In his motion for rehearing appellant takes issue with this court as to its conclusion that a truck and trailer loaded with farm produce was not "an implement of husbandry." In the case of Sproles et al. v. Binford, Sheriff, et al., appealed from the District Court of the United States for the Southern District of Texas (56 F.2d 189), the Supreme Court of the United States, in an opinion handed down May 23, 1932, 52 S. Ct., 581, 584, 76 L.Ed., ____, incorporates some of the findings of the trial court with reference to the motor vehicle act, chapter 282, Acts of the Regular Session of the 42nd Legislature (1931), Vernon's Ann. P. C., art. 827a, sec. 1, et seq. We copy from the opinion of the Supreme Court of the United States the finding of the trial court upon the issue now pertinent before this court. "In order to carry on the business of farming, 'implements of husbandry, plows, threshing machines, hay presses, etc.,' must be moved from one place to another. The same is true of machinery for water well drilling and highway construction. The uses of the highways for this sort of transportation are temporary only and essential to the public welfare."
It is evident that the trial court in its finding as to what was meant by the term "implements of husbandry" thought it had reference to the article itself, as is apparent from the further opinion of the Supreme Court in passing upon the question of discrimination. We quote further from the opinion as follows: "Fourth. We are thus brought to the question *Page 492 raised with respect to the discriminatory provisions of sections 3, 5 and 7 of the act which are assailed as denying to appellants the equal prosecution of the laws.
"Section 3 (a) (Note No. 7) provides that the limitations as to size of vehicle shall not apply to 'implements of husbandry, including machinery used solely for the purpose of drilling water wells, and highway building and maintenance machinery temporarily propelled or moved upon the public highways.' The District Court was of the opinion that the term 'implements of husbandry' has reference to such implements as 'tractors, plows, hay presses, etc.,' and that the use of the highways for this purpose, as well as for the movement of the described machinery, is but temporary. [D.C.] 56 F.2d 189, at page 190.
"Appellants urge that any implement, truck or vehicle used by a farmer is an 'implement of husbandry' and hence, that under this exception trucks used by farmers in connection with dairies or farms may be operated throughout Texas without any restriction as to size. We see no reason for attributing such a broad construction to the provisions, if its validity can be saved by a narrower one, and we are informed that the Court of Criminal Appeals of Texas has held that the term 'implement of husbandry' in this statute covers only farm machinery and not trucks used as an incident to the business of farming. Reaves v. Texas, ___ S.W.2d ___.
"Appellants also insist that the words 'temporarily propelled or moved upon the public highways' apply only to 'highway building and maintenance machinery' and not to 'implements of husbandry.' If the construction by the District Court of the term 'implements of husbandry' is correct, it would follow that the movement would be relatively temporary and infrequent as compared with the ordinary uses of the highways by motor trucks. We think that the exception, in the light of the context and of its apparent purpose, instead of being arbitrary relieves the limitation of an application which otherwise might itself be considered to be unreasonable with respect to the exceptional movements described."
The question before the Supreme Court of the United States was whether the exception of "implements of husbandry" was discriminatory. In the present case it is insisted that the truck and trailer as used by appellant was included within the terms "implements of husbandry." While the questions are different, it is apparent that in its view of the matter the Supreme Court of the United States took the same attitude with reference to what was meant by the term "implement of husbandry," as did this court in its original opinion, viz: that it had reference to the implement itself, such as a threshing machine or hay press, etc., and not to vehicles being used to transport farm produce from one point to another. The implication is that, if the broad construction contended for by appellant in the Sproles-Binford case be given the exemption clause *Page 493 under consideration, in the opinion of the Supreme Court of the United States it might bring such clause under condemnation as being discriminatory, but that such was not the case when given the limited construction found in our original opinion.
If it be shown that a truck and trailer was necessary to carry on the business of farming, then there would be no question that such implement could be transported along the public road from one farm to another under the provision of subdivision (a), section 3 of the act in question, Vernon's Ann. P. C., art. 827a, sec. 3 (a), which is quoted in our original opinion, although such truck and trailer exceeded the designated length, just as a hay press might be moved under the same circumstances, but we are impelled to adhere to our original opinion that the truck and trailer was not an implement of husbandry in contemplation of the act in question when used as in the present case.
The motion for rehearing is overruled.
Overruled.