Atkins v. State Highway Department

• Decision Date: 06 February 1918
• Docket Number: (No. 5942.)
• Parties: ATKINS v. STATE HIGHWAY DEPARTMENT.
• Court: Texas Court of Appeals

201 S.W. 226

ATKINS v. STATE HIGHWAY DEPARTMENT.

(No. 5942.)

Court of Civil Appeals of Texas. Austin.

February 6, 1918.

On Motion for Rehearing, February 27, 1918.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Suit by P. S. Atkins against the State Highway Department. From a judgment for defendant, plaintiff appeals. Affirmed.

R. B. Humphrey, of Austin, for appellant. B. F. Looney, Atty. Gen., and C. W. Taylor and C. M. Cureton, Asst. Attys. Gen., for appellee.

JOHNSON, Special Chief Justice.

This suit was instituted by appellant against appellees in the district court of Travis county, Tex., on the 7th day of July, 1917. Appellant alleged in his petition that he was the owner of an automobile, or motor vehicle, of Cadillac manufacture, rated at 32 horse power; that appellees were threatening and attempting to collect from him the sum of $5.60, as a so-called license or registration fee to cover the period of time ending December 31, 1917, and for furnishing him a plate, or plates, seal, etc., to be used by him under orders of appellees, as a means of identifying said automobile; that unless restrained by the court, appellees would compel him to pay said license or registration fee, and later a sum amounting to $11.20 on the 1st day of January each year thereafter, so long as he might own and operate said automobile, to his irreparable damage in the sums stated. He further alleged that appellees were threatening and attempting to collect said sum of money from him under the provisions of two certain acts of the regular session of the Thirty-Fifth Legislature, namely, chapters 190 and 207 of the published laws, as amended at the first called session of the Thirty-Fifth Legislature (chapter 31). He alleged the unconstitutionality of the acts mentioned, and of certain provisions thereof, as will hereinafter be noted. He prayed for a writ of temporary injunction, which was refused by the district court, and the cause is now properly before this court for revision.

For convenience we will hereinafter refer to said laws simply as chapter 190 and chapter 207. These two acts are so nearly related, each in part covering the same subject-matter, and in part the one beginning where the other left off, that they may, and should, be treated as one act, and especially so as they were both passed at the same session of the Legislature.

Chapter 190 establishes a state highway department, and creates a state highway commission. It comprehends a complete co-ordinated system of public highways throughout the state, as well as in the several counties of the state; assistance and advice by the department to counties is required, and co-operation between the department and county officials in the construction of roads is provided for; the state highway engineer is required to prepare, under the direction and approval of the commission, a comprehensive plan providing a system of state highways, and it is made the duty of the commission to advance the construction of such state highways; state aid to counties in the construction of roads is provided for; funds for public road construction appropriated by the United States government, shall be expended under the supervision of the state highway department, and in order to provide funds to effectuate the provisions of the act, every owner of one or more motorcycles or motor vehicles is required to file in the office of the state highway department an application for registration of each motorcycle or motor vehicle owned or controlled by him, and to pay the requisite fee therefor.

The registration fee prescribed for each motorcycle is $3; for each motor vehicle of the kind owned by appellant, as described in his petition, 35 cents per horse power, no motor vehicle to be registered for less than $7.50, and graduated fees are prescribed according to weight in pounds per wheel for commercial vehicles. Upon registration of the vehicle the owner is furnished with a certificate of registration, and without additional cost, a distinguishing seal and also two number plates for a motor vehicle and one for a motorcycle. A manufacturer of, or dealer in, such vehicles may obtain a general distinguishing number and seal upon payment of a fee of $15.

All funds coming into the hands of the highway commission, derived from registration fees, or from other sources, are to be expended by the highway commission for the furtherance of public road construction and the establishment of a system of state highways in the various ways prescribed in said act.

