Conviction for operating upon a public highway a motor vehicle of forbidden length; punishment, a fine of $25.
Appellant was convicted in the county court of Wichita county at law of operating, upon a public highway of this state, a motor vehicle with trailer attached, of greater length than forty-five feet, in violation of the terms of chapter 282, Acts Regular Session, 42nd Legislature (1931), Vernon's Ann. P. C., art. 827a, sec. 1, et seq. Said truck and trailer were loaded with baled hay, cotton and feed stuffs.
Subdivision (c) of amended section 3 of said chapter (Vernon's Ann. P. C., art. 827a, sec. 3(c) is as follows: "No motor vehicle, commercial motor vehicle, truck, tractor, trailer, or semi-trailer shall exceed a length *Page 489 of thirty-five (35) feet, and no combination of such vehicles coupled together shall exceed a total length of forty-five (45) feet, unless such vehicle or combination of vehicles is operated exclusively within the limits of an incorporated city or town."
Appellant defended on the proposition that he was exempt from prosecution under the terms of subdivision (a) of said section 3, Vernon's Ann. P. C., art. 827a, sec. 3(a), the applicable part of which is as follows: "Except further, that the limitations as to size of vehicle stated in this section 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."
A jury was waived and the trial had before the judge of the lower court, who held appellant guilty apparently upon the theory that a truck with trailer attached, the combined length of which was fifty feet, and which was engaged in hauling a load upon a public highway, — was not an implement of husbandry.
A number of considerations arise. Trucks, or trucks with trailer attached, of more than forty-five feet length, — are forbidden the use of the highways of this state by statutes presumably enacted for the preservation of the roads and their rightful users. Recognizing that of necessity some forms of transportable machinery must move from one place to another, and that over said highways, — exceptions were inserted in the statute. These being in derogation are given strict construction.
The permission of the exceptions here appearing, extends no further than to the implement or machine itself when in form or size violative of the statute. A threshing machine (Advance Rumley Thresher Co. v. Evans Metcalf Implement Co.,103 Kan. 532, 175 P. 392) may, under these exceptions, be moved along a highway, same being an implement of husbandry, — but it would not follow that it might engage in the business of threshing while on such road.
It would clearly be an unwarranted inference to hold that inasmuch as there is no way of moving from one place to another farming implements, water drilling and road building machines, save along highways, ergo, permission to move such implements, etc., along such highways carries with it the right to use said highways as places on or along which such machines might engage in the use intended for same when conveyed to some destination. An implement of husbandry is something necessary to the carrying on of the business of farming, etc., without which the work cannot be done. 31 Corpus Juris, p. 256. Without discussing or deciding the practicability for use on a farm, as such implement, of a motor vehicle more than forty-five feet in length, — merely for the sake of the opinion it may be admitted that, if a farmer should desire to transport such vehicle along the highways from place of purchase to place of *Page 490 intended use, or from one place of use to another, this would be the "temporary propelling or moving" contemplated by subdivision (a) quoted above, and would hence be permissible. Vastly different, however, the legal status of a loaded truck, or truck and trailer, of forbidden size or length when itself engaged in the transportation of a load, — whether capacity or not, — along such highway. Instead of bringing itself within the exception made necessary for the harmonious conduct of business in all lines, such machine would be but using and abusing the exception in the statute for the accomplishment of the very things forbidden, i. e. the injury to such highway and its rightful users by the operation of a vehicle of forbidden size and length while engaged in traffic on such road.
Appellant cites Allred v. J. C. Engleman, Inc. (Texas Civ. App.) 40 S.W.2d 945; Wilbert's Sons Lumber Shingle Co. v. Ricard, 167 La. 416, 119 So. 411; Dowd v. Heuson,122 Kan. 278, 252 P. 260, 52 A. L. R., 823; Federal Agency Invest Co. v. Baker, 122 Kan. 460, 252 P. 262; and Printz v. Shepard,276 P. 260. (The last citation is to the wrong page and should be page 811, 128 Kan. 210).
The Allred case, supra, arose under an entirely different statute from that here involved, viz: under chapter 23, Acts Fifth Called Session, 41st Legislature (1930), Vernon's Ann. Civ. St., art. 6675a-1 et seq., which relates to the registration and licensing of all commercial motor vehicles regardless of size, character, etc., exempting, among others, implements of husbandry moved temporarily upon the highways. Said statute specifically requires all farm trailers and semitrailers to conform to all other provisions of law save and except those requiring license and registration, and denies to them exemption if their gross weight exceed 4,000 pounds. The question in said case was whether motor vehicles apparently of size and character permissible on highways were implements of husbandry when used solely to convey water from a source of supply to a growing citrus fruit farm for irrigation purposes, it being stated in the opinion that the operation of such water trucks was absolutely indispensable to the existence of the fruit trees, and that there was nothing of a commercial nature attached to such use of the trucks. The Court of Civil Appeals at San Antonio holding that, while it might be contended that such use was not within the letter of the law, same seemed within the spirit and intent thereof, concluded that such trucks so engaged were implements of husbandry, and that doubts should be resolved in favor of such construction as necessary to the preservation of the crops of the farmer. We have no difficulty in stating that under the facts of the case same is not authority against our conclusion as above announced. We note that the decision in said case might have been affected by the fact that there is in the statute there involved a specific declaration, not found in the statute governing the instant case, defining temporary operation. *Page 491
We see no application of the other case cited in which the exemption of trucks from levy of execution, etc., in various aspects, was upheld. The question deemed determinative here is entirely different. We think the legislative intent in the enactment of this statute only that which we have said to be our interpretation of same. We do not believe the Legislature would have intentionally injected a discriminatory element in a statute by legislating in favor of one form of business or occupation and against others. Nor do we thing they intended to say that a man who operated a farm or ranch in one part of the state of Texas might put in operation on the highways of this state one truck or a fleet of trucks of forbidden size or length conveying farm products to another farm or ranch twenty miles, or, for that matter 200 miles distant along such highways. It could be well said that, if a farmer could haul in a sixty-foot truck, along a public highway, a load of any weight he pleased to be fed to his cattle on a ranch 200 miles distant, it would appear odd that an oil company or a coal company, etc., etc., might not haul its output on the same sized truck on a highway to its refinery or coal yards, etc., etc.
Believing the case correctly decided, and that no error appears, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.