California Attorney General Opinion No. 80-1207

______________ ________________________________________________________________________ TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General : OPINION : No. 80-1207 : of : MARCH 19, 1981 : GEORGE DEUKMEJIAN : Attorney General : : Randy Saavedra : Deputy Attorney General : : THE HONORABLE G. B. CRAIG, COMMISSIONER, CALIFORNIA HIGHWAY PATROL, has requested an opinion on a question which has been revised and restated as follows: Do the width, height and length exemptions provided by Vehicle Code sections 36600, 36610 and 36615 for implements of husbandry incidentally operated on a highway apply to cotton trailers? CONCLUSION The width, height and length exemptions provided by Vehicle Code sections 36600, 36610 and 36615 for implements of husbandry incidentally operated, on a highway do not apply to cotton trailers. 1 80-1207 ANALYSIS Vehicle Code section 35100 establishes total width limitations for vehicles or their loads traveling on public highways. Comparable restrictions as to height and length are found in Vehicle Code sections 35250 and 35400 respectively. Vehicle Code section 36600 exempts “implements of husbandry incidentally operated, transported, moved or towed over a highway” from the “limitations as to width set forth in Chapter 2 (commencing with Section 35100 of Division 15 of the Vehicle Code.” Vehicle Code sections 36610 and 36615 exempt “implements of husbandry incidentally moved or operated over a highway” from height and length limitations respectively. In order for a vehicle to qualify as an implement of husbandry, it must fall under the general description found in Vehicle Code section 36000 or must be specifically designated as an implement of husbandry in some other section of the Vehicle Code. Section 36000 reads as follows: “§ 36000. ‘Implement of husbandry’ “An ‘implement of husbandry’ is a vehicle which is used exclusively in the conduct of agricultural operations. “An implement of husbandry does not include a vehicle which is designed primarily for the transportation of persons or property on a highway, unless specifically designated as such by some other provision of this code.” We have been informed and assume for the purpose of this opinion that a cotton trailer is designed primarily for the “transportation of property” (i.e., cotton) on the highway. Therefore it cannot be an “implement of husbandry” within the definition of section 36000. It can be an implement of husbandry only as specifically designated as such by some other Vehicle Code section. Vehicle Code section 36005 contains a list of vehicles which are to be considered implements of husbandry. Subsection (n) of section 36005 lists “[a]ny cotton trailer when used on the highways for the exclusive purpose of transporting cotton from a 2 80-1207 farm to a cotton gin, and returning the empty trailer to such farm, . . .” Therefore a cotton trailer is an implement of husbandry when used as described in section 36005(n). However, in order for any implement of husbandry to qualify for the width exemption of Vehicle Code section 36600 it must be an implement of husbandry “incidentally operated, transported, moved, or towed over a highway.” (Emphasis added.) The height and length exemptions (§§ 36610, 36615, respectively) apply to “implements of husbandry incidentally operated or moved over a highway.” (Emphasis added.) We analyzed the phrase “incidentally operated or moved over a highway” in 2 Ops. Cal. Atty. Gen. 331. Although that opinion dealt with exemptions to registration requirements under a superseded statute, the analysis has been used consistently by this office since that time in a number of opinions dealing with implements of husbandry. (See, for example, 11 Ops. Cal. Atty. Gen. 147 and 34 Ops. Cal. Atty. Gen. 116.) The analysis is as follows: “The word ‘incidentally’ is the adverbial form of ‘incident.’ The adjective ‘incidental’ has reference to something which is subordinate to, and dependent upon, and follows the existence of another and principal thing and means accessory; casual; collateral; occasional, or minor importance, something additional; something subordinate or casual. (31 Corpus Juris. 392.) “The word ‘incidentally’ characterizes the operation of an implement of husbandry on a highway when the operation is something naturally happening or appertaining as a subordinate or subsidiary feature to its use as an implement of husbandry, as, for example, the movement of a feed grinder over the highways from farm to farm for the purpose of grinding feed in different localities. (State v. Griswold, 280 N.W. 489) or the movement of a portable draw works over the highways from its place of storage to an oil well where it is used and then back to the place of storage. (Standard Oil Co. v. Philbrick, 47 C.A. 2d 591.) “In my opinion the word ‘incidentally’ does not characterize the movement over the highway of an implement of husbandry designed for transportation of property and used for the transportation of property over the highways. Such movement is not incidental to the principal usage but it is part and parcel of it.” 3 80-1207 Because a cotton trailer is designed for transportation of property on the highway and therefore only qualifies