State v. Pepper

MR. JUSTICE HOLLOWAY delivered the opinion of the court. James Pepper was convicted of a misdemeanor in a justice of the peace court of Fallon county and appealed to the district court, where he was again convicted, and from that judgment he appealed to this court. The cause was tried in each instance upon the following agreed statement: “The defendant, James Pepper, operated and drove upon the public highway in the county of Fallon and state of Montana a Ford truck and a Ford touring car during the entire season of 1923, to and including the twenty-sixth day of July, 1923, without having registered said motor vehicles or procured 1923' license or number plates.” By this appeal an attack is made upon the validity of the motor vehicle statute, enacted in 1917 (Chap. 75, Laws of 1917). The Act was amended in 1919 and 1921 and as thus amended is now found in Chapters 134 and 135, sections 1742-1763, Revised Codes of 1921. Section 6 of the Act (sec. 1760, Rev. Codes) was amended again in 1923 and that amendment is now found in Chapter 107, Laws of 1923. The amendments are not material to the determination of the questions presented upon this appeal, and for convenience the statute will be referred to as Chapter 75, Laws of 1917. Speaking in general terms, it provides that the secretary of state shall be registrar of motor vehicles; that every resident owner of such a vehicle shall annually, on or before January 1, apply to the registrar for registration of his vehicle and pay the prescribed fee; that the registrar shall issue to the owner a certificate of registration and two number plates; that every such vehicle, when driven upon the public highways of the state, shall display — 601 — such number plates, one in front and one in the rear; and that a violation of any of the provisions of the Act shall constitute a misdemeanor. For vehicles other than trucks the fees are graduated according to horse-power, while for a truck the amount of the fee is made to depend upon its rated carrying capacity. Before the amendment of 1923 the Act required the registrar to deduct from the total fees received the cost of making and mailing the licenses, certificates, license plates, and identification marks, and transmit one-half of the remainder to the county from which the registration came, for deposit to the credit of the general road fund of the county, and the other half to the state treasury for credit to the state highway fund. Under the amendment of 1923 the entire amount, after deducting the items of cost above, is transmitted to the county from which the application came, for deposit to the general road fund of the county. It is the contention of the defendant that the Act is invalid as to him and others similarly situated — that is to say, a private individual operating his own motor car for pleasure or convenience and not engaged as a dealer in motor vehicles or in operating such vehicles for hire: First, because it is a revenue measure; second, because the defendant was not engaged in “doing business in the state” within the meaning of that expression found in section 1, Article XII, of the state Constitution; and, third, because it cannot be justified as a police regulation. We enter upon our investigation of the subject indulging the presumption that the Act is a valid legislative enactment, and the defendant must sustain the burden of showing that it is unconstitutional beyond a reasonable doubt. However, we agree with him that he is not subject to an occupation tax permissible under section 1, Article XII, of the Constitution, and hence this Act must be justified upon some other ground, if at all. We may go further and assume that, if this statute is a revenue measure, it imposes a tax upon the inhabitants or property in the several counties of the state for county purposes, in — 602 — violation of the prohibition contained in section 4, Article XII, of the Constitution. On the contrary, if the Act is a reasonable police regulation it must be conceded that it is a valid enactment; hence the ultimate question arises: Is it a revenue measure or a reasonable police regulation? The history of the legislation upon the subject is of some interest as indicative of the legislative intention in enacting the statute. The Thirteenth Legislative Assembly enacted Chapter 71, Laws of 1913, by the terms of which every owner of a motor vehicle was required to pay annually a license fee graduated according to the horse-power of the vehicle. Section 1 of that Act declared that the purpose was to raise “revenue for the constructing, maintenance, and improvements of public highways.” It was manifestly a revenue measure, without any regulatory provisions whatever, and was declared to be invalid by the attorney general in an opinion rendered July 22, 1913, and no attempt was made to enforce it thereafter. At the same session Chapter 73, Laws of 1913, was enacted, which was apparently intended as a police regulation. It required an annual registration fee of $2 for each motor vehicle and contained numerous regulatory provisions. This Act, with a slight •amendment made in 1915 (Chap-. 