Ashland Transfer Co. v. State Tax Commission

CourtCourt of Appeals of Kentucky
Writing for the CourtTHOMAS, J.
Citation247 Ky. 144,56 S.W.2d 691
Decision Date16 December 1932
PartiesASHLAND TRANSFER CO. et al. v. STATE TAX COMMISSION et al. AETNA OIL SERVICE v. SAME.

56 S.W.2d 691

247 Ky. 144

ASHLAND TRANSFER CO. et al.
v.
STATE TAX COMMISSION et al.

AETNA OIL SERVICE
v.

SAME.

Court of Appeals of Kentucky

December 16, 1932


Appeal from Circuit Court, Franklin County.

Consolidated actions by the Ashland Transfer Company and others and by the Aetna Oil Service against the State Tax Commission and others. From a judgment dismissing the petitions, plaintiffs appeal.

Affirmed. [56 S.W.2d 692]

Leslie Morris, of Frankfort, for appellants.

Bailey P. Wootton, Atty. Gen., and Gardner K. Byers, Asst. Atty. Gen., for appellees.

THOMAS, J.

These two consolidated actions, separately filed in the Franklin circuit court by the respective appellants, as plaintiffs below, against the state tax commission, its members, and other related administrative boards and their members, present the question of the constitutionality of chapter 106 of the Acts of 1932, which is on page 537 of the Session Acts for that year. Its title reads: "An act to further regulate motor-trucks, semitrailer trucks, semi-trailers and trailers to enlarge the powers of the State Highway Commission, County Courts, and cities and incorporated towns in respect thereof, to provide for enforcement of the act and penalties for violation thereof, and repealing all laws inconsistent therewith," and from which it will be seen that it is confined to the regulation of the use on the public highways of the commonwealth of motortrucks carrying freight or merchandise, and has nothing to do with privately owned automobiles not so employed, nor to passenger busses which are operated on the public roads as carriers of passengers.

The plaintiff in the first case in the caption is strictly a common carrier, while the one in the second case is engaged in carrying its own freight or merchandise, and they each operate in both interstate and intrastate transportation. In their petitions they attack certain provisions of the statute upon the grounds (a) that they are arbitrary and confiscatory, and by reason of which plaintiffs, if subjected to the attacked provisions, would be deprived of their property without due process of law, and would also be deprived of the equal protection of the law contrary to provisions in the Federal Constitution (Amendment 14); and also upon ground (b) that section 12 and subsection (c) of section 13 of the act delegate legislative powers to the state highway commission and to the various county judges of the state in exercising supervision in the application of the provisions of the statute to state and county roads. Defendants by appropriate motions and pleadings combated each of those contentions, and upon submission the trial court denied the relief sought by plaintiffs in their petitions and dismissed them, and to reverse that judgment they prosecute this appeal.

The arguments in support of ground (a) are not recent or new ones, since it has become, especially in recent years, quite common for litigants to employ such "conventional methods of presenting constitutional questions" in efforts to nullify statutes when they (generally utilities companies) are restrained by the attacked statute from operating their business contrary to their unqualified desires; and in the majority of cases it is upon the theory either that the right of the particular regulation does not exist at all, or, if it does, that some one else is a better judge of the limitations imposed than is the Legislature. The attacked act defines motortrucks, trailers, and semitrailers, and [56 S.W.2d 693] prescribes their maximum length, loaded weight, height, etc., and forbids altogether the use of a trailer "on any highway." The maximum load is 18,000 pounds; the maximum height is 11 1/2 feet; the maximum width is 96 inches. The maximum length of a motortruck alone is 26 1/2 feet, and of a semitrailer truck not exceeding 30 feet. Other sections provide a limitation of speed as applicable to transportation both in and out of incorporated towns, and exempts certain trucks operating within incorporated towns, and named radius distances around it, from certain provisions of the act.

