Gibbons & Reed Co. v. Dept. of Motor Vehicles

• Court: California Court of Appeals
• Writing for the Court: DEVINE; DRAPER, P. J., and SALSMAN
• Citation: 220 Cal.App.2d 277,33 Cal.Rptr. 688
• Parties: GIBBONS & REED COMPANY, a Utah corporation, Guy F. Atkinson Company, a Nevada corporation, John Delphia, Plaintiffs and Respondents, v. DEPARTMENT OF MOTOR VEHICLES, State of California, Robert McCarthy, Director, Department of Motor Vehicles, State of California, A. J. Veglia, Registrar of Motor Vehicles, Department of Motor Vehicles, State of California, and Alan Cranston, Controller, State of California, Defendants and Appellants. Civ. 20742.
• Decision Date: 17 September 1963

Page 688

33 Cal.Rptr. 688 220 Cal.App.2d 277 GIBBONS & REED COMPANY, a Utah corporation, Guy F. Atkinson Company, a Nevada corporation, John Delphia, Plaintiffs and Respondents,
v.
DEPARTMENT OF MOTOR VEHICLES, State of California, Robert McCarthy, Director, Department of Motor Vehicles, State of California, A. J. Veglia, Registrar of Motor Vehicles, Department of Motor Vehicles, State of California, and Alan Cranston, Controller, State of California, Defendants and Appellants. Civ. 20742. District Court of Appeal, First District, Division 3, California. Sept. 17, 1963.

Page 690

[220 Cal.App.2d 280] Stanley Mosk, Atty. Gen., Harry W. Low, John J. Klee, Jr., Deputy Attys. Gen., San Francisco, for appellants.

Johnson & Stanton, Gardiner Johnson, Marshall A. Staunton, San Francisco, for respondents.

DEVINE, Justice.

The Department of Motor Vehicles, certain public officers, and the State of California itself appeal from a judgment directing a writ of mandate to compel refund to respondents of registration fees, license fees, and penalties which respondents had paid, under protest and threat of seizure, upon certain vehicles, and to compel payment of interest on the moneys ordered refunded. The questions are: (1) Were the vehicles subject to the fees required of owners of vehicles driven upon a highway in the years 1955-1958? (2) If the answer to (1) is in the negative, is interest allowable on the claimed refunds?

A. THE SUBJECT OF EXEMPTION OF THE VEHICLES

1. Description of the vehicles and of their use

The vehicles involved are owned by three contractors: Gibbons & Reed Company, John Delphia, and Guy F. Atkinson Company. The two first named owned vehicles described in the manufacturers' brochure as Euclid rear dumps, and the third named contractor owned Euclid tractors and bottom dump trailers. The rear dumps are mammoth vehicles weighing 22 tons, unladen, which are meant for carrying rock; when loaded, they weigh about 90,000 pounds. They are loaded by shovels and are unloaded by a tilting device. Atkinson Company's equipment likewise is enormous, and consists of tractors attached by draw bars to huge dump vehicles which are unloaded from the bottom. These are meant chiefly for the carrying of earth other than rock. All of the vehicles have certain common features. The case as presented by the contractors, through testimony of the contractors themselves, testimony of the Euclid dealer for all of California, and certain exhibits (chiefly brochures) is this: (1) The vehicles are described in the advertising brochures as being designed for mines, quarries, and the construction of highways, and with regard to the latter they are referred to as 'off-highway' equipment. It was testified [220 Cal.App.2d 281] that this equipment is never used on the highway for the transportation of persons or property, with the exception of work in the immediate area of construction. (2) It was testified that the term used to describe the subject material in the industry is 'self-propelled earth moving equipment,' and that they are more specifically referred to as 'rear dumps' or 'bellies' or 'Eucs' or 'payloaders,' but that they are never referred to as trucks. (3) They do not have lights except as an extra item, and when these are ordered it is usually because of jobs working night shifts. (4) In order to move these vehicles on a highway, even unladen, a special permit from the Department of Public Works is required (Veh.Code, § 35780 et seq.), and some of the units are so large that they must be hauled on trailers in order to distribute the load properly. When the Department of Motor Vehicles sequestered some of the units for nonpayment of the fees and they were to

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be moved to a warehouse, the Department of Motor Vehicles itself had to get a permit from the Department of Public Works for the passage of the units on the highway. (5) There was testimony that the Division of Highways referred to the equipment as earth movers. (6) The units are not sold by the truck division of General Motors, the manufacturer of Euclids, but by its Euclid Division, and dump trucks are handled by a different dealer. Sellers of this equipment are not licensed as motor vehicle dealers. (7) In the contract of the State of California for the construction of a highway in Mariposa County, on which the Delphia equipment was used, the contractor was required to pay higher wages to the operators of these units, which were calssified as 'rubber-tired heavy-duty equipment,' than was required to be paid to truck drivers. The classification calling for higher wages for this type of equipment was general throughout the industry.

Against the above items of evidence offered by respondents, appellants offer the following: (1) The vehicles actually did carry materials which they unloaded by dumping either at the rear by tilting of the body, or at the bottom by opening of the belly; wherefore, reason appellants, they are dump trucks. (2) The vehicles look like any dump truck, although they are extremely large. (3) Against the testimony offered by respondents that the vehicles are never referred to as trucks, appellants introduced (a) leases of Gibbons & Reed of certain of these vehicles, in which they were called 'dump [220 Cal.App.2d 282] trucks,' and (b) in the claim made to the Department of Motor Vehicles for refund, Gibbons & Reed again referred to the vehicles as 'dump trucks.'

The use of the vehicles was this: The Atkinson vehicles, after they were brought into California on flat bed railroad cars, were driven, unladen and under special permit, a distance of about seven miles along the highway to the Coyote Dam. Thereafter, they were used exclusively in work at the dam site and were never operated on any highway. The Gibbons & Reed vehicles were used on highway construction projects at Dunsmuir and Floristan, and the Delphia equipment on a highway construction job near Mariposa. The vehicles did not carry material along the highway except withind the area of construction. The highways remained open to the public in a limited way, that is, with the use of flagmen, and both contractors were required by their contracts with the State to keep the highways reasonably open.

2. The statutes

Section 4000 of the Vehicle Code (during the time relevant to this case the section was 140 of the Vehicle Code, but it contained substantially the material which follows) provides: 'No person shall drive, move, or leave standing any motor vehicle, trailer, semi-trailer, pole or pipe dolly, or auxiliary dolly upon a highway unless it is registered and the appropriate fees have been paid under this code.' There was, however, an exemption for special highway and construction equipment by the terms of section 142(f), ¹ and special highway construction equipment was defined by section 39.5 as follows: "Special highway construction equipment' means a vehicle which is designed and used primarily for grading of highways, paving of highways, earth moving and other construction work on highways and which is not designed or used primarily for the transportation of persons or property and which is only incidentally operated or moved over the highway. It includes road construction and maintenance machinery such as portable air compressors, air drills, asphalt spreaders, bituminous mixers, bucket loaders, caterpillar tractors, ditchers, leveling graders, finishing machines, motor graders, paving mixers, road rollers, scarifiers, earth moving scrapers and carryalls, lighting plants, welders, pumps, power shovels and drag lines, self-propelled earth moving equipment and machinery and other similar types of construction equipment. This enumeration

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