Honorable Harry J. Schulz
Cotinty.'.Attorney
Live Oak County
George West, Texas
Dear Sir:            Opinion NO. 0-1611
                     Re: Is it necessary that over-weight
                          and over-size motor vehicles be
                          registered and licensed under-ear-
                          title 6675a-2, Vernon's Annotated
                          Revised Civil Statutes, in a base
                          where the Highway Department has
                          granted a special permit for the
                          movement of such vehicles as pro-
                          vided In Section 2, Chapter 282;
                          Acts of the Forty-second Leglsla-
                          ture?
       Your letter addressed to the Attorney General whereln
you requested an opinion of this department on the question as
substantially stated above has been received and given very
careful consLderatLon. In order that the particular question
submitted by you may be made evidence In this opinion, we
herewith copy so much of your letter as is pertinent, to-wit:
       "A is the owner of two old Army Mack trucks.
    On one of them he has built a portable, collaps-
    able metal tower to be used In building con-
    structlon work. The tower and all equipment
    thereon is welded thereon and cannot be readily
    dismantled. On the other he has buLlt and
    erected a metal concrete mixer which Is welded
    to the vehicle supported by guides and braces.
    This vehicle Is also to be used in building
    construction work. Both vehicles are moved upon
    the public highways by their own motor power.
       "Both of the vehicles the way they are
    equipped are more than 96 inches in width. They
    are also over-length, over-height and over-
    weight as set out in Art. 827a, Penal Code. The
    vehicles themselves without the equipment there-
    on are not more than 96 inches.wlde. In fact as
    you may know, these old Army Mack trucks are
Honorable Harry J. Schulz, page 2,       o-1611


    about the same size of some present trucks SO
    far as width is concerned.
      "Neither of these vehicles have any registra-
   tion license plates as Is required by Art. 6675a-2,
   Vernon's Civil Statutes, and Art. 807b, Sec. 5,
   Penal Code. A, the owner of the trucks, applied to
   and received from the State Highway Department
   permits to move said trucks as equipped from San
   Antonio to Brownsville through Live Oak County,
   the permits being Issued under Art. 6701a, Ver-
   non's Civil Statutes, in spite of the fact that
   the trucks have no registration license plates.
      "A says that the tax collector of Bexar County,
   the county of his residence, refuses to issue him
   license plates for said vehicles because of Art.
   6675a-8b, Vernon's Civil Statutes, which stipu-
   lates that no motor vehicle shall be reglstered
   and licensed which has a total outside width, in-
   cluding any load thereon, of more than ninety-
   six inches, A having applied for such license
   plates after he built such equipment on the trucks
   and after the State Highway Department had issued
   him permits under Art. 6701a.
      "The county highway patrolman arrested the
   drivers of these trucks in Live Oak County for
   ,operatingcommercial motor vehicles on a public
   highway thereln without registration license
   plates. The arrests were made under valid warrants
   of arrest issued prior to such arrests by a jus-
   tice of the peace of Live Oak County upon com-
   plaints filed with such justice before such war-
   rants of arrests were Issued, the county highway
   patrolman and justice acting under my advice.
   The drivers were taken ~mmedlately before the
   justice, had the amounts of their bonds fixed,
   and a date agreeable to such drivers was set for
   trial, the drivers pleadIng not guilty. The
   trucks were not seized nor lnterferred with in
   any way except, of course the drlvers had been
   arrested. The drivers were told that if they
   ‘againattempted to operate such trucks without
   licenses they would agafn be arrested on a sim-
   ilar charge. At all times the trucks were free
   to-be mov&, except the drlvers and A~were told
   that any movement of the trucks or operation
   thereon would result in an arrest of the drivers
   in such movement or operation was in violation
Honorable Harry J. Schulz, page   3       o-1611


    of the Penal Code.
      "The questions I wish to ask you are these:
   Does the Illegal width of these trucks and the
   issuance of the permits by the State Highway De-
   partment excuse these trucks from the provisions
   of Art. 807b, Sec. 5, Penal Code, and Art. 6675a-2,
   which require commercial motor vehicles-such as
   these to be licensed? In other words, are the
   drivers of these trucks guilty of operating com-
   mercial motor vehicles without license plates.
   It is my contention that the drivers are guilty
   of such offense and that the trucks must be
   licensed or kept off the highways until they are
   remodeled or reconstructed so that they can be
   licensed, and that the inability of A to get
   these trucks licensed under~the present facts
   is no defense to the criminal prosecutions."
       We have given particular attention to the various
statutes and acts mentioned in your letter, from which it ap-
pears that the only question to be determined Is as to whether
or not the owner of the Army Mack trucks has violated the
criminal law of the state by operating the'same under the
special permit granted to him by the Highway Department.
       Article 807b, Vernon's Annotated Penal Code, is a~codi-
fication of Section 2, Chapter 282, Acts of the Forty-second
Legislature, which provides in part as follows:
      "Section 2. It shall be unlawful and con-
   stitute a misdemeanor for any person to drive,
   operate or move, or for the owner to cause or
   permit to be driven, operated, or moved on any
   highway, any vehicle or vehicles of a size or
   weight exceeding the limitations stated in this
   act or any vehicle or vehicles which are not
   constructed or equipped as required in this act,
   or to transport thereon any load or loads exceed-
   ing the dimensions or weight prescribed in this
   act; provided the Department, acting directly or
   through its agent or agents designated in each
   county shall have and is hereby granted authority
   to grant permits limited to periods of ninety
   (90) days or less for the transportation over
   State highways of such overweight or oversize
   or overlength commodities as cannot be reason-
   ably dismantled or for the operation over State
   highways of super-heavy and oversize equipment
   for the transportation of such oversize or over-
Honorable Harry J. Schulz, page 4        o-1611