65, Laws of 1915), continued in force until superseded by Chapter 75, which in terms repealed both of these former Acts. It is particularly noteworthy that in drafting the present statute, the legislature departed from the theory of Chapter 71 above, and follows closely the provisions of Chapter 73. While this is but a circumstance reflecting the- purpose of the legislature, in the light of the History any presumption that Chapter 75 was intended as a revenue measure would be a violent one, to say the least. Furthermore, the title and body of the Act seem to indicate a legislative intention to invoke the general police power of the state. The Act is entitled: “An Act to provide for the registration and identification of motor vehicles and operators thereof, and providing for the regulation of all vehicles operating upon the public highways of the state and providing'penalties for the violation of the provisions of this Act, and — 603 — providing for the disposition of all funds collected thereunder,” etc. In addition to the administrative feature referred to above, the Act prescribes somewhat elaborate speed and traffic regulations, the necessary accessories required to be furnished by the owner of a motor vehicle driven upon the public highways, the reports of violations of the Act to be made, and then among other things declares: “It is hereby made mandatory upon all peace and police officers of the state, of the counties of the state and of towns, cities and villages, to carry out the provisions of this Act and arrest the drivers or owners of any motor vehicle being used or driven in violation of any of the previsions of this Aet.” (Sec. 11, subd. (c).) In State ex rel. City of Bozeman v. Police Court, 68 Mont. 435, 219 Pac. 810, we announced the general rule as follows: “Where the fee is imposed for the purpose of regulation and the statute requires compliance with certain conditions in addition to the payment of .the prescribed sum, such sum is a license proper imposed by virtue of the police power; but when it is exacted solely for revenue purposes without any further condition it is a tax.” On the face of the Act it appears to meet the requirements of this rule and justifies the characterization of it as a police regulation, or, stated differently, it cannot be said from an inspection of the Act alone that it is a revenue measure. It is unnecessary to cite authorities which hold that the operation of motor driven vehicles upon the public roads is a proper subject of police regulation. In their brief counsel for defendant state frankly: “This defendant does not contend that the state has no right to require the owners of motor vehicles who drive them upon the public highways to register them; nor does he contend that in and about such registration the state cannot require the payment of the actual cost of such registration. * * * Both registration and regulation could be sustained under the police power,” etc. But the contention is made that this Act cannot be justified as a police regulation because the fee exacted is far in excess of the reasonable expense of regulation. In their brief counsel make this state — 604 — ment as a base from which to direct the attack: “It [the Act] produces more than half a million dollars per year. ” But there is not anything in the record to justify that statement or to indicate the number of motor vehicles in the state, the amount of the fee exacted from each one, the cost of administering the law, the net amount paid over to the counties or the cost of enforcing the Act. This court cannot take judicial notice of any of these matters (see. 10532, Rev. Codes; McKnight v. Oregon Short Line R. Co., 33 Mont. 40, 82 Pac. 661), and, if the fee is so unreasonable as to condemn the Act as a police regulation, the fact must appear from the Act itself, so far as this appeal is concerned. In State ex rel. City of Bozemans. Police Court, above, we said: “It is the general rule that the license fee required by an ordinance designed as a police regulation must not exceed the cost of issuing the license and the additional cost of inspection and supervision. However, this rule is subject to the qualification that the licensing authority is not limited, in fixing the amount of the fee, to the expense of direct regulation alone, but may adjust the fee to cover the cost of all incidental consequences which may reasonably subject the public' to expense as a result of the conduct of the business licensed. (17 R. C. L. 539.) The nature of the business and the necessity, character and extent of the regulations are the dominating elements which determine the reasonableness of the fee to be paid. (3 McQuillin on Municipal Corporations, sec. 1002; 17 R. C. L. 544.) “Cases may arise wherein it is possible for a court to say, as a matter of law, that a given fee is out of all reasonable proportion to' the expense of proper police inspection and supervision, as was done in Smith v. Mahoney, 22 Ariz. 432, 197 Pac. 704, but such is not the case before us. In considering a somewhat similar ordinance under like circumstances, the supreme court of Washington said: ‘ The amount of the license fee fixed by the ordinance for the business of pawnbroking is $100 per annum. There is nothing in the record to show what the actual coste are, or what a reasonable charge would be, for — 605 — enforcing the regulations prescribed, and we are asked to say, as a matter of law, that the amount fixed is so far in excess of any sum that could be legitimately charged for regulating the business as to enter the domain of taxation. We do not feel that we are authorized to do this in the case before us. It is not doubted that the business of pawnbroking is a proper subject of police regulation, nor is it doubted