In re Kessler

• Citation: 26 Idaho 764,146 P. 113
• Parties: In the Matter of the Application of HARRY S. KESSLER for a Writ of Habeas Corpus
• Decision Date: 10 February 1915
• Court: United States State Supreme Court of Idaho

146 P. 113

26 Idaho 764

In the Matter of the Application of HARRY S. KESSLER for a Writ of Habeas Corpus

Supreme Court of Idaho

February 10, 1915

MOTOR VEHICLES-CONSTITUTIONAL LAW-REVENUE AND TAXATION-LICENSE OR REGISTRATION FEE.

1. Chapter 179, Sess. Laws 1913, p. 558, is a law intended among other things, to require those who operate motor vehicles upon the public highways to cause such vehicles to be registered and to pay therefor a license, or registration fee, which is in excess of the amount necessary to be raised for the purpose of policing such vehicles upon the public highways.

2. In matters of taxation the legislature possesses plenary power except as such power may be limited or restricted by the constitution. It is not necessary that the constitution contain a grant of power to the legislature to deal with the question of taxation.

3. The provisions of the constitution requiring all taxes to be uniform and to be levied and collected under general laws which shall prescribe such regulations as shall insure a just valuation of all property, refer to taxation according to the commonly accepted meaning of that term, and do not apply to license or registration fees.

4. The constitution of Idaho does not prohibit the state from raising revenue in the manner provided for in said chapter 179.

APPEAL from the District Court of the Third Judicial District for the County of Ada. Hon. Carl A. Davis, Judge.

Petition for writ of habeas corpus. Petition granted. Reversed.

Order of the district court reversed with instruction and remanded.

J. H Peterson, Attorney General, E. G. Davis, T. C. Coffin Assistants, Raymond L. Givens, Prosecuting Attorney, E. P. Barnes, Jay M. Parrish, for Appellant.

In the case of Achenbach v. Kincaid, 25 Idaho 768, 140 P. 529, this court has held that every intendment shall be in favor of the constitutionality of the act in question.

The right of the state to pass a law authorizing a license tax under police power for the purpose of revenue has been expressly recognized in the following cases: Nebraska Telephone Co. v. City of Lincoln, 82 Neb. 59, 117 N.W. 284; Salt Lake City v. Christenson Co., 34 Utah 38, 95 P. 523, 17 L. R. A., N. S., 898; City of Buffalo v. Lewis, 192 N.Y. 193, 84 N.E. 809; Alder v. Whitlock, 44 Ohio St. 539, 9 N.E. 672; Commonwealth v. Boyd, 188 Mass. 79, 108 Am. St. 464, 74 N.E. 255; City of Terre Haute v. Kersey, 159 Ind. 300, 95 Am. St. 296, 64 N.E. 469; Elliott on Roads and Streets, p. 1114.

The use of the roads is a right which by and of itself may be taxed and which does not violate any of the principles of our constitution either as to exempting the automobile from valuation taxes or on the ground that it operates under police power. (Kaiser Land and Fruit Co. v. Curry, 155 Cal. 638, 103 P. 341; People v. Grant, 157 Mich. 24, 133 Am. St. 329, 121 N.W. 300; Dudley v. Northampton Street Ry. Co., 202 Mass. 443, 89 N.E. 25, 23 L. R. A., N. S., 561; Ex parte Miller, 13 Cal.App. 564, 110 P. 139; Kellaher v. City of Portland, 57 Ore. 575, 110 P. 492, 112 P. 1076; Wiggins Ferry Co. v. East St. Louis, 102 Ill. 560.)

It is not necessary to determine whether the license fee is for revenue or for purposes of regulation. (Banta v. City of Chicago, 172 Ill. 204, 50 N.E. 233, 40 L. R. A. 611; Price v. People, 193 Ill. 114, 86 Am. St. 306, 61 N.E. 844, 55 L. R. A. 588; Bassett v. People, 193 Ill. 334, 62 N.E. 215, 56 L. R. A. 558; Raymond v. Hartford Fire Ins. Co., 196 Ill. 329, 63 N.E. 745; Northern P. Ry. Co. v. Gifford, 25 Idaho 196, 136 P. 1131; Kane v. State, 81 N.J.L. 594, Ann. Cas. 1912D, 237, 80 A. 453; Cleary v. Johnston, 79 N.J.L. 49, 74 A. 538; Dewitt v. State, 155 Wis. 249, 144 N.W. 253; State v. Sheppard, 79 Wash. 328, 140 P. 332.)

Harry S. Kessler, Respondent, pro se.

"The power to impose such a tax (license) extends only to the business as contradistinguished from the ownership or possession or right of ownership of the property." ( In re Gale, 14 Idaho 761, 95 P. 679.)

The primary and paramount, if not the only, object of the law, is to obtain revenue. (Rosenbloom v. State, 64 Neb. 343, 89 N.W. 1055, 57 L. R. A. 922.)

If the money is to be used particularly for some public improvement it indicates that the exaction is a tax. (Ellis v. Frazier, 38 Ore. 462, 63 P. 642, 53 L. R. A. 454; Harder's Fireproof Storage & Van Co. v. Chicago, 235 Ill. 58, 85 N.E. 245, 14 Ann. Cas. 434.)

