Atlantic & Danville Ry. Co. v. Hooker, 4042

• Decision Date: 20 January 1953
• Docket Number: No. 4042,4042
• Citation: 74 S.E.2d 270,194 Va. 496
• Parties: ATLANTIC AND DANVILLE RAILWAY COMPANY, ET AL. v. H. LESTER HOOKER, W. MARSHALL KING, AND RALPH T. CATTERALL, COMMISSIONERS OF THE STATE CORPORATION COMMISSION, ET AL. Record
• Court: Virginia Supreme Court

Page 270

74 S.E.2d 270

194 Va. 496

ATLANTIC AND DANVILLE RAILWAY COMPANY, ET AL. v. H. LESTER HOOKER, W. MARSHALL KING, AND RALPH T. CATTERALL, COMMISSIONERS OF THE STATE CORPORATION COMMISSION, ET AL.

Record No. 4042

Supreme Court of Appeals of Virginia

January 20, 1953.

Hunton, Williams, Anderson, Gay & Moore, H. Merrill Pasco, J. O. Atkinson, Thomas B. Gay, R. E. Northup, Stuart T. Saunders, H. L. Walker, for the petitioners.

J. Lindsay Almond, Jr., Attorney General, and Henry T. Wickham, Assistant Attorney General, for the respondents.

William M. Blackwell and Oscar L. Shewmake for Virginia Highway Users Association, Incorporated, and certain other intervenor-respondents.

David J. Mays and J. Randolph Tucker, Jr., for North Carolina Motor Carriers Association, Incorporated, and certain other intervenor-respondents.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

We are asked to determine: (1) whether or not a declaration of the Honorable John S. Battle, Governor of Virginia, of June 25, 1952, waiving the payment of the gross receipts road tax imposed by § 58-638 Code of Virginia, 1950, on out-of-state interstate carriers of property on revenue derived from their interstate operations over the public highways of Virginia, so long as their home states 'do not require Virginia interstate motor carriers of property to pay a gross receipts tax, ton-mileage tax or other similar tax on revenue derived from interstate operations,' meets the requirements of §§ 46-21 and 46-22, Code of Virginia, 1950, hereinafter referred to as the Reciprocity Act; and, (2) whether if it does meet the requirements of the said Act, the Act itself contravenes § 163 of the Constitution of Virginia and the Fourteenth Amendment to the Constitution of the United States.

Section 58-638 Code of Virginia, 1950 (Acts 1948, page 1120) requires, except as therein otherwise provided, every foreign and domestic motor vehicle carrier of passengers and property for compensation to pay a two per cent road tax based on the gross receipts from its intrastate and interstate operations over the public highways of this State.

Sections 58-639 and 58-643 make certain exemptions not pertinent here. Section 58-640 requires every person subject to the tax to make reports to the State Corporation Commission, hereinafter referred to as the Commission, with respect to his operations of such motor vehicles, from time to time, as the Commission may require.

Section 46-21 creates a Reciprocity Board, hereinafter referred to as the Board, consisting of the Commissioner of Motor Vehicles, the State Highway Commissioner, and one member of the State Corporation Commission. Section 46-22 grants to the Governor and the Board the following powers:

' § 46-22. Governor may make reciprocal agreements. -- The Governor may, with the advice of the Board, enter into reciprocal agreements on behalf of the Commonwealth with the appropriate authorities of any state in the United States, or of the District of Columbia, with respect to all taxes imposed by this State and by any such other state on motor vehicles, or on the operation of motor vehicles, or upon any transaction incident to the operation of motor vehicles.

'All agreements entered into by the Governor with respect to any subject of reciprocity as to which provision is expressly made by statute shall conform to the provisions of such statute. As to any other subject of reciprocity appropriate to the powers vested in the Governor by this section, the Governor may, with the advice of the Board, agree to such terms and conditions as in his judgment are best calculated to promote the interests of the Commonwealth. (1942, p. 591; Michie Code 1942, § 2154(83c).)'

The prayer of the petitioners, fourteen companies authorized to conduct a rail transportation or express business in Virginia, is for a peremptory writ of mandamus directing and requiring the Commissioners of the State Corporation Commission to cause all foreign motor carriers to make the reports required by § 58-640 of the Code of Virginia, 1950, in the same manner and at the same time that such reports are required to be made by domestic motor carriers, and to assess and collect from all foreign motor carriers the taxes imposed by § 58-638.