that it is within the province of the municipal authorities to make the business bear the costs of such regulation. As these costs must be prescribed in advance, they must of necessity be based upon estimates which it is the right and duty of the municipal authorities to make. The courts cannot, therefore, on any mere difference of opinion as to the amount necessary to meet these costs, say that they are excessive: They must be shown to be so by evidence, or else they must be so exorbitant and arbitrary as to leave no room for two opinions on the matter — so exorbitant and arbitrary as to show that they could not have been based upon any possible estimate of the probable cost. The amount of the fee in question here is not subject to these objections. It cannot be said that it will exceed even the actual cost of surveillance, much less can it be said' it is excessive or arbitrary.’ (City of Seattle v. Barto, 31 Wash. 141, 71 Pac. 735.) So likewise in this instance, the presumption is that the fee is reasonable until the contrary appears (17 R. C. L. 537), and in the absence of anything in this record to indicate that the fee exacted from persons engaged in the business of operating motor vehicles for hire exceeds the reasonable cost of proper supervision of the business, the ordinance is not open to the charge that it is unreasonable.” The language is peculiarly applicable here, and the decision in that case is determinative of the question now under consideration in this one. In Berry on Automobiles, third edition, section 104, the general rule is stated as follows: “While the power to tax is not included in the police power of the state, and any attempt to create revenue under the guise of police regulation will be declared invalid by the courts, the fact that the public treasury is incidentally augmented by the fee paid for an automobile — 606 — license will not have the effect of making such license fee a tax. The fee will not be declared illegal on this account if, under all the circumstances, it is not wholly unreasonable.” In Hendrick v. Maryland, 235 U. S. 610, 59 L. Ed. 385, 35 Sup. Ct. Rep. 140 [see, also, Rose’s U. S. Notes], the validity of the Maryland motor vehicle law was called in question. The license fee from $6 to $18 was graduated according to horse-power. The question now under consideration was treated at length, particularly with reference to interstate commerce. The court said: “The movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves. * * * The amount of the charges and the method of collection are primarily for determination by the state itself; and so long as they are reasonable and are fixed according to some uniform, fair and practical standard they constitute no burden on interstate commerce [citing cases]. The action of the state must be treated as correct unless the contrary is made to appear. In the instant case there is no evidence concerning the value of the facilities supplied by the state, the cost of maintaining them, or the fairness of the method adopted for collecting the charges imposed; and we cannot say from a mere inspection of the statute that its provisions are arbitrary or unreasonable.” Upon this appeal we shall not undertake to itemize the elements which may enter into a determination of the amount of the fees which may be exacted under a reasonable police regulation, nor shall we undertake to say what are the “incidental consequences which may reasonably subject the public to expense 'as a result of the” operation of motor driven vehicles upon the public highways. From an inspection of this Act alone it cannot be said that the fees exacted exceed the reasonable expense of administration and enforcement, and, in failing to show by evidence that the fees are exorbitant, defendant has failed to show that the Act is unreasonable. In Berry on Automobiles, third edition, section 102, it is said: “What is a reasonable fee must depend largely upon the — 607 — sound discretion of the legislature, having reference to all the circumstances and necessities of the case. It will be presumed that the amount of the fee is reasonable unless the contrary appears upon the face of the law itself or is established by proper evidence.” The fact that the net fees paid over to the several counties are converted into the road fund and that any expense of enforcing this Act is paid from revenue derived from general taxation is of no consequence in determining the character of the fee. (Cleary v. Johnston, 79 N. J. L. 49, 74 Atl. 538; State v. Hipp, 38 Ohio St. 199; State ex rel. Troll v. Hudson, 78 Mo. 302; Berry on Automobiles, 3d ed., sec. 105.) Finally it is urged that the Act is invalid so far as it assumes to impose a license fee, because the title does not indicate a purpose to impose or exact a charge of any character. The decision of this court in State v. McKinney, 29 Mont. 375, 74 Pac. 1095, is conclusive against the contention. While it is true that the title does not in express terms refer to a fee or charge to be exacted, the unity of title required by section 23, Article Y, of the Constitution, is observed notwithstanding the existence of many provisions in the body of the Act, if such provisions are germane to the general subject expressed in the title. (Hotchkiss v. Marion, 12 Mont. 218, 29 Pac. 821. See also, Jackson v. Neff, 64 Fla. 326, 60 South. 350.) The judgment is affirmed. Affirmed. Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.