Department of Public Safety v. Freeman Ready-Mix Co.

• Decision Date: 02 May 1974
• Docket Number: READY-MIX
• Citation: 292 Ala. 380,295 So.2d 242
• Parties: DEPARTMENT OF PUBLIC SAFETY for the State of Alabama, etc., et al. v. FREEMANCO., a corp., etc., et al. DEPARTMENT OF PUBLIC SAFETY for the State of Alabama, etc., et al. v. SOUTHERN HAULERS, INC., a corp., et al. SC 626, SC 627.
• Court: Alabama Supreme Court

Page 242

295 So.2d 242

292 Ala. 380

DEPARTMENT OF PUBLIC SAFETY for the State of Alabama, etc., et al. v. FREEMAN READY-MIX CO., a corp., etc., et al.

DEPARTMENT OF PUBLIC SAFETY for the State of Alabama, etc., et al. v. SOUTHERN HAULERS, INC., a corp., et al.

SC 626, SC 627.

Supreme Court of Alabama.

May 2, 1974.

Rehearing Denied May 23, 1974.

William J. Baxley, Atty. Gen., Leon Ashford, Asst. Atty. Gen., James M. Tingle, Special Asst. Atty. Gen., George Beck, Deputy Atty. Gen., for appellants.

John W. Cooper and Charles H. Huey, Birmingham, for appellees.

BLOODWORTH, Justice.

These appeals stem from two separate bills of complaint filed by appellees against appellants, Department of Public Safety for the State of Alabama, E. C. Dothard as Director of the Department of Public Safety, and Ray Bass as Director of the Alabama Highway Department. The eight complainants in the first case are corporations in the business of manufacturing and delivering ready-mix concrete. The three complainants in the second case are in the business of transporting aggregate and commodities in bulk, in dump trucks and trailers. All the complainants sought an injunction against the enforcement of Title 36, § 89, Code of Alabama 1940, as last amended, (See Tit. 36, § 89, Recompiled Code 1958, 1971 Cumulative Pocket Part), a criminal statute which specifies maximum weights for vehicles traveling the highways of the State of Alabama (hereinafter referred to as the 'truck weight statute').

The complaints, as last amended, allege in substance:

(1) that the truck weight statute has been repealed by Title 51, § 697, Code of Alabama 1940, as last amended, (See Tit. 51, § 697, Recompiled Code 1958, 1971 Cumulative Pocket Part), which licenses vehicles of weights in excess of those prescribed by the truck weight statute;

(2) that the arrest and conviction of complainants under the truck weight statute after complainants have been licensed by the State to transport those weights violates due process;

(3) that the conflicts between the truck weight statute and Title 51, § 697 renders said statute so ambiguous as to violate the fair notice requirement of the due process clause;

(4) that the failure of respondents to enforce the truck weight statute has repealed the statute through nonuse;

(5) that enforcement after a period of 30 years of nonenforcement deprives complainants of fair notice and warning required by due process;

(6) that nonenforcement of the truck weight statute has entrapped complainants;

(7) that enforcement after complainants have acquired equipment and entered into contracts in reliance on the nonenforcement of the truck weight statute deprives complainants of property without dur process of law;

(8) that both the nonenforcement and the enforcement of the truck weight statute at the whim of the respondents amounts to legislation in violation of separation of powers;

(9) that since the last specification of weight laws in the truck weight statute, there have been changes in engineering, ecology, and in modes of doing business which render inapplicable the uses and purposes of the statute and, therefore, the statute is illegal and deprives the complainants of property without due process of law;

(10) that exemptions for certain types of trucks in the truck weight statute deprive complainants of equal protection of the laws.

Complainants further allege that enforcement of the statute will cause increased operating costs for complainants, increased use of the roads, increased use of fuel, and increased pollution such that complainants, the State, the Federal government, the industry served, and the public will be irreparably injured and without an adequate remedy at law, but that no one will be injured by the suspension and nonenforcement of said statute.

The two cases were consolidated for trial. The respondents (appellants here) filed a motion to dismiss on the grounds that the complaints failed to state causes of action, that the causes concern a criminal matter of which a court of equity has no jurisdiction, and that the causes are barred by the doctrine of sovereign immunity. The motion to dismiss was overruled. Issue was joined and evidence was taken ore tenus.

