People ex rel. Auburn Coal & Material Co. v. Hughes

• Decision Date: 19 October 1934
• Docket Number: No. 22514.,22514.
• Citation: 357 Ill. 524,192 N.E. 551
• Parties: PEOPLE ex rel. AUBURN COAL & MATERIAL CO. v. HUGHES, Secretary of State.
• Court: Illinois Supreme Court

357 Ill. 524

192 N.E. 551

PEOPLE ex rel. AUBURN COAL & MATERIAL CO.

v.HUGHES, Secretary of State.

No. 22514.

Supreme Court of Illinois.

Oct. 19, 1934.

Proceeding by the People, on the relation of the Auburn Coal & Material Company, against Edward J. Hughes, Secretary of State, for mandamus. From a judgment granting a peremptory writ of mandamus, respondent appeals.

Affirmed.

Appeal from Circuit Court, Cook County; George Fred Rush, Judge.

Otto Kerner, Atty. Gen. (George C. McCarthy, of Chicago, and Truman A. Snell, of Springfield, of counsel), for appellant.

Kirkland, Fleming, Green & Martin, of Chicago (Joseph B. Fleming, Joseph H. Pleck, and Manly K. Hunt, all of Chicago, of counsel), for appellee.

DE YOUNG, Justice.

The people of the state, on the relation of the Auburn Coal & Material Company, filed an amended petition for a writ of mandamus in the circuit court of Cook county against Edward J. Hughes, as Secretary of State, to compel him to approve the relator's applications for, and to issue, licenses to operate certain motor trucks. The respondent interposed a general demurrer to the amended petition; the demurrer was overruled, the respondent elected to abide by his pleading, and judgment was rendered awarding the peremptory writ of mandamus in accordance with the prayer of the amended petition. From that judgment, the respondent prosecutes this appeal.

The relator, a domestic corporation, by its amended petition, charged that in December, 1933, it applied to the respondent for licenses to operate three motor trucks during the year 1934; that the applications were made upon forms provided by the respondent; that each of the trucks had four wheels and the applications disclosed their gross weights, including the vehicle and the maximum load, as 25,100, 25,600, and 18,200 pounds, respectively; that with the applications, the relator tendered to the respondent a check for $411.50 composed of the following items: License fee, first truck, $150, license fee, second truck, $150, license fee, third truck, $110, and three certificates of title at 50 cents each, $1.50; that the respondent rejected the applications and returned them with the check assigning as his reason the insufficiency of the license fees remitted for the first and the second trucks to the extent of $200; that on January 5, 1934, the relator re-submitted its applications for the licenses accompanied by its certified check for $411.50 and the written representation that its trucks were operated wholly within the city of Chicago; that the sum for which the check was drawn constituted the fees, and all the fees, prescribed by law; and that the respondent again refused to issue the licenses requested because $250 had not been tendered as the license fee for each of the two larger trucks. It is further alleged in the amended petition that pursuant to the authority conferred by paragraph 2 of section 3 of the Motor Vehicle Law (Smith-Hurd Ann. St. c. 95 1/2, § 3, par. 2), the council of the city of Chicago passed an ordinance, known as section 2054 of the Municipal Code, by which four-wheeled vehicles having a maximum gross weight, when loaded, of 36,000 pounds, may be operated on the streets of the city; that the relator operates its trucks within and not beyond the limits of the city of Chicago; that it has complied with all the requirements of the statutes of the state and the ordinances of the city respecting the operation of its motor trucks; and that, for the fees tendered to the respondent, it is entitled to state licenses to operate its trucks within the boundaries of that city.

The appellant, the Secretary of State, contends that he is prohibited by paragraph 1 of section 3 of the Motor Vehicle Law (Smith-Hurd Ann. St. c. 95 1/2, § 3, par. 1) from issuing a license for the operation of any self-propelled four-wheel vehicle, the gross weight of which, including the vehicle and the maximum load, exceeds 24,000 pounds. To sustain the judgment, the appellee maintains that the license fee for a four-wheel truck having a maximum gross weight of more than 20,000 pounds is fixed at $150 by subdivision (g) of section 9 of the same act (Smith-Hurd Ann. St. c. 95 1/2, § 9(g); that this sum is the maximum license fee for such a truck; and that section 3 does not modify or conflict with the provisions of section 9.

By section 2 of the Motor Vehicle Law (Smith-Hurd Ann. St. c. 95 1/2, § 2, Cahill's Rev. St. 1933, c. 95a, § 2, p. 1882) motor vehicles are classified into two divisions. Of these the first comprises vehicles designed and used for the carrying of not more than seven persons; and the second, vehicles designed and used for carrying freight or more than seven persons. The trucks for which licenses are sought fall within the second division. The first paragraph of section[357 Ill. 527]3 (Smith-Hurd Ann. St. c. 95 1/2, § 3, par. 1) restricts the maximum gross weight permitted on the road surface through any axle of any vehicle to 16,000 pounds, and the number of pounds per inch of width of tire upon any one wheel to 800 pounds, with the further limitation that the gross weight, including the vehicle and the maximum load of any self-propelled four-wheel vehicle shall not exceed 24,000 pounds. By the second paragraph of the same section, it is provided that weight limits 50 per cent. above those designated in the first paragraph may be permitted by ordinances in cities having a population of more than twenty thousand but that the increases shall not apply to vehicles when outside the boundaries of such cities. The third and fifth paragraphs of section 3 (Smith-Hurd Ann. St. c. 95 1/2, § 3, pars. 3, 5) prescribe width and length limitations of motor vehicles. The fourth paragraph provides that upon the filing in the office of the Secretary of State of an application for the registration of a vehicle of the second division and the payment of the requisite fee, the Secretary shall issue to the applicant the regular number plate which shall exhibit, in addition to the number, a letter designating the gross weight of the vehicle, including its maximum load.

Section 9 of the Motor Vehicle Law (Smith-Hurd Ann. St. c. 95 1/2, § 9) imposes license fees for the operation upon the public highways of the state of motor vehicles of the second division which, among others, are designed, equipped, or used for carrying freight, goods, wares, or merchandise. Such fees, it is provided, shall be paid to the Secretary of State for each calendar year. Subdivision (f) of this section fixes a license fee of $110 for vehicles, and tractors with one semitrailer each, having a gross weight of more than 16,000 and not more than 20,000 pounds, including the vehicle and the maximum load. Subdivision (g) prescribes a fee of $150 for ‘four-wheel vehicles having a gross weight of more than twenty thousand (20,000) pounds, and vehicles having more than four wheels, and tractors with one semitrailer each, having a gross weight of more than twenty thousand (20,000) pounds and not more than twenty-four thousand (24,000) pounds, including the weight of the vehicle and maximum load.’ Subdivision (h) fixes a fee of $250 for six or more wheeled vehicles, and tractors with one semitrailer each, having a gross...