Smallwood v. Jeter

• Citation: 244 P. 149,42 Idaho 169
• Parties: MORRIE SMALLWOOD, Appellant, v. F. A. JETER, as Commissioner of Law Enforcement of the State of Idaho, Respondent
• Decision Date: 12 February 1926
• Court: Idaho Supreme Court

244 P. 149

42 Idaho 169

MORRIE SMALLWOOD, Appellant, v. F. A. JETER, as Commissioner of Law Enforcement of the State of Idaho, Respondent

Supreme Court of Idaho

February 12, 1926

ACT TO REGULATE AUTO TRANSPORTATION COMPANIES-TITLE TO ACT-CONSTITUTIONAL LAW-STATUTORY CONSTRUCTION-VERBAL CHANGE IN STATUTE TO CARRY OUT LEGISLATIVE INTENT-LICENSE TAX-AUTO TRANSPORTATION COMPANIES AS COMMON CARRIERS-REGULATIONS UNDER POLICE POWER-AMOUNT OF BOND-QUALIFICATIONS OF BONDSMEN - REASONABLENESS OF LICENSE FEE AND BOND - REASONABLENESS OF CLASSIFICATION-REASONABLENESS OF EXEMPTIONS-LICENSE TAX NOT A "TOLL" NOR DUPLICATE TAXATION.

1. For a statute to be declared unconstitutional, it must clearly appear so; any doubt being resolved in its favor, and a construction sustaining its validity will be adopted, if fairly permissible.

2 Sess. Laws 1925, chap. 197, does not contravene Const., art 3, sec. 16, as it contains but one subject with matters properly connected therewith, and the subject is expressed in the part of the title, "To regulate auto transportation companies."

3 Sess. Laws 1925, chap. 197, is intended to regulate auto transportation companies which engage in business as such, as shown by sections 3, 5, with regard to procuring liability and damage insurance, and filing monthly reports and paying fee of percentage of earnings.

4. Power of the legislature to impose a license tax is on those only who are doing business.

5. In construing a statute, the court may change words thereof to give effect to the manifest intention of the legislature as gathered from the whole, when a literal reading will work an unreasonable or absurd result, especially when necessary to prevent the act becoming a nullity.

6. The title and body of Sess. Laws 1925, chap. 197, includes "all auto transportation companies," and section 3 requires "every" such company before engaging in such business to procure insurance or bond. The further provision as to the amount of insurance and bond, when read literally, exempts vehicles equipped to transport less than twelve passengers, and makes a class by itself of vehicles equipped to carry exactly twenty passengers; the word "less" will therefore be read as "more," in order to obtain the sensible graduated classification apparently intended by the legislature.

7. Under Sess. Laws 1925, chap. 197, sec. 3, liability of insurance or bond of auto transportation company for injury to a single passenger is limited to $5,000, regardless of capacity of vehicle.

8. An auto transportation company engaging exclusively in transportation of property may, under Sess. Laws 1925, chap 197, secs. 3, 4, have permit therefor on giving of $1,000 bond for each car for injury to property; insurance or bond for personal injury being only for injury to passengers.

9. Requirement of Sess. Laws 1925, chap. 197, sec. 3, that auto transportation company give insurance or bond "providing for compensation" can refer only to "any recovery for personal injury" of passenger or "for damage to property," and does not enlarge the company's liability beyond what it would be without the statute.

10. Under presumption that legislature intended to keep within its power, Sess. Laws 1925, chap. 197, providing for auto transportation companies furnishing insurance or bond to satisfy recovery for injury to passenger or damage to property, must be construed as applicable to common carriers only.

11. State cannot by legislative fiat convert property used exclusively in business of private carrier into a public utility, or make the owner a public carrier.

12. The requirement of Sess. Laws 1925, chap. 197, sec. 3, that auto transportation companies furnish insurance or bond to satisfy recovery for injury to passenger or damage to property, is a regulation under the police power which can only be imposed on a public carrier, as distinguished from a private carrier.

13. As that part of Sess. Laws 1925, chap. 197, sec. 3, requiring of auto transportation companies bond to satisfy recovery for injury to passenger or for damage to property, is a regulation that can rightfully be imposed only on public carriers, as distinguished from private carriers, the further imposition, by section 5, of a license tax on the business of such companies, will be considered a part of such regulation, and so imposed on the same class of carriers only.

14. Power to require, as does Sess. Laws 1925, chap. 197, sec. 3, that auto transportation companies, which are common carriers, give bond to satisfy recovery for injury to passenger or damage to property, implies power to establish the qualification of the bondsman as an insurance or bonding company.