It is argued in support of ground (a), (1) that some of the prescribed maximum limitations, and especially the ones as to the length and width, are arbitrary, and their application would operate to confiscate the property of plaintiffs, since the trucks they are now operating exceed those limitations; (2) that the act is unconstitutional because subsection (d) of section 13 postponed the application of the maximum weight for trucks operated over the highways until January 1, 1933, and did not postpone the enforcement of the enacted maximum length of trucks and semitrailer trucks; and (3) that the imposition of the regulations of the act would impair the obligations of plaintiffs' contracts with patrons for the carriage of freight, and the one which they claimed to have with the commonwealth by virtue of their complying with the license statutes and other regulatory measures under prior statutes, which the attacked act superseded. Other more detailed objections are made in support of ground (a), but they are of far less merit than the three we have mentioned, and are not strenuously urged in brief of counsel.

The authority which is embraced within what is known as the "police power" of a state or government is sometimes difficult to define; but all possess it, and its exercise is, perhaps, the most useful power that a government employs in the administration of the public affairs of the state for the protection of its citizens. We are concerned in this case only with public highways. Their regulation, maintenance, and protection, as well as the safety of travelers upon them, is everywhere and by all courts conceded to be within the police power of the jurisdiction maintaining them. Such regulatory authority in the exercise of the state police power may also apply to and operate upon nonresidents or those engaged exclusively in interstate commerce, as well as those engaged in intrastate commerce, and especially so when the field of regulating interstate commerce by highway traffic has not been taken over by the federal Congress, and which latter is true at this time. Hence, in the case of Continental Baking Co. v. Woodring (D. C.) 55 F.2d 347, 351, the court, in passing upon questions similar to those we have in this case, said: "it is likewise settled that such users, although nonresidents and although engaged exclusively in interstate commerce, may be required to contribute to their [highway] cause and upkeep. The highways are public property," etc.

All of the provisions of the Kansas act were upheld in that opinion, and an appeal was prosecuted to the Supreme Court of the United States where the judgment of the trial court was affirmed in the case of the same style reported in 286 U.S. 352, 52 S.Ct. 595, 598, 76 L.Ed. 1155. The opinion of the Supreme Court was written by Chief Justice Hughes, and in it he approvingly incorporated a part of the trial court's opinion, saying: "The state of Kansas has constructed at great expense a system of improved highways. These have been built in part by special benefit districts and in part by a tax on gasoline sold in the state and by license fees exacted of all resident owners of automobiles. These public highways have become the roadbeds of great transportation companies, which are actively and seriously competing with railroads which provide their own roadbeds; they are being used by concerns such as the plaintiffs for the daily delivery of their products to every hamlet and village in the state. The highways are being pounded to pieces by these great trucks which, combining weight with speed, are making the problem of maintenance well-nigh insoluble. The Legislature but voiced the sentiment of the entire state in deciding that those who daily use the highways for commercial purposes should pay an additional tax. Moreover, these powerful and speedy trucks are the menace of the highways."

To the same effect is the case of Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 585, 76 L.Ed. 1167; the opinion being written by the same distinguished Chief Justice. The case involved a similar regulatory statute enacted by the Legislature of the state of Texas, and to which similar constitutional objections were interposed. But in answering and denying all of them the court said: "In exercising its authority over its highways the state is not limited to the raising of revenue for maintenance and reconstruction, or to regulations as to the manner in which vehicles shall be operated, but the state may also prevent the wear and hazards due to excessive size of vehicles and weight of load. Limitations of size and weight are manifestly subjects within the broad range of legislative discretion. To make scientific precision a criterion of constitutional power would be to subject the state to an intolerable supervision hostile to the basic principles of our government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to secure. Ohio Oil Co. v. Conway, 281 U.S. 146, 159, 50 S.Ct. 310, 74 L.Ed. 775. When the subject lies within [56 S.W.2d 694] the police power of the state, debatable questions as to reasonableness are not for the courts but for the Legislature, which is entitled to form its own judgment, and its action within its range of discretion cannot be set aside because compliance is burdensome. Standard Oil Co. v. Marysville, 279 U.S. 582, 586, 49 S.Ct. 430, 73 L.Ed. 856; Price v. Illinois, 238 U.S. 446, 452, 453, 35 S.Ct. 892, 59 L.Ed. 1400; Hadacheck v. Sebastian, 239 U.S. 394, 410, 36 S.Ct. 143, 60 L.Ed. 348, Ann. Cas. 1917B, 927; Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303, 54 A. L. R. 1016; Zahn v. Board of Public Works, 274 U.S. 325, 328, 47 S.Ct. 594, 71 L.Ed. 1074. Applying this principle, this Court in...