After hearing the consolidated cause, the court issued a final decree finding that there had been a sudden and strict enforcement of the truck weight laws, and that their 'sudden and strict enforcement . . . is inequitable, unfair, and in their implementation through enforcement are being enforced in an unconstitutional manner.' The court thereupon issued an injunction against the respondents, restraining and enjoining them from arresting or prosecuting any drivers of vehicles for violating Title 36, § 89, (except trucks which exceed certain weights specified in the court's decree). The injunction is to continue until the Legislature of the State of Alabama has an opportunity to meet and consider vehicle weight legislation, and in any event no longer than two years from the date of the court's decree.

Appellants-respondents present fifteen assignments of error on this appeal. In substance, these assignments charge that the court erred in overruling the motion to dismiss, that the court erred in that the final decree is contrary to law, and that the court erred because the final decree is not supported by the weight of the evidence.

Upon full consideration thereof, we are convinced that the trial judge's granting of the injunction prayed for by complainants is erroneous and contrary to the law of this State. We, therefore, reverse and remand this cause.

We now proceed to answer complainants' contentions ad seriatim.

1. In support of the trial court's final decree, complainants' first contention is that the truck weight statute has been repealed by Title 51, § 697. Section 697 provides that '(f)or each truck or truck tractor using the public highways of this state, annual license taxes and registration fees, based on the gross vehicle weight in pounds, are hereby imposed and shall be charged.' A graduated schedule of vehicle weights and the corresponding license taxes are set out in the statute, the heaviest category being 62,001 pounds or over. Section 697 goes on to state:

'* * *

'(c) Every person making application for license under this section to use a truck or truck tractor on the public highways of this state shall be required to make an affidavit declaring the gross vehicle weight of such truck or truck tractor and file the said affidavit with the judge of probate, or other county licensing officer, in the county in which the said application is made. Upon payment of the applicable motor vehicle license tax or registration fee, the license to use the said truck or truck tractor on the public highways of this state shall be limited to the gross vehicle weight so declared by the owner, which shall be deemed to constitute the allowable gross vehicle weight for which the said vehicle is licensed.

* * *'

Complainants argue that § 697 (quoted above in relevant part) and the truck weight statute ( § 89, Tit. 36) are in conflict and that § 697, as the later provision, impliedly repeals the truck weight statute.

We cannot agree. As this Court stated in City of Birmingham v. Southern Express Co., 164 Ala. 529, 538, 51 So. 159, 162 (1909):

'Repeal by implication is not favored. It is only when two laws are so repugnant to or in conflict with each other that it must be presumed that the Legislature intended that the latter should repeal the former. This is never the case if there be a reasonable field of operation, by a just construction, for both: for then they will both be given effect. * * *'

See also State ex rel. Grace v. Smiley, 219 Ala. 119, 121 So. 398, 399 (1929).

Section 697 does not specifically authorize weights in excess of the limits set forth in the truck weight statute. It merely sets forth a graduated scale of weights even the highest category of which (62,001 pounds and over) is well within the maximum permissible weight of the truck weight statute. We think a licensee has the responsibility to determine the applicable state truck weight statute and to apply and license its trucks only for those weight categories for which each truck is eligible under all applicable truck weight laws. Surely, a truck owner cannot, simply by his own act of declaring an illegal weight on his application for license, thereby effect a repeal of the state truck weight statute.

Section 697 merely taxes, by means of a licensing system, trucks according to their declared weights. It cannot fairly be read to authorize weights which are otherwise illegal. Section 697 and the truck weight statute are not in conflict, as there is a reasonable field of operation for both. Therefore, there has been no implied repeal of the truck weight statute by enactment of § 697.

2. Complainants next argue that even if the truck weight statute has not been repealed by § 697, that the arrest and conviction of complainants under the truck weight statute, after complainants have obtained a license from the State to transport those weights, violates due process.

Even if we were to assume arguendo that § 697 licenses weights in excess of the legal limits, we cannot agree that complainants' due process rights have been violated. It is clear from the statement of intent in § 10 of Act No. 223 (1967 Acts of Alabama, Vol. 1, at p. 295) that § 697 is in the nature of a tax on a certain activity for the purpose of raising revenue not a grant of a privilege. (See also same section quoted in annotation to Recompiled Code 1958, at Tit. 51, § 692, 1971 Cumulative Pocket Part.) Section 10 reads as follows:

'It is the intention of the Legislature by the enactment of this act to raise revenue and to appropriate funds to pay the principal of and interest on bonds that may be issued by the Alabama Highway Authority, a public corporation existing under the laws of this state, for the...