                   February 13, 1952

Hon. William L. Taylor     Opinion No. V-1407
Prosecuting Attorney
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 of-
fice presents the following question:
          Does House Bill No. 812, Special Laws
     of the 42nd Legislature, R.S. 1931, ch. 156,
     p. 303 (Harrison County 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
     employment with Rarrison County?
          The pertinent sections of House Bill No. 812,
Special Laws 42nd Leg., R.S. 1931, ch. 156, p. 303
(Harrison County Road Law), provide in part:
          "Section 1. That Chapter 42, Acts of
     the First Called Session of the 37th Legis-
     lature, (the same being known as the David-
     son 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     all respects repealed insofar as the same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 authorized and
    empowered to employ a County Rngineer, whose
    duties, compensation and liabilities shall be
    such as are imposed by this Act. The said
    County Engineer shall devote his entire time
    to the construction and maintenance of the
    county Roads.
         "Sec. 3. That said County Engineer
    shall be appointed by the Commissioners'
    Court of said county within ninety (90) days
                                                     .   .




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


    after the passage of this Act at a Regular
    Meeting or Called Session thereof. That he
    shall have charge of all public road con-
    struction and public road maintenance, to-
    gether with the building of bridges and cul-
    verts, in his County except as is otherwise
    herein expressly provided. Said County En-
    gineer within twenty (20) days after his ap-
    pointment 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 suf-
    ficient sureties to be approved by the-County
    Ju;z,;t&inthe sum of Five Thousand ($5,000.00)
             conditioned upon said Engineer faith-
    fully a;d effectively discharging and perform-
    ing all the duties required by law or imposed
    on him by the Commissioners' Court of his
    County, which bond shall be filed and record-
    ed as other official bonds and shall not be
    void for the first recovery, but may be sued
    on from time to time until the whole 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 Commissionerst Court, and may be
    removed by said Commissioners' Court for any
    reason which in the opinion of said Court
     justifies removal. He shall receive such
    salary as may be determined by the Commis-
    sioners' Court to be oaid out of the Road
    and Bridge Fund. That said County Engineer
    shall subject to the orders of the Commis-
    sioners' Court, have general supervision over
    the construction and maintenance of all p b-
    lit roads and highways of his couute to-U
    nether
    ..- ~~   with
             ~~~  the bulldinn of bridees &d cnl-
    verts; he shall superinTend the~~rayingout of
    new roads subject to the orders of the Com-
    missioners' Court, and shall forthwith make
    or cause to be made a road map of the county
    showing the location, mileage, and classlfi-
    cation of the different roads and highways
    in said county. s . .5 (Emphasis added
    throughout.)
I.   -




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


                   An act should be given a fair, reasonable,
         sensible construction, ~oonsideringits language and
         subject matter with a view of accomplishing the legis-
         lative intent and purpose. In other words, construc-
         tion.should accord with 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 court will give due re-
         gard to-the language used in a statute or i;rovision
         thereof in determining whether it is mandatory or mere-
         ly directory. Words of permissive or mandatory charac-
         ter ~111 ordinarily be given their natural effect, but
         when there is room for constriictionpermissive words
         will be given mandatory significance or mandatory
         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 Con-
         struction (3rd Ed. 1943) 338, Sec. 4704:
                   I’
                       . A statute is to be construed
             with rifirence to its manifest object, and
             if the language is susceptible of two con-
             structions, one which will carry out and
             the other defeat such manifest object, It
             should receive the former construction. . . .
                  "If upon examination the general mean-
             ing and object of the statute is inconsistent
             with the literal import of any clause or sec-
             tion, such clause or section must, if possible,
             be construed according to that purpose. But
             to warrant the change of the sense to accom-
             modate it to a broader or narrower import, the
             intention of the legislature must be clear and
             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 legis-
              lative intent, and when such intent is as-
              certained it should be given effect even
Ron. William L. Taylor, page 4      (v-1407)                -_




     though literal meaning of words usea in
     the statute is not followed. . . ."
          In the light of the above authorities,
section 2 of House Bill 8,12 should be interpreted
as being mandatory in nature, although the actual
wording of it is merely directory, if such is the
intent of the Legislature as determined from the
act as a whole.
          Looking to the remainder of the act, we
find in Section 3 provisions which clearly indicate
a mandatory intention on the Eart of the Legislature.
The first sentence says that said County Engineer
shall be appointed by the Commissioners Court of said
county within ninety (90) days after the passage of
this Act at a Regular Meeting or Called Session there-
of.@ The balance of Section 3 and all of Section 4
indicate that the appointment of an engineer was to
be mandatory.
          In vSew of the foregoing, it is our opinion       -
that the Legislature intended to provide a county en-
gineer to be in constant charge of all public road
tionstructionand maintenance in Rarrison County, sub-
ject of course to over-all supervision by the~commis-
sioners' Court. See Att'y Gen. Op. V-1315 (1951).
Although the engineer serves at the will of the county
commissioners, the statute contemplates that upon the
removal of one county engineer another will be appointed.
                          SUMMARY
          House Bill Bo. 812; Acts 42nd Le
     cial Laws R.S. 193I, ch. 156, p. 303 f"
                                           Harrison
                                              Spe-,
     County Road Law), makes it mandatory for the com-
     mi5sioners' court of Harrison County to employ a
     county engineer and to have a county engineer in
     constant employment with HarrisonCounty.

APPROVED:                           Yours very truly,

J. C. Davis, Jr.                      PRICE DAEIEL
County Affairs Division             Attorney.Gener

E. Jacobson
Reviewing Assistant                 BY                      -,

Charles D. Mathews                             Assistant
First Assistant

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