    weight or overlength commodities as cannot be
    reasonably dismantled; provlded, that any haul or
    hauls made under such permits shall be made by
    the shortest practicable route; . . . . . . . .'I
       We note from the brief submitted by you, which we have
also carefully considered, and for which we thank you, that
it is your contention that Article 6701a,  Vernon's Annotated
Texas Civil Statutes, applies only to those motor vehicles
that have already been, or can be licensed under the provi-
sions of the registration  laws; and that the permit from the
State Highway Department did not excuse the owner of these
trucks from registering the same and obtaining license plates
as provided in Article 6675a of the same statutes. In other
words, it Is your contention that the owner of these trucks
is subject to prosecution under the provisions of the law as
shown in Article 807b of Vernon's Annotated Penal Code.
       We disagree with your conclusion as to the application
to be given to these various statutory provisions with respect
to the fact.situation stated in your letter. 'On the contrary,
this department is of the opinion that the owner of these
trucks did not violate any penal law of this state while oper-
ating such trucks under the conditions stated in your letter.
       The provisions of the above Article 6701a and the sub-
stantial provisions of Section 2, Chapter 282, Acts of the
Forty-second Legislature, were first enacted as Chapter 41 of
the Acts of the Forty-first Legislature, Second Called Session.
This law in substance provide8 that when any person, firm or
corporation shall desire to operate over a state highway super-
heavy or oversize equipment for the transportation of such com-
modities as cannot be reasonably dismantled, and where the
gross weight or size exceeds the limit allowed by law to be
transported over a state highway, the State Rlghway Department
may upon application, issue a permit for the movement of
such equipment upon some designated highway when the depart-
ment is of the opinion that this may be done without material
damage to the highway.
       Section 3 of said act provides in substance that before
the issuance of any such permit the applicant for the same
shall file with the State HIghway Department a bond in an a-
mount to be set and approved by the department, payable to the
department, and conditioned that the applicant will pay to
said department any damage that might be sustained to the high-
ways by virtue of the operation of the e uipment, and shall
accompany the application with a fee of 1 5.00 payable to the
Highway Department to be deposited in the Treasury of the
State of Texas to the credit of the Hlghway Maintenance Fund.
.




    Honorable Harry J. Schulz, page 5                o-1611


           Section 4 of said Act provides In substance that such
    EE;itfbjhen issued, shall show: (a) The na;eof the appli-
               the date of the application, (c) s nature of the
    Stat; Highway Engineer or Division Engineer,      the kind of
    equipment to be transported over the highway, together with
    the weight and dimensions of the same, and that it shall
    state the highways and distance over which the same is to be
    transported.
               Section   5   of,said act is as follows:
               "Sec. 5. The fact that the conditions often
            require the transportation of heavy and large com-
            modlties over some highways creates an emergency
            and imperative public necessity and that the con-
            stltutlonal rule requiring bills to be read on
            three several days be SUSpended, and the same is
            hereby suspended, and that this Act take effect
            and be in force from and after its PaSSage, and
            it Is so enacted."
           Inasmuch as you state that the owner of the trucks in
    question was in possession of a permit issued by the State
    Highway Department, which authorized him to move said trucks
    over the specified route or highway, it is to be presumed
    that the department did its duty and followed the law in is-
    suing     Said   perUIft.