15. As the requiring of a bond from auto transportation companies is a matter of legislative discretion, so is the amount of the bond, unless it be wholly unreasonable, or confiscatory and prohibitive of a business which may not be prohibited.

16. The cost of bonds required by Sess. Laws 1925, chap. 197, sec. 3, of an auto transportation company, does not invalidate it as unreasonable; the limit of liability for each car being $5,000 for injury to one person, and a $10,000 maximum liability for injury to all in a vehicle of not over twelve passengers' capacity.

17. License fee of five per cent of gross earnings of auto transportation company imposed by Sess. Laws 1925, chap. 197, sec. 5, is not invalid merely because above cost of regulation.

18. Allegation of complaint, that license fee required of auto transportation company is in excess of value of privilege conferred, is mere conclusion of law, not admitted by demurrer.

19. Even if the business of an auto transportation company will not pay the license tax of five per cent of gross earnings required by Sess. Laws 1925, chap. 197, sec. 5, and leave a margin of profit, this does not require foregoing of the tax.

20. Use of highways, which as to private carriers may be regulated, may as to public carriers be prohibited.

21. Classification of auto transportation companies by Sess. Laws 1925, chap. 197, to subject to regulation only those using the public highways for transportation of passengers or freight for hire as a business, and not those using highways for transportation of their own goods in their own privately-owned vehicles, is not unreasonable.

22. The exemption by Sess. Laws 1925, chap. 197, as to bonds and license tax of auto transportation companies, of vehicles used exclusively for transportation of school children is not unreasonable.

23. Exemption from Sess. Laws 1925, chap. 197, as to bonds and license tax of auto transportation companies of motor propelled cars or engines operated on tracks of steam or electric railroads, and companies operating exclusively in cities, is not arbitrarily discriminative or unreasonable; the former being under jurisdiction of Public Utilities Commission (C. S., secs. 2368-2530), and the latter being left in the control of the cities, and the classes being further so inherently subject to distinction as to permit the classification.

24. Relative to claim of discrimination, in favor of carrying of baggage, of Sess. Laws 1925, chap. 197, sec. 5, imposing on auto transportation companies a license tax of five per cent of gross earnings from freight and passengers carried, carrying of baggage is ordinarily incident to carrying of passengers.

25. That express companies are already subject to a business tax under C. S., sec. 3355, justifies, as against claim of discrimina- tion, the imposition by Sess. Laws 1925, chap. 197, sec. 5, on auto transportation companies of the license tax of five per cent of gross earnings from "freight and passengers" carried, only.

26. That the regulations imposed by Sess. Laws 1925, chap. 197, on auto transportation companies, might burden the carrying of mails, and the necessity of unburdened transportation thereof, are sufficient justification of exemption of mail carried from the license tax, imposed on such companies, of five per cent of gross earnings from "freight and passengers" transported.

27. The five per cent tax on earnings from carrying passengers and freight, imposed by Sess. Laws 1925, chap. 197, sec. 5, on auto transportation companies, is not a "toll" forbidden on federal aid roads by Act Cong. July 11, 1916 (U. S. Comp. Stats., sec. 7477a et seq.); and Act Cong. Nov. 9, 1921 (U. S. Comp. Stats. Ann. Supp. 1923, secs. 7477 1/4-7477 1/4y), but is a license tax on the privilege of using the highways for business purposes.

28. The five per cent tax on earnings imposed by Sess. Laws 1925, chap. 197, sec. 5, being a license tax, does not violate Const., art 7, sec. 5, requiring uniformity, and prohibiting duplication of taxes.

29. The court cannot pass on the manner or form in which plaintiff has right to comply with a statute, he not offering or attempting to comply with it under any terms, but refusing to do so altogether, and seeking to enjoin its enforcement.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Action to enjoin enforcement of Sess. Laws 1925, c. 197, regulating auto transportation companies. From judgment on general demurrer, plaintiff appeals. Affirmed.

Judgment affirmed. Costs to respondent.

Dean Driscoll, A. F. James and Geo. W. Padgham, for Appellant.

The act is a police measure in part, but also a revenue measure, in that the fee exceeds the cost of regulation. (State v. Nelson, 36 Idaho 713, 213 P. 358.)

The insurance provisions are unconstitutional because unreasonable: (a) in amount (People v. Kastings, 307 Ill. 92, 138 N.E. 269); (b) on account of the limitation to surety companies. (George Bolln Co. v. North Platte Valley Irr. Co., 19 Wyo. 542, 121 P. 22, 39 L. R....