                                                   Jan. 27, 1947


             I&en. V. H. Sagebiel                                Opinion No. V-48
              Cbunty Attorney
             Gillespie  County                                   Re:   Construction   of Article
             Fredericksburg,    Texas                                  8,27a, Section 3(a), Vera-
                                                                       nen’s Annotated Criminal
                                                                       Statutes of Texas, Penal
         4   ‘. , .”.i
                                                                       Code, in reference    to im-
                                                                       plements of husbandry,
                                                                       and highway building and
                                                   .                   maintenance    machinery.
   ..
             Dear        Sir:

                      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 transpor-
                         tation 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 con-           ‘.~
                         tended 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.



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



           1. Is the power scraper described   an “implement  of hus-
 bandryq 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 re-
 garding highway and maintenance      machinery  in Article 8270, Sec-
 tion 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 Legis-
 lature, 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 ex-
        ceed nine (9) feet, and except further, that the limi-
        tations as to size of vehicle stated in this section
        shall not apply to implements     of husbandry,   includ-
        ing 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 ve-
 hicle 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 inas-
 much 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. Mc-
 Kinxey, 114 S. W. (2d) 33g (Tex. Civ. App. 1938).

             The term “implementsof       husbandry” has not been de-
   fined 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 til-
      the 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 Legisla-
tut)  defines “implements     of husbandry” as follows:

          “(8) ‘Implements    of Husbandry.’    Farm imple-
      merits, 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 imple-
      ment of husbandry.      Horse rakes, gang plows,
      headers,   threshing machties,   and combined har-
      vesters   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 be-
      cause 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 “im-
plements 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, Rehear-
ing 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 hus-
bandry” to the act, and they therefore throw no light on the deci-
sion 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, ex-
      ceptions were inserted in the statute , , .*

          *The permission   of the exceptions here apperr-
      ing extends no further than to the implement or ma-
      chine 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 dcsig-
nate a particular    type of heavy machinery      commonly used in the
construction    andmaintenance      of roads and hIghways as being ex-
empt from the operation of the statute where it was only tempo-
rarily 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 mrin-
tenance, 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 requir-
ing that the use of the machine be devoted solely to highway build-
ing 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 equip-
ment commonly used in connection with highway maintenance              and
construction.      The fact that the machine might; at times, be dedi-
cated to some other use does n&within          itself eliminate it from the
clcssificrtion.

          Webster’s New International        Dictionary,  Second Series,   un-
abridged, 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 four-
       wheeled 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, arti-
ficial 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 im-
provement    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 corn-
prehensive   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 mean-
ing 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) quoted-
       above, and would hence be permissible       . , .” (Em-
       phasis ours)

          Based upen the above and foregoing,     we are of the opinion
that the four-wheeled  power scraper described      is “highway build-
ing 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 affir-
mative .

                                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 ex-
       ceptions contained in Article      827a, Section 3(a),
       Vernon’s   Annotated Criminal Statutes of Texas.
           2. A large four-wheeled      power scraper exceed-
       ing 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*i-
       vste land for uoe in constructing      a privately owned
       earthen tank, held to ,be “highway LuiIding and mrin-
       tenance machinery”      and within the exception con-
       tained in Article 827r, Section 3(a), Vernon’s       An-
       notated Criminal Statutes of Texas, even though
      temporarily     devoted to construction     of an earthen
       tank rather than kighway building and maintenance..~.
                                      You m-5 very truly,
APPROVED                            ATTO lRNEY GENERAL      OF TEXAS



                                                             Assistant

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                 BY   BWB - CHAIRMAN