A fee for a license must be such a fee only as will legitimately assist in the regulation; and it should not exceed the necessary or probable expense of issuing the license and of inspecting and regulating the business which it covers. (Cooley on Taxation, 2d ed., 597; State v. Moore, 113 N.C. 697, 18 S.E. 342, 22 L. R. A. 472; City of Jacksonville v. Ledwith, 26 Fla. 163, 23 Am. St. 558, 7 So. 885, 9 L. R. A. 69; City of Jackson v. Newman, 59 Miss. 385, 42 Am. Rep. 367; Sipe v. Murphy, 49 Ohio St. 536, 31 N.E. 884, 17 L. R. A. 184; Chaddock v. Day, 75 Mich. 527, 13 Am. St. 468, 42 N.W. 977, 4 L. R. A. 809; Waters-Pierce Oil Co. v. City of Hot Springs, 85 Ark. 509, 109 S.W. 293, 16 L. R. A., N. S., 1035.)

An examination of the authorities reveals that an annual fee of three dollars is the maximum that has ever been approved as a legitimate charge for police regulation for automobiles. ( Ayers v. Chicago, 239 Ill. 237, 87 N.E. 1073; Cleary v. Johnston, 79 N.J.L. 49, 74 A. 538; State v. Lawrence (Miss.), 61 So. 975; In re Hoffert (S. D.), 148 N.W. 20, 52 L. R. A., N. S., 949; Graves v. Janes, 18 Ohio C. C. (N. S.) 448.)

The registration fees are charged against each motor vehicle, and exempting them from any other taxation shows that the legislature intended to tax them as articles of personal property. (Vernor v. Secretary of State, 179 Mich. 157, 146 N.W. 338.)

This method of registration fees just as clearly violates the rule of uniformity as the requirement of valuation. As between the owners of motor vehicles the law is both unfair and unjust. ( High School v. Lancaster Co., 60 Neb. 147, 83 Am. St. 525, 82 N.W. 380, 49 L. R. A. 343; State v. Poynter, 59 Neb. 417, 81 N.W. 431; Attorney General v. Winnebago Lake & R. Plank Road Co., 11 Wis. 35; In re Opinion of the Justices, 195 Mass. 607, 84 N.E. 499; McCurdy v. Prugh, 59 Ohio St. 465, 55 N.E. 154; State v. Case, 39 Wash. 177, 81 P. 554, 1 L. R. A., N. S., 152; Hawkeye Ins. Co. v. French, 109 Iowa 585, 80 N.W. 660.)

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

This is an appeal from an order of the district court discharging from custody the respondent who had been arrested for and convicted of operating and driving a motorcycle upon the public highways of Ada county, Idaho, in violation of the provisions of chapter 179 of the Session Laws of 1913, in that he had not caused the said motorcycle to be registered nor paid the fee incident thereto.

Said chapter creates a State Highway Commission and provides, among other things, a comprehensive plan of state highway construction and improvement and of policing motor traffic upon the public highways. Sec. 12 thereof is as follows: "Except as hereinafter provided, no motor vehicle shall be operated or driven upon any state or other public highway or upon the public streets of any city or incorporated village in this state until the said motor vehicle shall have been registered with the Secretary of the State Highway Commission." Said chapter provides the manner in which registration shall be applied for and the manner in which a record thereof shall be kept; that the application for registration of a motor vehicle of 30 horse-power or less shall be accompanied by a fee of $ 15, and of a motor vehicle of over 30 horse-power and up to and including 40 horse-power, by a fee of $ 20, and of a motor vehicle of over 40 horse-power and up to and including 50 horse-power, by a fee of $ 25, and a motor vehicle of over 50 horse-power, by a fee of $ 40, and in case of a motorcycle, by a fee of $ 5. Said chapter also provides for the issuance to the applicant a certificate of registration and a number.

The fees above mentioned are to be paid annually and shall be in lieu of all taxes, general or local, and the chapter expressly provides that all motor vehicles for which this annual fee is to be paid and which have been so registered shall be exempt from taxation. It is also provided that the violation of any of the provisions of this chapter in question shall be a misdemeanor, punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding $ 300.00, or by both such fine and imprisonment. Under the terms of the chapter all such fines are to be turned over to the Secretary of the State Highway Commission who shall pay them over to the State Treasurer, together with all fees collected under the provisions of said chapter, and said moneys shall go into the state highway fund.

This chapter was before the court for consideration in the case of Achenbach v. Kincaid et al., 25 Idaho 768, 140 P. 529, wherein the constitutionality of the law was questioned and it was held to not violate the constitution in the particulars therein considered, but the court held the questions here presented were not properly before it in that case.

In this case the respondent contends that the registration fee on motor vehicles provided for in section 16 of said chapter 179 is an attempted taxation other than by valuation and violates sec. 2, art. 7 of the constitution of Idaho, which is as follows: "The legislature shall provide such revenue as may be needful, by levying a tax by valuation, so that every person or corporation shall pay a tax in proportion to the value of his, her, or its property, except as in this article hereinafter...