Chapter 207 contains additional provisions with reference to the application for registration of motor vehicles and motorcycles, and sets forth many rules and regulations governing the operation of such vehicles upon the public highways. These various provisions are too numerous to mention, and it will be sufficient to say that they comprise a complete code covering the entire subject-matter usually found in police measures relating to the operation of such vehicles on the public highways.

The main question involved in this case is set out in appellant's third assignment of error, which is as follows:

"The trial court erred in holding that the tribute sought to be collected from appellant by appellees for the state is a registration fee and not a tax."

We will consider in connection with this assignment, appellant's fourth assignment of error, which is as follows:

"The trial court erred in holding that the registration fee, if it is a registration fee, is not excessive and unreasonable in amount."

Appellant urges that the acts here involved levy the tribute solely and absolutely upon the ownership of the vehicle, and for the declared purpose of raising revenue, and therefore it is a tax, and not a registration or license fee for the privilege of the operation of motor vehicles upon the public highways. It is true that under section 16, chapter 190, every owner of one or more motorcycles or motor vehicles is required to file application for registration for each motorcycle or motor vehicle owned or controlled by him, and that each application shall be accompanied by the requisite fee, and it is also provided in that section that such is required "in order to effectuate the provisions of this act." Section 19 is practically to the same effect in so far as making application by the owner is concerned, and if this were all to be considered in connection with the matter, there would be reasonable grounds for appellant's contention that the tribute is laid on the ownership of the vehicle. But we must look to the whole law, to all of its provisions, to ascertain its meaning and intent.

Summarizing from the various provisions of the acts, we find it more than once declared that motor vehicles and motorcycles shall not be operated or driven on the "public highways" without having displayed thereon the number plates bearing the registration number assigned to such vehicle by the highway department; that it shall be unlawful to operate or drive such vehicle upon the "public highways" without having displayed thereon the distinguishing seal; that manufacturers of, or dealers in, motor vehicles, wishing to show or demonstrate such vehicles on the "public highways," may apply for and secure a general distinguishing number and seal; that the registration fee required to be paid becomes delinquent upon the operation of the vehicle upon the "public highways" without the registration fee having been paid; and that the highway department shall forthwith revoke the license to operate a motor vehicle on the "public highways," in case of arrests and convictions for certain offenses. The law may not be skillfully drawn, but, considering all of its provisions, it seems fairly clear that the fees imposed are for the license, or privilege, of operating motor vehicles and motorcycles upon the public highways of the state. It may be noted here that D. E. Colp, secretary of the state highway commission, a witness for appellees, testified as follows:

"It is my understanding that the highway commission cannot tax an automobile unless it goes on the road or street. You might own a car and leave it in the garage ten years and they cannot fine you, because they have to catch you on the road."

That is our understanding of the law. No penalty is denounced against the owner for failure to make application for registration of his vehicle, or for failure to pay the registration fee. He is amenable to the law only when he operates or drives his motor vehicle or motorcycle on the public highways of the state without the number plates and seal which evidence his compliance with the law in having registered his vehicle, paid the requisite fee and secured a license authorizing him to operate his motor vehicle or motorcycle on the public highways.

As previously stated, it is true that in section 16 it is provided that, "in order to effectuate the provisions of the act," owners are required to register their motor vehicles and motorcycles and pay the prescribed fees, and it may be said that the main purpose of the act is the construction of roads. There is, however, the other purpose, treating the two acts as one, that of regulating the use and operation of motor vehicles and motorcycles on the public highways of the state.

It may be conceded that the funds derived from the payment of registration fees are to be expended in the construction of roads. The law so provides, but that does not necessarily make it a revenue measure in the sense and with the effect contended for by appellant. There is no inhibition in the Constitution against the Legislature making such provision, and therefore it had the power to provide for such use of the funds, leaving the expense of policing, regulating, and administering the law in regard to the use and operation of the vehicles upon the highways, to be paid out of other funds by the state, or by the counties, as in other...