as an implement of husbandry “when used on the highways for the exclusive purpose of transporting cotton to a cotton gin . . .” (Veh. Code, § 36005(n)) it cannot be said to have only an incidental highway use. A cotton trailer’s central purpose is to transport cotton over the public highways; there is no other use to which this use is subordinate (i.e., incidental). A cotton trailer used in any way other than that described in section 36005(n) would not qualify as an implement of husbandry. Therefore, a cotton trailer for which highway use is incidental would not be an implement of husbandry as defined by the Legislature. In light of our conclusion that cotton trailer is not incidentally operated or moved on the public highways, it clearly does not fit the dimension exemptions of Vehicle Code sections 36600, 36610, and 36615 which by their language (quoted above) specifically apply only to implements of husbandry incidentally operated on the highway. It has been suggested that the fact that a cotton trailer is classified as an implement of husbandry pursuant to Vehicle Code section 36005(n) without having to meet the general requirements of Vehicle Code section 36000 means that the question of incidental use need not be addressed but that incidental use must be assumed for purposes of the various statutory exemptions. In our opinion the language of sections 36000 and 36005 does not lend itself to the above interpretation. Section 36000 by its plain language simply recognizes that there are specific statutory exceptions to the general prohibition against inclusion of vehicles designed for highway transportation in the category of implements of husbandry only incidentally operated over the highways. Where the language of a statute is clear, its plain meaning should be followed. (Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal. 3d 152.) Had the Legislature intended to exempt all implements of husbandry listed in section 36005 from the dimension restrictions of the Vehicle Code regardless of highway use, it could have easily done so specifically. When the Legislature created a broad exemption from registration requirements for implements of husbandry it passed section 36100 which reads as follows: “Implements of husbandry which are only incidentally operated or moved over a highway and implements of husbandry listed in section 36005 or 36015 are exempt from registration.” (Emphasis added.) 4 80-1207 If the vehicles listed in section 36005 were considered to be implements of husbandry “only incidentally operated or moved over a highway” by virtue of the language in section 36000, the reference to section 36005 in section 36100 would be redundant. “A cardinal rule of statutory construction is to avoid an interpretation which makes some of the statutory words surplusage.” (Morro Hills Community Services Dist. v. Bd. of Supervisors (4th Dist.) (1978) 78 Cal. App. 3d 765.) In order for the reference in section 36100 to section 36005 to have meaning it must be assumed that the term “implements of husbandry only incidentally operated or moved over a highway” does not include all the implements listed in section 36005. Any statement or implication in Indexed Letter 73–98, an unpublished opinion issued by this office dated June 15, 1973, or in any other opinion from this office which is inconsistent with this conclusion is hereby disapproved. A correct statement of the law on this issue can be found in 30 Ops. Cal. Atty. Gen. 340 in which we said on page 342: “In view of the foregoing it appears that those vehicles listed in paragraph (c) of section 142 are implements of husbandry within the meaning of that term as found elsewhere in the Vehicle Code (e.g., §§ 623, 670.05(e), 694(2) and 699). Of course, merely being an implement of husbandry does not entitle the vehicle to the exemptions provided by sections 694 or 695. . . .” (Emphasis added.) Although the above-cited opinion was based on the Vehicle Code as it appeared in 1958, before major reorganization of the entire code in 1959, the relevant language in the code sections cited above remained unchanged when they were renumbered and reorganized. Current section 36000 which provides: a general definition of “implement of husbandry,” is identical to its predecessor (§ 45) as it existed in 1958. The list of implements currently found in section 36005 is almost identical to the list in former section 142. (Several implements have been added to the list.) Like current sections 36600, 36610 and 36615, former code sections 694 and 699 provided exemptions from width, height and length limitations only for vehicles “incidentally operated or moved over a highway.” In light of this unchanged language it is our opinion that the above-quoted comment from 30 Ops. Cal. Atty. Gen. 340 is still valid. In summary, vehicles such as cotton trailers listed in section 36005 are not eligible for the width, height and length exemptions provided in Vehicle Code sections 36600, 36610 and 36615 simply by virtue of their inclusion in the category of 5 80-1207 implements of husbandry. They must in addition be vehicles only “incidentally moved or operated over a highway,” a criterium not met by cotton trailers as they have been described to this office. ***** 6 80-1207