Fisher Bros. Co. v. Brown

• Decision Date: 25 November 1924
• Docket Number: 18693
• Citation: 111 Ohio St. 602,146 N.E. 100
• Parties: The Fisher Bros. Co. v. Brown, Secy. Of State.
• Court: Ohio Supreme Court

146 N.E. 100

111 Ohio St. 602

The Fisher Bros. Co. v. Brown, Secy. Of State.

No. 18693

Supreme Court of Ohio

November 25, 1924

Constitutional law - Legislative power to classify and adopt standard as basis - Excise tax upon motor vehicles - Classification into pleasure and commercial cars and according to horsepower - Adoption of formula to determine horsepower - Taxation upon horsepower, weight of vehicle and load, valid - Sections 6290 et seq. and 6309 et seq., General Code.

1. The Legislature, having the power of classification, baa also the power to select the standard on which to base the classification. The Legislature, in laying an excise tax upon the privilege of operating motor vehicles upon the public highways, may classify motor vehicles Into pleasure cars and commercial vehicles.

2. The Legislature may constitutionally classify commercial motor vehicles according to horse power.

3. The use of the horsepower formula of the Society of Automobile Engineers, adopted by the Legislature for the purpose of computing horsepower of motor vehicles, does not in operation result in inequalities so great as to amount to discrimination, and is therefore not unconstitutional.

4. Section 6292, General Code, as amended (110 O. L. 222) providing for a tax of $12 upon each commercial motor car having more than 25 and not more than 30 horsepower, and, in addition thereto, 30 cents for each 100 pounds gross weight of vehicle and load, or fractional part thereof, and providing for a tax of $20 upon each commercial car having more than 30 horsepower, and, In addition thereto, 50 cents for each 100 pounds gross vehicle and load, or fractional part thereof, is a valid and constitutional enactment, not repugnant to the Fourteenth Amendment to the United States Constitution, nor to Article I, Section 1, and Article I, Section 19, of the Ohio Constitution.

5. Section 6292, General Code (110 O. L. 222), and Sections 6290, 6291, 6292, 6293, 6294, 6295, 6309, 6309-1, 6309-2 (105 O. L. pt. 2, at pages 1075 and 1165), are not repugnant to Article XII, Section 5, Article XII, Section 2, Article II, Section 1, Article II, Section 22, Article XII, Section 4, Article XII, Section 6, Article XVIII, Sections 2, 3 and 13, nor to Article X, Section 7, of the Ohio Constitution.

The Fisher Bros. Company, plaintiff in error, instituted this action in the court of common pleas of Franklin county, Ohio to restrain Thad H. Brown, as secretary of state of Ohio from attempting to collect license fees or taxes on motor truck vehicles from the plaintiff in error, or other parties similarly situated, or otherwise performing any act or function under and in pursuance of GeneraL Code, Section 6292, of the acts of the Legislature of Ohio found in 110 O L., 211, 222, and in 108 O. L., 1078, 1079, and in pursuance of Sections 6290, 6291, 6292, 6293, 6294, 6295, 6309, 6309-1 and 6309-2, as contained in the act, 108 O. L., pt. 2, pp. 1078 to 1083, upon the ground that the said statutes, and the entire act, 108 O. L., 1078, and Section 6309 and Section 6309-1, as contained in the act, 108 O. L., 1165, and the entire act, 108 O. L., 1165, were unconstitutional and void.

The case was heard in the court of common pleas of Franklin county upon the amended petition, the answer and other pleadings, and the evidence. The court found for the plaintiff, the Fisher Bros. Company, and found that General Code, Section 6292, as amended by the act, reported in 110 O. L., 211, 222, in so far as it attempted to change the rates of tax on motor vehicles from the rates prescribed in Section 6292, prior to amendment, was unconstitutional and void.

The case was appealed by the secretary of state to the Court of Appeals of Franklin county, Ohio, where it was beard upon the pleadings and transcript of the record made in the court of common pleas. The Court of Appeals dissolved the temporary injunction and dismissed the petition. At the request of Fisher Bros. Company, the Court of Appeals made findings of facts separate from its conclusion of law, which findings are as follows:

"1. That the plaintiff, the Fisher Bros. Company, is a taxpayer in Cleveland, Cuyahoga county, Ohio, and brings this action for itself and all others similarly situated; that it owns and operates 211 retail grocery stores, and in connection therewith owns and operates with its business 24 Pierce-Arrow motor trucks for the delivery of food supplies, upon which trucks said company is obliged, under Section 6292, General Code, to pay a license tag fee of $186.40 per truck; that the undisputed evidence shows that an average of 2,000 White trucks pay an average annual tax of $66 per truck, and that an average of 2,000 trucks of other make or manufacture pay an average annual tax of $167 per truck; that certain of said trucks of slightly less than 30 horse power, by the S. A. E. formula, are of approximately equal weight, carrying capacity, and speed, and do substantially the same damage to the highways as certain other of said trucks of slightly more than 30 horse power, by the same formula.

