. 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** oftbe 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 ofhusbandry” 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 intilthe 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 ofhusbandry” as follows:

“(8) ‘Implements ofHusbandry.’ Farm implemerits, machinery and toolsas, used intilling 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 inthe business ,of farming, and for no other purpose is an implement ofhusbandry. Horse rakes, gang plows, headers, threshing machties, and combined harvesters are as clearly implements ofhusbandry 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 ofthe exemption statute because it is an improvement, and supplants a farm implement used with less effeativeness for the same purpose. Estate ofKlemp, 119Cal. 41, 39 L. R. **A.** 340, 58 Pacr, Rep. 1062.” (Emphasis ours) The Court of Criminal Appeals had before it in Reaves v. State, 121Tex. Crim. Rep. 488, 50 S. W. (2d) 286 (1931)r question ofwhether or not a motor truck with trailer 

### exceeding forty-five feet in length andtransporting baled hay, cotton **and** feed stuffs, came within the exemption stated inArticle 827a, Section 3(a), supra. The court inhalding that the truck did not come within the implement ,ofhusbandry exception defined “implements ofhusbandry” under the statute as follows!

I

. . .An implement ofhusbandry 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 inAllred v. J. C. Engelman, 123 Tex. 205, 61S. W. (2d) 75 (1933) held that a water truck was an implement ofhusbandryHon. V. H. Sagebiel - Page 4 Opinion No. V-40

within the meaning efArticle 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 intransporting the owner’s Cotton to the gin, and farm products to market was an “implement ofhusbandry’ and therefore exempt from registration fees. Both of these cases arose prior to the amendment ofArticle 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 onthe decision ofthe question involved inthis 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 ofhusbandry” as that term is used inArticle 8270, Section 3(a), supra. The answer to the first question is therefore inthe 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. Itwas said by the court in Reaves v. State, supra, page 287, that:

”

. . iRecognining that of necessity some forms oftransportable machinery must move from one place to another, and that over said highways, exceptions were inserted inthe statute , , .* *The permission of the exceptions here apperring extends no further than to the implement or machine itself when in form or sine violative ofthe statute
. . .* It seems clear that the Legislature in using the term “highway building and maintenance machinery* intended to dcsignate aparticular type ofheavy machinery commonly **used** inthe construction andmaintenance of roads and hIghways as being exempt from the operation ofthe 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 atype 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, 61S. W. (2d) 75 (1933).

It is important to observe that ~thestatute does not qualify, the term ‘highway building and maintenance machinery? by requiring that the use ofthe machine be devoted solely to highway building and maintenance before It~111come 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) Ittherefore follows, in our opinion, that the term “highway building and maintenance machinery” was used to designate 8p8sticular 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* inp8rt 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 8type commonly seen inuse **today** by eonetruction companies inthe building ofhighways, 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 ofthe 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 inthe 

### absence of a contrary indication legislative enactments which are prospective in operation andwhich are couched in general and cornprehensive terms broad enough toinclude ~unknownthings 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 

### andpolicy ef the statute andthe evident meaning ofthe term used. 50 Am. Sec. 419, Zucrrro v, Strte, 82 Tex. Grim. Rep. 1, 197 L.R.A. 19198, 35-I PPlYinK this rule 

### ofconstruction the legislative designation of “highwayHon. 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.

Inanswer 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 inthe affirmative

. SUMMARY

1. A large four-wheeled power scraper exceed- &g ninety-six (96) inches inwidth, 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 ofhusbandry” under the exceptions contained inArticle 827a, Section 3(a), Vernon’s Annotated Criminal Statutes of Texas. 2. A large four-wheeled power scraper exceeding ninety-six 

### (96) inches inwidth, and capable of moving ten yards of dirt in each operation, which was temporarily moved **over** ahighway onto p*ivste land for uoe in constructing a privately owned **earthen** tank, held to,be “highway LuiIding 

### andmrintenance machinery” and within the exception contained inArticle 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 Youm-5very truly, ATTO lRNEY GENERAL 

### OF TEXAS

Assistant CDM:jt:sl APPROVED-OPINION.COlvlMITTEE BY BWB - CHAIRMAN