H. Lester Hooker, W. Marshall King and Ralph T. Catterall, as members of the State Corporation Commission, in their answer, deny that they have failed to perform any ministerial duty incumbent upon them in connection with the assessment and collection of the said tax. They rely upon the unilateral declaration issued by Governor Battle on June 25, 1952.

Twenty-six interstate motor freight carriers, the Virginia Highway Users Association, Inc., and the North Carolina Motor Carriers Association, Inc., were allowed to intervene by leave of court, and several of theintervenor-respondents answered the petition for the writ of mandamus denying its sufficiency in law.

Petitioners contend that the declaration of Governor Battle of June 25, 1952, is invalid because it does not comply with the requirements of the provisions of Code, § 46-22, in that it is not, in fact, a 'reciprocal agreement' as that term is used in the statute; but is merely a unilateral declaration of policy. It is argued that the language of the Act requires that any 'reciprocal agreement' entered into must express the mutual assent or understanding of Virginia with the 'appropriate authorities of other states,' and that since some states have no officers authorized to make 'reciprocal agreements,' no mutual understanding can be had with those states. Petitioners argue also that the declaration is not a 'reciprocal agreement' because there is no exchange of privileges and benefits substantially the same between the states, especially where Virginia waives the tax on motor carriers of a state which has enacted no statute which would impose a comparable tax on Virginia motor carriers operating in that state.

On the other hand, respondents contend that the object of Code, § 46-22 is to secure for residents of Virginia the free movement of commerce and trade over the roads of other states in return for a similar privilege granted to non-residents of such states over Virginia roads, by inducing other states not to require the payment of taxes by residents of Virginia, either by a waiver of taxes imposed, or a forbearance of their imposition by statute, and that since the privileges to be granted are identical, true reciprocity in kind can be attained.

With the advent of motor vehicles and their rapidly increased use as carriers of persons and property, the legislature early recognized the necessity for their regulation and control. In 1910, the first revenue license statute for such vehicles was enacted, providing for their registration and the payment of a tax. Acts of 1910, chapter 326.

This Act contained several provisions relating to the imposition of licenses and taxes upon motor vehicles operated in interstate travel. It granted to non-resident owners of motor vehicles the free use of the highways of this State for two weeks in each calendar year, provided such non-residents had complied with the registration and licensing laws of the state of their residence, It authorized the Governor to enter into reciprocal agreements with other states under which the registration of motor vehicles owned by residents of this State would be recognized by such other states. It further empowered the Governor to grant to residents of other states the privilege of using the roads of this State in return for similar privileges granted residents of this State by other states. Code of Virginia, 1919, § 2137.

The Act was amended by Acts 1920, Chapter 205, page 283, Code of Virginia, (Michie) 1930, § 2137, to read as follows:

'Exemption of non-resident owners. -- The provisions of the foregoing sections relative to registration and display of registration numbers shall not apply to a motor vehicle owned by a non-resident of this State, other than a foreign corporation doing business in this State, provided that the owner thereof shall have complied with the provisions of the laws of the foreign country, State, territory or federal district of his residence relative to registration of motor vehicles and the display of registration numbers thereon, and shall conspicuously display his registration numbers as required thereby. The provisions of this section, however, shall be operative as to a motor vehicle owned by a non-resident of this State only to the extent that under the laws of the foreign country, State, territory or federal district of his residence like exemptions and privileges are granted to motor vehicles duly registered under the laws of and owned by residents of this State. (Id., § 10; 1920, p. 283.)'

Section 2137, Code of 1930, was repealed in 1932, Acts of 1932, page 884, and in lieu thereof new provisions for reciprocity were set out in detail in the Motor Vehicle Code enacted that year. Acts 1932, page 613, 626 as amended by Acts 1934, page 387. These provisions appear in Code of Virginia, 1942 (Michie), as § 2154(70), and in the Code of 1950 as §§ 46-110, 46-111, 46-115, 46-117, 46-118, 46-120 and 46-122.

The gross receipts tax, a specific charge for the use of roads by operators of motor vehicles, was first imposed in Virginia in 1930 on common carriers of persons and property for compensation, at the rate of one and one-half per cent of the total gross transportation receipts of such carriers arising out of operations in Virginia. Acts of 1930, chapter 419. In 1932, the rate was increased to two per cent. Acts of 1932, chapter 360; and with minor amendments, the first Act remained in force until 1942. In the latter year the Act was amended and reenacted to extend to contract carriers of property for hire, effective as of January 1, 1943. Acts of 1942, chapter 377, Section 36, Code of Virginia, 1942, (Michie) § 2154(83).

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