The conviction is for violation of the provisions of Art. 827a, P. C., regulating the operation of vehicles on highways; penalty assessed at a fine of one dollar.
Section 6 of Art. 827a, P. C., contains the following:
"Any license and weight inspector of the State Highway department, having reason to believe (believe) that the gross weight of a loaded vehicle is unlawful, is authorized to weigh the same either by means of portable or stationary scales, and to require that such vehicle be driven to the nearest scales in the event such scales are within two miles. The inspector may then require the driver or operator to unload immediately such portion of the load as may be necessary to decrease the gross weight of such vehicle to the maximum gross weight specified by this Act."
See Vernon's Ann. Tex. P. C., Vol. 2, 1935 Pocket Supplement, p. 60.
The State's witness Hosmer Hunt, Constable of Precinct No. 5 of Grandview, Johnson County, Texas, testified that while patrolling the highway on the 4th day of January, 1936, he noticed appellant driving a commercial motor vehicle which appeared to be overloaded. He stopped the appellant and requested him to go back to Grandview and weigh the vehicle which he was driving. This appellant failed to do and was arrested by the constable.
Appellant testified that on the morning of January 4, 1936, he was stopped on Highway No. 2, between Grandview and Alvarado, Texas, by the witness Hunt, who told him to return to Grandview and weigh his truck, which the constable thought was overloaded. Appellant said he was in a hurry and refused to weigh his truck because he did not think it was overloaded. He also testified that he did not think he was violating the law in refusing to stop and weigh his truck when requested to do so by a constable.
The State's Attorney before this court concedes that the statute in question (Sec. 6 of Art. 827a) confers authority only upon License and Weight Inspectors of the State Highway Department to require drivers and operators of motor vehicles to have their trucks and contents weighed; and that constables and other peace officers of the state are without such authority. In this view we are inclined to concur.
The judgment is reversed and the cause remanded.
Reversed and remanded. *Page 98
ON MOTION FOR REHEARING.