Lien v. Rowe

• Decision Date: 13 November 1958
• Docket Number: No. 9692,9692
• Citation: 92 N.W.2d 922,77 S.D. 422
• Parties: Peter C. LIEN, Charles H. Lien and Bruce H. Lien, copartners doing business under the firm name and style of Pete Lien & Sons, Plaintiffs and Appellants, v. Warren G. ROWE, County Treasurer of Pennington County, South Dakota, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 922

92 N.W.2d 922

77 S.D. 422

Peter C. LIEN, Charles H. Lien and Bruce H. Lien, copartners doing business under the firm name and style of Pete Lien & Sons, Plaintiffs and Appellants, v. Warren G. ROWE, County Treasurer of Pennington County, South Dakota, Defendant and Respondent.

No. 9692.

Supreme Court of South Dakota.

Nov. 13, 1958.

Stephens, Riter & Mayer, Pierre, for plaintiffs and appellants.

James H. Wilson, State's Atty., Rapid City, for defendant and respondent.

ROBERTS, Judge.

This action was brought by appellants against the County Treasurer of Pennington County, South Dakota, for the purpose of obtaining judgment for the recovery of motor vehicle compensation fees paid under protest. Motion to dismiss the complaint was granted by the trial court. Plaintiffs appeal.

The sole question presented is whether or not the complaint states a cause of action. The complaint alleges that plaintiffs as copartners are engaged under the name of Pete Lien & Sons in the business of operating limerock mines; that certain motor vehicles were leased by Lien, Inc., a South Dakota corporation, to plaintiff copartners who own equally the capital stock of the corporation and were exclusively used by them in the transportation of products originating in or produced from their mining operations; that officers of the law threatened to arrest and prosecute plaintiffs for failure to pay compensation for the unusual use of public highways and to display compensation plates; and that plaintiffs made payment not voluntarily, but under protest and compulsion to prevent the stopping of the operation of their motor vehicles upon public highways.

SDC Supp. 44.0422 (Chap. 238, Laws 1953) prior to its amendment by Chap. 230, Laws 1957, defined the term 'motor carrier' in so far as material to the present appeal as follows: 'The term 'motor carrier', when used in the succeeding sections of this chapter, means any person owning, controlling, operating, or managing any motor vehicle, trailer, or semitrailer for the transportation of persons or property over the public highways of this state, but shall not include corporations in so far as they own, control, operate, or manage motor vehicles * * * when exclusively used in relation or incidental to farming, mining, excavating or logging operations, or motor vehicles exclusively used in the transportation of products originating in or produced from or necessary to or for farming, mining, or logging or excavating operations when transporting such products actually produced or owned by the owner of such motor vehicle or motor vehicles, or occasionally used in hauling such products in the ordinary exchange of work'. Motor carriers, not so excepted by these or other provisions of the motor carrier compensation act, are forbidden to operate their motor vehicles without first having complied with its provisions. SDC 44.9927.

The declared purpose of the motor carrier compensation act is set forth in the Revised Code of 1939 as follows:

'44.0420 Declaration of policy. The business of operating as a motor carrier as defined in section 44.0422 upon the highways of this state is declared to be a business affected with the public interest. The rapid increase in motor carrier traffic over the highways of this state tends to subject said highways to unusual wear and impairs the said highways disproportionately to the travel thereon by the general public, necessitating compensation to the state for the maintenance, upkeep, and policing of the said highways, to the end that said highways may be maintained in the best possible condition for the convenience and use of the general public.'

'44.0421 Unusual use of the highway. For the purpose of this chapter, any person as herein defined, using the public highways of this state as a motor carrier, shall be deemed to be making unusual use of said highways.'

The original statute, Section 3 of Chapter 139, Laws of 1933, excluded 'corporations or persons' engaged in specified transportations from the definition of the term 'motor carrier'. The words 'or persons' were no doubt unintentionally omitted from Chapter 160, Laws 1943, and Chapter 238, Laws 1953, amending Section 3 of the 1933 statute. See State v. Reed, 75 S.D. 300, 63 N.W.2d 803.

The definition of 'motor carrier' was again amended by Chap. 230, Laws 1957. It in part reads as follows: 'The term 'motor carrier', when used in Sections 44.0420 to 44.0432 of Chapter 44.04 of the South Dakota Code of 1939 and amendments thereto shall mean any person, copartnership, or corporation owning, controlling, operating, or managing any motor vehicle * * * for the transportation of persons or property over the public highways of this State. Provided, however, the following shall not be considered within the definition of 'motor carriers', to wit: * * * (10.) When operating a motor vehicle by or for the owner exclusively used in the transportation of products originating in or produced from or necessary to mining when transporting such products actually produced or owned by the owner of such motor vehicle.'

An amendment is usually designed either to alter the operation and effect of earlier provisions or to clarify their meaning. 82 C.J.S. Statutes Sec. 384. There are in the 1957 amendment changes in substance, but they are not here material. It would also appear that the legislature intended a clarification of the prior statute. It sets out each of the eleven exceptions in a subsection beginning with the words 'When operating', which indicates a purpose to exempt motor vehicles primarily on the basis of their use. It will be noted that although this section defining 'motor carrier' has been repeatedly amended, the language 'exclusively used in the transportation of products originating in or produced from or necessary to mining when transporting such products actually produced or owned by the owner of such motor vehicle' remains the same.

Plaintiffs contend that the word 'owner' appearing in the exception under consideration includes a lessee. It is argued that this is the reasonable and practical construction of the exception and that the purpose of the act would be thus effected. It is argued that the act does not...