Cleart v. Johnston

• Citation: 74 A. 538,79 N.J.L. 49
• Parties: CLEART v. JOHNSTON.
• Decision Date: 18 November 1909
• Court: United States State Supreme Court (New Jersey)

74 A. 538

79 N.J.L. 49

CLEART

v. JOHNSTON.

Supreme Court of New Jersey.

Nov. 18, 1909.

(Syllabus by the Court.)

Certiorari to Court of Common Pleas, Mercer County.

Certiorari by Richard I. Johnston to review his conviction of driving an automobile without having first registered the same and paid the registration fee, as required by P L. 1908, p. 615, § 4, in which prosecution John J. Cleary was prosecutor. Couviction sustained.

This writ of certiorari brings up a judgment of the court of common pleas of Mercer county rendered on an appeal from a conviction of the plaintiff in certiorari, before a police justice of the city of Trenton upon a complaint that the plaintiff in certiorari had violated paragraph 16, subdivision 1, of an act of the Legislature of this state, entitled "An act defining motor vehicles and providing for the registration of the same and the licensing of the drivers thereof; fixing rules regulating the use and speed of motor vehicles; fixing the amount of license and registration fees; prescribing and regulating process and service thereof and proceedings for the violation of the provisions of this act and penalties for said violations," approved April 12, 1906 (P. L. p. 182), and the supplements and amendments thereto.

Argued June term, 1909, before REED, BERGEN, and VOORHEES, JJ.

Peter Backes and Xenophen P. Huddy, for plaintiff.

Nelson B. Gaskill, Asst Atty. Gen., for defendant,

REED, J. The complaint against Mr. Johnston was that he drove an automobile on the public highways of the city of Trenton in this state without first having registered the automobile according to law, and without his having paid the registration fee thereon and therefor, pursuant to the statute. The uncontradicted facts are that Mr. Johnston, on the day charged in the complaint, was a citizen of the state of New York, and the owner of an automobile duly registered in that state, which automobile he had on this day operated from New York City as far as Trenton, on his way to Philadelphia. He was arrested in Trenton. His automobile was not registered in New Jersey, nor had he a New Jersey license, nor, of course, had he paid the registration and license fees provided for by our statute. Mr. Johnston was in the service of the White Steamer Company, at the agency of the said company in New York City. At the time of the alleged offense, neither he nor his company were engaged as common carriers operating automobiles in and across the state of New Jersey to and from adjoining states. Mr. Johnston intended to bring about his own arrest for violating the provisions of the automobile statute. Upon these facts, judgment was entered in the common pleas on appeal for a penalty of $100.

Section 4 of the amended automobile act of 1908 (P. L. 1908, p. 613) requires that every resident and nonresident of this state, whose automobile shall be driven, shall, before using such automobile on the public highways, register the same; and that no motor vehicle shall be driven unless so registered. The unamended section 35 of the act of 1906 (P. L. 1906, p. 195) provides that any person who shall be convicted of the violation of section 4 shall be subject to a fine not exceeding $100. It is admitted that Mr. Johnston did violate the provision of section 4 and so became subject to the penalty imposed. Therefore, if the statute is constitutional, the imposition of the penalty was admittedly regular. The attack now made is upon the validity of the statute. The objections are leveled at the provisions of section 4, and the grounds of the attack are: First, because the section imposes a tax upon automobiles, not according to their true value, but according to the horse power of each automobile; second, that this is a double tax, the first tax being levied by the assessor of taxes; third, that automobiles are put in a special class for the purpose of taxation, from which class are excluded property similar in character; fourth, that the imposition is a state tax upon the business of interstate commerce, and so violative of the federal Constitution; fifth, that such imposition is also a violation of the fourteenth amendment of the federal Constitution; and, sixth, that the act requiring a nonresident to designate an agent upon whom process may be served in this state discriminates against citizens of other states. In the case of Unwen v. State, 73 N. J. Law, 529, 64 Atl. 163, affirmed State v. Unwin, 75 N. J. Law, 500, 68 Atl. 110, it was held that the provisions of the automobile act of 1905 (P. L. 1905, p. 484), which required every resident and nonresident owner of an automobile to procure a license to drive such automobile, to register the same, and to pay for such license, were constitutional. It was held these registration requirements were within the legitimate exertion of the police power for the purpose of securing the safety of the public in its use of highways against the danger of this new use by powerful, rapidly moving machines which require careful and skillful drivers. The same grounds unsuccessfully taken against that act are now advanced against the present statute.

The counsel for the plaintiff in certiorari insists that the present statute differs from that under which the Unwin Case was decided, because of the increase in the amounts imposed for registration fees by the latter act. Under the act of 1905, supra, there was imposed a registration fee of $1. It was the requirement of the payment of this sum for private owners of each automobile, and the payment of $10 by manufacturers and dealers for all machines owned and controlled by them, that was under consideration in the Unwin Case. Section 4 of the act of 1908, which act was in force at the time of the arrest of Mr. Johnston, fixes the fee for registration at $3 for each motor vehicle having a rating of less than 30 horse power, and at $5 for each motor vehicle having a rating of 30 horse power or more. The manufacturer's and dealer's fee is $25 for not more than five automobiles owned and controlled by such manufacturer or dealer at the same time. Beside the fee for registration, there is required a fee of $1 for a license to drive a car of less than 30 horse power, and a fee of $2 for a license to drive a car having a rating of 30 horse power or more. Section 8 of the act of 1908 provides that the money received in accordance with the provisions of the act, whether from fines, penalties, registration fees, license fees, or otherwise, shall be accounted for and forwarded to the commissioner of motor vehicles, and by him paid to the Treasurer of the State of New Jersey, to be appropriated annually to the commissioner of public roads, and be used as a fund for the repair of improved roads throughout the state, and by him apportioned around each year among the several counties of the state, according to the mileage of improved roads in each county, to be used for the repair of said roads.

Now the ground of differentiation, insisted upon by the counsel for the plaintiff in certiorari, between the former and the present act, is that, while the former act provides for a $1 license fee imposed by force of the police power residing in the state, the present fees are imposed as a tax for the purpose of revenue. Regarding this point, it is to be remarked that there is nothing in the record brought up which exhibits the legitimate expenses to which the state is put in its course of registering, regulating, and licensing automobiles. The evidence upon which the writ was allowed is not evidential upon this hearing. If it could be resorted to, the facts stated do not show that the charges are so unreasonably in excess of the cost of regulating and supervising automobiles as to compel us to say that the charges are not regulative. The state furnishes a central office, official assistance, clerical force, and legal advice by the Attorney General's office, for which no separate charges are made, but which indirectly are an expense to the state. It does not follow that the amounts paid for certain specific services by certain officers represent all the cost and expense to which the state is subjected. Therefore the fact that the receipts from fees for registration and for licenses largely exceed the sum specifically charged for the maintenance of the automobile department...