In re Opinion of the Justices

Decision Date10 April 1925
Citation129 A. 117
CourtNew Hampshire Supreme Court

Request by the Senate for opinion of Justices of Supreme Court regarding validity of proposed bill for compulsory insurance against liability for damages incurred in operation of automobiles. Request answered.

John J. Sheehan, of Manchester, for the bill.

William N. Rogers, of Concord, opposed.

On March 24, 1925, the Senate adopted the following resolution:

Resolved, that the Senate request the opinion of the Supreme Court as to the constitutionality of compulsory insurance against liability for damages incurred in the operation of automobiles on the public highways, as provided for in House Bill No. 4, now pending in the Senate, An act relating to the registration of motor vehicles; for the protection of the public safety by providing as a prerequisite to the registration of motor vehicles, for the establishment (including the continuance during the period of registration) of financial responsibility by owners thereof for injury, including death resulting therefrom, to persons or damage to property caused by, or as the result of, the negligent use, maintenance or operation of such motor vehicles; conferring powers and imposing duties upon the commissioner of motor vehicles and his agents in connection therewith, and for the enforcement thereof; imposing certain duties upon owners of motor vehicles and upon insurance companies, associations and exchanges, issuing policies and contracts to motor vehicle owners and providing penalties.

To the Honorable Senate:

The undersigned, justices of the Supreme Court, having received your communication requiring their opinions upon the validity of the provisions of House Bill No. 4, now pending before your honorable body, and relating to a requirement that indemnity insurance must be obtained in certain instances as a prerequisite to obtaining a permit for the operation of a motor vehicle upon the public highways, make answer as follows:

The inquiry relates to the legislative power to provide that an applicant for registration for a motor vehicle shall establish the collectability of judgments which may be rendered against him for damages caused by the operation of the vehicle in question, and as to the validity of certain limitations upon the method by which such fact may be established.

The proposed act is designed to regulate the use of public highways. It relates to a matter over which the Legislature has full power, subject only to the limitations of reasonableness and equality. State v. Aidrich, 70 N. H. 391, 47 A. 602, 85 Am. St Rep. 631. Power to act upon the subject can also be predicated upon the right to provide for the public safety by the reasonable regulation of undertakings that are inherently dangerous.

While the most common form of such regulation is by the prohibition of certain acts, or prescribing modes of action, the power is not limited to such legislation. In addition to measures calculated to protect from injury, there may also be provisions tending to facilitate obtaining recompense for injuries that are inflicted. Legislation of the latter class has been upheld in this state. The Employers' Liability Law takes from employers engaged in certain lines of hazardous business the benefit of the defense of assumption of risk by the employee. Laws 1911, c. 163, § 2. This provision does not exceed the legislative power. Wheeler v. Contoocook Mills, 77 N. H. 551, 554, 94 A. 265, and cases cited. A provision that a lightning rod agent must maintain a residence within the state is valid as a means to "render him amenable to the process of, and bring him within the jurisdiction of the courts of the state." State v. Stevens, 78 N. H. 268, 276, 99 A. 723, 728 (L. R. A. 1917 C, 528).

So also the provisions of Laws 1911, c. 133, § 20, requiring the operator of a motor vehicle who knows he has caused injury to stop and give information, plainly relates to facilitating a recovery for injuries done. In upholding the validity of this provision it was said:

"That the operation of an automobile upon the public highways is not a right but only a privilege which the state may grant or withhold at pleasure (Comm. v. Kingsbury, 199 Mass. 542); and that what the state may withhold, it may grant upon condition." State v. Sterrin, 78 N. H. 220, 222, 98 A. 482, 483.

As the Legislature may provide that the defendant must remain within the state so as to be answerable to process or must furnish evidence of his identity after a wrong has been done, it may also provide means by which the plaintiff's recovery shall be a thing of substance rather than mere form. There is no difference in principle between taking away means of evading a judgment and providing against deficiencies which would prevent the collection of an execution.

Provisions requiring those causing the operation of motor vehicles, or certain classes of them, to furnish security for the benefit of any person who may be injured through faulty operation have been enacted in many states; and the decisions are uniform in upholding the power to prescribe such regulations. Commonwealth v. Slocum, 230 Mass. 180, 119 N. E. 687; People v. Kastings, 307 Ill. 92, 138 N. E. 269; Ex parte Cardinal, 170 Cal. 519, 150 P. 348, L R. A. 1915 F, 850; Jitney Bus Association v. City of Wilkes-Barre, 256 Pa. 462, 100 A. 954; West v. City of Asbury Park, 89 N. J. Law, 402, 99 A. 190; State v. Seattle, etc., Co., 90 Wash. 416, 156 P. 837; City of Memphis v. State, 133 Tenn. 83, 179 S. W. 631, L. R. A. 1916 B, 1151, Ann. Cas. 1917 C, 1056; City of New Orleans v. Le Blanc, 139 La. 113, 71 So. 248; Willis v. City of Fort Smith, 121 Ark. 606, 182 S. W. 275; Hazleton v. City of Atlanta, 144 Ga. 775, 87 S. E. 1043; Ex parte Dickey, 76 W. Va. 576, 85 S. E. 781, L. R. A. 1915 F, 840; Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596.

A general requirement that a motor vehicle may be operated upon the public highways only when adequate provision has been made for compensation to persons injured because of fault in such operation is a valid law.

The other branch of the question relates to the requirements of indemnity insurance under some circumstances and not under others. The provisions of the bill are, in substance, that, if the applicant shows that he has sufficient property, he may be granted a permit, or he may have a permit if he obtains indemnity insurance. No other form for assuring accountability is provided for; and the question arises whether the failure to allow the applicant to file a bond with proper sureties constitutes an unwarranted distinction. A closely related question has arisen under statutes or ordinances requiring a bond executed by a surety company and excluding one signed by individual sureties. It has been decided in some states that this is a reasonable discrimination. Ex parte Cardinal, 170 Cal. 519, 150 P. 348, L R. A. 1915 F, 850; State v. Seattle, etc., Co., 90 Wash. 416, 156 P. 837. In another state it was held to be so unreasonable as to make an ordinance invalid. Jitney Bus Association v. City of Wilkes-Barre, 256 Pa. 462, 100 A. 954. In one jurisdiction the decision by a divided court first disallowed the discrimination but upheld it upon a rehearing. City of New Orleans v. Le Blanc, 139 La. 113, 71 So. 248. In still another state an ordinance was held invalid because the restrictions as to a bond with individual sureties were found to be unequal and unreasonable. People v. Kastings, 307 Ill. 92, 138 N. E. 269.

It. is manifest that there are practical reasons why an obligation secured by the liability of a corporation whose continued solvency and accountability are provided for by state regulations and supervision is preferable to one secured only by individuals as sureties. It is our opinion that a general provision requiring the former and excluding the latter is a proper exercise of legislative discretion.

But, although a surety company bond or policy of indemnity insurance may be required of all, to the exclusion of personal security, the present difficulty is not disposed of. The question here relates to a provision that individual responsibility shall be accepted in certain cases and not in others. It involves more than the mere power to prescribe a corporate surety, to the exclusion of individual responsibility. The distinction in the bill is that between individual accountability in one instance and corporate responsibility in another. The provisions cannot be sustained upon the ground that a requirement of corporate responsibility is reasonable, for the act recognizes and permits personal accountability in some cases. This being made acceptable in some instances, no reason is apparent why it should not be so in all cases. If the impecunious applicant can secure the pledge of the accountability of his wealthy friend, he offers...

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