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30 practice notes
  • Ravitz v. Steurele
    • United States
    • Court of Appeals of Kentucky
    • December 21, 1934
    ...v. City of Paducah, 244 Ky. 759, 52 S.W.2d 704; Shaw v. Fox, 246 Ky. 343, 55 S.W.2d 11, 14; Ashland Transfer Co. v. State Tax Commission, 247 Ky. 144, 56 S.W.2d 691, 87 A. L. R. 534; Commonwealth v. C. & O. Ry. Co., 251 Ky. 382, 65 S.W.2d 95. Within the meaning of our Constitution, &quo......
  • Southwest Engineering Co. v. Ernst, No. 5881
    • United States
    • Supreme Court of Arizona
    • December 20, 1955
    ...have increased, particularly where it is impractical to lay down a comprehensive rule. Ashland Transfer Co. v. State Tax Commission, 247 Ky. 144, 56 S.W.2d 691, 87 A.L.R. In the present case there is no uncertainty as to the principal duties required of the Land Commissioner under Sections ......
  • Johnson v. Commonwealth ex rel. Meredith
    • United States
    • Court of Appeals of Kentucky
    • August 26, 1942
    ...been vested in executive or administrative agencies and sustained as valid." See, also, Ashland Transfer Co. v. State Tax Commission, 247 Ky. 144, 56 S.W.2d 691, 87 A.L.R. 534; Spahn v. Stewart, 268 Ky. 97, 103 S.W.2d 651. Compare Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387. Always ......
  • Burton v. Mayer
    • United States
    • Court of Appeals of Kentucky
    • June 7, 1938
    ...Association, 262 Ky. 198, 90 S.W.2d 22; Talbott v. Laffoon, 257 Ky. 773, 79 S.W.2d 244; Ashland Transfer Company v. State Tax Commission, 247 Ky. 144, 56 S.W.2d 691, 87 L.R.A. 534; Commonwealth Life Insurance Company v. City of Paducah, 244 Ky. 756, 52 S.W.2d 704; Fiscal Court of Pendleton ......
  • Request a trial to view additional results
30 cases
  • Ravitz v. Steurele
    • United States
    • Court of Appeals of Kentucky
    • December 21, 1934
    ...v. City of Paducah, 244 Ky. 759, 52 S.W.2d 704; Shaw v. Fox, 246 Ky. 343, 55 S.W.2d 11, 14; Ashland Transfer Co. v. State Tax Commission, 247 Ky. 144, 56 S.W.2d 691, 87 A. L. R. 534; Commonwealth v. C. & O. Ry. Co., 251 Ky. 382, 65 S.W.2d 95. Within the meaning of our Constitution, ""'speci......
  • Southwest Engineering Co. v. Ernst, No. 5881
    • United States
    • Supreme Court of Arizona
    • December 20, 1955
    ...have increased, particularly where it is impractical to lay down a comprehensive rule. Ashland Transfer Co. v. State Tax Commission, 247 Ky. 144, 56 S.W.2d 691, 87 A.L.R. In the present case there is no uncertainty as to the principal duties required of the Land Commissioner under Sections ......
  • Johnson v. Commonwealth ex rel. Meredith
    • United States
    • Court of Appeals of Kentucky
    • August 26, 1942
    ...have been vested in executive or administrative agencies and sustained as valid." See, also, Ashland Transfer Co. v. State Tax Commission, 247 Ky. 144, 56 S.W.2d 691, 87 A.L.R. 534; Spahn v. Stewart, 268 Ky. 97, 103 S.W.2d 651. Compare Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387. Always ......
  • Burton v. Mayer
    • United States
    • Court of Appeals of Kentucky
    • June 7, 1938
    ...Association, 262 Ky. 198, 90 S.W.2d 22; Talbott v. Laffoon, 257 Ky. 773, 79 S.W.2d 244; Ashland Transfer Company v. State Tax Commission, 247 Ky. 144, 56 S.W.2d 691, 87 L.R.A. 534; Commonwealth Life Insurance Company v. City of Paducah, 244 Ky. 756, 52 S.W.2d 704; Fiscal Court of Pendleton ......
  • Request a trial to view additional results

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