"2. That the Schedule of Fees for Motor Vehicle registration' for the years 1923 and 1924, compiled and published by Thad H. Brown, secretary of state, for the department of state, state of Ohio, do not show a classification sufficiently unreasonable as to be in violation of Article I, Sections 1, 2, and 9, and Article II, Sections 1, 16, 22, and 26, and Article XII, Sections 2, 4, and 5, of the Constitution of the state of Ohio, and in violation of Article XIV, Section 1, of the Constitution of the United States.

"3. That the calculation of the horse power, and therefrom the license tag regulation taxes, assessed by the secretary of state, as set forth in item 2 of this finding of fact, is based upon the S. A. E. formula, as found in Section 6293 of tho General Code of Ohio, and that there arises therefrom a discrimination and lack of uniformity in the assessment of such taxes, as stated in item 1 of this finding, wherein Section 6292 fails to operate equally upon all persons in the same category.

"4. That weight, carrying capacity, and speed are the three elements which cause the damage of motor vehicles to roads and highways.

"5. (a) That the revenues collected from Section 6292, General Code, for the year ending June 30, 1922, were $7,330,080.78; for the year ending June 30, 1923, $9,981,434.09; that the increase of 1924 over 1923 is estimated at about 20 per cent.;

"(b) That the Legislature's appropriations for maintenance and repairs for the year ending June 30, 1924, are $4,271,290; that its appropriation for bald purpose for the year ending June 30, 1925 is $4,771,290.

"(c) That the appropriations for all expenses of the secretary of state in the automobile registration department for the year ending June 30, 1923, are $206,280; in 1924, $236,760; in 1925, $234,610.

"(d) That the interest on this maintenance and repair fund is credited to the general revenue fund.

"6. That the manufacturer's rated carrying capacity is used by the secretary of state in determining the amount of the registration tax on trucks.

"7. That the total expense required for purposes of registration of automobiles, and all other expenses of the secretary of state in connection therewith, does not exceed 25 cents for each motor vehicle, provided for in Section 6292, General Code."

The Court of Appeals held the statute in question valid, upon the ground that "Section 6292 of the General Code is not clearly unconstitutional, by reason of the ruling of the Supreme Court of Ohio in sustaining the constitutionality of the S. A. E. formula, in the Saviers case, 101 Ohio St. 132, 128 N. E., 269, and denied the injunction.

The case comes into this court upon petition in error filed as a matter of right, a constitutional question being involved.

Mr. Wm. L. Day; Mr. Smith W. Bennett, and Messrs. Price, Shepherd & Graves, for plaintiff in error.

Mr. C. C. Crabbe, attorney general; Mr. H. D. Mills, and Mr. B. H. Griswold, for defendant in error.

ALLEN J.

Plaintiff in error claims that Section 6292 of the act providing for the levy of a tax on the operation of motor vehicles on the public high. ways, as contained in the act, 110 O. L., 211, 222; and Sections 6290, 6291, 6292, 6293, 6294, 6295, 6309, 6309-1 and 6309-2, as contained in the act, 108 O. L., 1078, 1079, and the said entire act, 108 O. L., 1078, and Section 6309 and Section 6309-1 as contained in the act, 108 O. L., 1165, and the entire act, 108 O. L., 1165, are unconstitutional and void. These sections, which must be considered for the purpose of this discussion, are in their pertinent portions as follows:

Section 6290 defines the terms motor vehicle, tractor and traction engine, passenger car, commercial car, owner, manufacturer, and dealer, state and public roads and highways. It defines "passenger car" as meaning any motor vehicle designed and used for carrying not more than seven persons. It defines "commercial car" as meaning any motor vehicle having motive power, designed and used for carrying merchandise or freight, or for carrying more than seven persons.

Section 6291 (110 O. L., 244):

An annual license tax is hereby levied upon the operation of motor vehicles on the public roads or highways of this state, for the purpose of enforcing and paying the expense of administering the law relative to the registration and operation of such vehicles and of maintaining and repairing, public roads and highways and streets. Such tax shall be at the rates specified in this chapter and shall be paid to and collected by the secretary of state or deputy registrar at the time of making application for registration as herein provided."

Section 6292 (108 O. L., pt. 2, 1079):...