Piper v. Bingaman, 2778

• Decision Date: 30 November 1935
• Docket Number: No. 2778,2789.,2778
• Citation: 12 F. Supp. 755
• Parties: PIPER v. BINGAMAN. MORF v. SAME.
• Court: U.S. District Court — District of New Mexico

12 F. Supp. 755

PIPER v. BINGAMAN.

MORF v. SAME.

Nos. 2778, 2789.

District Court, D. New Mexico.

November 30, 1935.

Herbert K. Greer, of Santa Fe, N. M., and Oren Parmeter, of Dallas, Tex., for plaintiff E. M. Piper.

Geo. E. Remley, of Santa Fe, N. M., Ralph K. Pierson, of Compton, Cal., and Samuel P. Block, of Los Angeles, Cal., for plaintiff Howard Morf.

Frank H. Patton, Atty. Gen., Quincy D. Adams, Asst. Atty. Gen., and E. R. Wright, of Santa Fe, N. M., for defendant.

Before BRATTON, Circuit Judge, and NEBLETT and KENNAMER, District Judges.

PER CURIAM.

These cases were submitted together and may be decided in like manner as they involve questions common to both. Plaintiff Piper resides in Dallas, Tex., and plaintiff Morf resides in Los Angeles, Cal. They are engaged separately in the business of purchasing used automobiles in Texas and adjacent states other than New Mexico, causing them to be transported in overland processions or caravans through the states of Texas, New Mexico, and Arizona and into California and there selling them at wholesale to dealers in used automobiles. The object of each action is to restrain the defendant, as commissioner of revenue of the state of New Mexico, from enforcing collection of the tax provided in chapter 56, Laws of New Mexico 1935. Both plaintiffs attack the validity of the statute, charging that it is repugnant to the commerce clause (article 1, § 8, cl. 3) and the Fourteenth Amendment to the Constitution of the United States, and, in addition, plaintiff Morf asserts that it was repealed by chapter 136 of the same legislative session.

The statute, in subdivision (d), § 1, forbids use of the highways of the state for the transportation of any motor vehicle on its own wheels for the purpose of sale either within or without the state which is not licensed by the state or owned and operated by a dealer duly licensed and operated under a dealer's license, without securing a special permit as therein authorized. The commissioner of revenue is then empowered to issue special permits upon payment of a fee of $7.50 for each single vehicle so transported and a fee of $5 for each vehicle towed or drawn by another. The pertinent part of the statute reads:

"No person, firm or corporation shall use the highways of the State of New Mexico for the transportation of any motor vehicle on its own wheels for the purpose of selling or offering the same for sale to or by any agent, dealer, purchaser or prospective purchaser whether such agent, dealer, purchaser or prospective purchaser be located within or without this state, unless such motor vehicle either:

"1. Is licensed by the State of New Mexico; or

"2. Is owned by an automobile dealer, duly licensed by the State of New Mexico and is operated under a dealer's license duly issued to such dealer; or

"3. A special permit for the use of the highways of this state for the transportation of such vehicle, in the manner in which the same is being transported, has first been obtained and the fee therefor has been paid as hereinafter specified.

"Special permits for the use of said highways in the transportation of such vehicles shall be issued by the Commissioner of revenue of the State of New Mexico upon application on such form as said Commissioner may prescribe and upon payment of a fee of $7.50 for each such vehicle transported by use of its own power and a fee of $5.00 for each such vehicle towed or drawn by another vehicle and not transported in whole or in part by the use of its own power." Section 1 (d).

Plaintiffs are engaged exclusively in interstate commerce in the transportation of their automobiles, but it is settled by repeated decisions that a state may lay upon operators of motor vehicles moving exclusively in interstate commerce a reasonable and nondiscriminatory tax as compensation for the use of the highways and as a fair contribution to the cost of police regulation of traffic. Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385; Kane v. New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222; Clark v. Poor, 274 U.S. 554, 47 S.Ct. 702, 71 L.Ed. 1199; Interstate Busses Corporation v. Blodgett, 276 U.S. 245, 48 S.Ct. 230, 72 L.Ed. 551; Interstate Transit v. Lindsey, 283 U.S. 183, 51 S.Ct. 380, 75 L.Ed. 953; Aero Mayflower Transit Co. v. Georgia Public Service Commission, 295 U.S. 285, 55 S.Ct. 709, 79 L.Ed. 1439. That general doctrine is conceded, but plaintiffs say that the statute does not come within its boundaries because the tax imposed is unreasonable, arbitrary, and discriminatory and bears no reasonable relation to the use made of the highways.

The automobiles transported by plaintiffs are moved in processions or caravans usually consisting of fourteen, sixteen, or eighteen vehicles. Quite frequently they are in units of two coupled together by the use of tow bars or other similar devices with no elasticity or play between them. The front car in the pair is operated by the driver and it pulls or draws the second one. There is no connection between the respective braking systems of the two. Both are controlled by the brakes of the front car. It is obvious that the movement of automobiles in that manner and with the rear vision of the driver impaired by the second car provides a substantially less measure of safety than does the operation of a single vehicle; and caravans of this nature present difficulty and other hazards to travelers. It is often difficult on overtaking such a caravan to pass it. Much delay, inconvenience, and hazard is sometimes encountered. Moreover, there is a mechanic with each caravan and sometimes when one car or a unit of two cars has tire or mechanical trouble, all cars are stopped and that likewise causes traffic difficulty and hazard. And many of the persons who drive automobiles for plaintiffs are not employed regularly. They are not paid anything either as compensation for their services or for expenses. They bear their own expenses and drive the cars merely as a means of obtaining transportation to California. It may reasonably be inferred that they have scant interest in the business or the vehicle being driven and a minimum of regard for the safety of others using the highways. But that is not all. Due to the lack of elasticity or play between two vehicles attached by tow bars or other like devices, the rear car skids, particularly in going around curves, and that causes peculiar wear and tear of the highways. Transportation of automobiles in that manner for sale is a new and distinct commercial business. It bears marked features of dissimilarity from other kinds of transportation. Manifestly, the additional traffic hazards and the wear of the highways which it occasions cast a substantially heavier financial burden upon the state for maintenance and for the enforcement of police and safety measures.

It must be assumed that the Legislature took all of these elements and perhaps others into consideration in fixing the license upon transportation of that kind; and a wide range of discretion must be accorded to the legislative power in dealing with the classification of businesses including commercial transportation, and their subjection to and regulation through an excise or license tax. The propriety of legislative action within the scope of police power is not for the determination of the courts. All such questions relate to policy and are remitted to the judgment of the Legislature whose decision must stand even though its wisdom is fairly debatable. The exercise of scientific precision in classification and in the exaction of licenses or fees for the use of the highways is not essential to validity. Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167. A court is not free to substitute its judgment for that of the Legislature in respect to the choice of expedients or merits between different methods of fixing such fees. Making concrete application of that abstract doctrine, the judgment of the Legislature cannot be overthrown unless the license fee in question is manifestly unreasonable, arbitrary, capricious, or without any reasonable relation to the use of the highways. When the differentiating features of transportation of this kind are borne in mind with the increased hazards of traffic, the deleterious effect upon the highways, and the heavier financial burden of upkeep and police regulations, we cannot say that the statute is open to the attack directed...