           It is thought, also, thatthe registration and licensing
    law respecting motor vehicles, as shown by the various sections
    of Article 66758 1 - 8b aforesaid, has no direct application.
    According to the plain provisions of this article, these trucks,
    equipped as they are shown to be, were not subject to registra-
    tion   In that they could not be registered because they were
    oversize and overweight. Consequently, if they can be moved
    upon any highway of this state, it must be by virtue of the
    special permit granted to the owner by the Highway Department;
    for if the trucks were subject to be registered, there could
    have been no occasion or excuse for the Issuance of the special
    permit by that department.
           It Is to be noted that the fees to be charged and the
    licenses provided for by ,virtueof Article 6675a l-8b, Vernon's
    Annotated Texas Civil Statutes, are predicated upon an annual
    basis; that is, the owner of a vehicle which has been register-
    ed under such law is given a license or prlvllege to operate
    his motor vehicle upon any highway of the State, unless other-
    wfse specifically designated, at any and all times during the
    year for which the license Is Issued. No such right is con-
    ferred upon the holder of a special permit granted in the terms
Honorable Harry J. Schulz, page 6        o-1611


of law by the Highway Department. The very words of the
statute which authorizes the issuance of such permit, dispel
any such idea. But the law out of constitutional regard for
the use of one’s property in such way as not to work a con-
fiscation of the same, authorizes the Highway Department to
permit the movement of such-motor vehicles as the trucks in
question for a limited time, and over specially designated
routes and under rigid police regulations.
       It is believed that the language of the Circuit Court
of Appeals in the case of Sproles vs. Blnford, 52 F. (2d)
730, 736, in its discussion of this "permit", is specially
applicable. That court, after quotin Section 2, Chapter 282,
Acts of the Forty-second Legislature 7Article 807b, Section
5, Vernon's Penal Code) said, at page 736:

      "The plain purpose is to permit and make provi-
   sion for the transportation over the highways of
   these commodltles, extraordinary in length, weight
   or size whi.ch (and the equipment upon which they
   are handled).cannot be reasonably dismantled, and
   which are not everyday, but are unusual, loads,
   and which, but for thls or some similar provision,
   could not pass over the highways at all. The au-
   thority given by this section to the highway de-
   partment and Its agents in each county is not to
   suspend the laws, as was the power conferred, or
   attempted to be conferred, upon the highway depart-
   ment In Ex parte Falson, 93 Tex. Cr. R. 403, 248
   3. W. 343, but Is of a fact-finding and administra-
   tive nature. Trimmier v. Carlton, 116 Tex. 591,
   296 3. W. 1070, and cases there cited. Texas Jur-
   isprudence, vol. 9, section 70, and cases cited ,in
   footnotes. Ruling Case Law, vol. 6, Sections 175
   and 179."    (Italics ours)
        The same Legislature that enacted Senate Bill No. 10,
Chapter 41, Second Called Session of the Forty-first Legisla-
ture, which is the act providing for permit8 to operate over-
size and overweight equipment upon the limitations discussed,
also enacted House Bill No. 6, which is Chapter 88 of the
Acts of said Legislature, and which, among other things, pro-'
vided for the registration and licensing of motor vehicles.
This later act expressly repealed a number of Statute8 and
prior acts of the Legislature, and provided generally that
all of the laws in conflict therewith were repealed; but
Chapter 41 was not mentioned among the statutes and acts that
were expressly repealed.
       It is the conclusion of this department that these two
.   -




    Honorable Harry J. Schulz, page 7         o-1611


    acts of the same Legislature do not necessarily conflict and
    are not repugnant the one to the other, when construed as
    this department has construed them, in that the first enact-
    ment must be construed as a limitation or exception to the
    provisions of the later act. Thls conclusion is in record
    with well established principles of law. In 39 Texas Jurls-
    prudence, page 146, it is satd:
           "The Legislature is supposed to be governed by
        one spirit and policy during a session, and no-
        thing short of a direct repeal in express terms,
        or such irreconcilable repugnancy as that both
        acts,cannot stand together, will justify a court
        In holding an act is repealed by another act pass-
        ed at the same session . . . . . . . .
           "A liberal construction Is permissible for the
        purpose of sustaining an act as against an impli-
        cation'of its repeal by another act passed at the
        same session. The two acts ~111 be construed to-
        gether, regarded as one statute, and if possible
        they will be so construed that both may stand.as
        one embodiment of the legislative will. For this
        purpose, the former act may be regarded as an ex-
        ception to the provisions of the later."
           Numerous cases are cited in the footnotes. See especial-
    ly Cain vs. Texas, 20 Tex. 355; Gillam vs. Matthews, 122 S.W.
    (26) 348.
           It is therefore the opinion of the Attorney General
    that the answer to your question must be that the issuance of
    the permit by the Highway Department Was legal authority for
    the owner of these trucks to operate or move the same over that
    highway, particularly designated by the Highway Department in
    its permit, and In the manner as therein specifically set out
    by the department.
                                        Yours very truly
                                     ATTORNEY GRNRRAL OF TEXAS
    WFM:FG :wc                          By sfi. F. Moore
                                             W. F. Moore
                                             First Assistant
    APPROW   FNR 24, 1940
    s/Gerald C. Mann
    ATTORNEY GENERAL OF TEXAS
    This Oplnlon Considered And Approved In Llmlted Conference
