Solberg v. Davenport

Decision Date26 September 1930
Docket NumberNo. 40262.,40262.
Citation211 Iowa 612,232 N.W. 477
CourtIowa Supreme Court


Appeal from District Court, Woodbury County; Robt. H. Munger, Judge.

Action in equity asking for an injunction restraining the enforcement and carrying out of the provisions of Senate File 199 (Acts 43d Gen. Assem. c. 131), on the ground that said law is unconstitutional. The district court held with the plaintiff, and the defendants appeal.

Reversed.John Fletcher, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and O. T. Naglestad, Co. Atty., and Ray E. Rieke, both of Sioux City, for appellants.

Hays, Baron & Mathews, of Sioux City, for appellee.


Plaintiff was the owner of four motortrucks, equipped with pneumatic tires, which he used in the business of transporting freight under the name of the Sioux City Motor Express. His headquarters were in Sioux City, and, as we understand it, his place of operation was in Woodbury county and adjoining territory. These trucks had a manufacturer's rated loading capacity of 2 1/2 tons each, but plaintiff alleges that he regularly hauls from five to seven ton loads upon each of said trucks. He paid the fees for each of said trucks provided in section 4913, Code 1927, which will be hereinafter set out, for the year commencing January 1, 1929.

The Forty-Third General Assembly passed Senate File 199, which became chapter 131 of the Acts of the 43d Gen. Assem., which will also be hereinafter set out. It became effective by publication May 1, 1929.

Plaintiff alleges that under this latter act defendants are seeking to compel him to pay an additional fee, and it is against this additional fee that he is complaining on the ground that the law is unconstitutional on various grounds, to which reference will hereinafter be made.

Chapter 131 of the 43 Gen. Assem. reads as follows:

Section 1. The owner of any motor truck or trailer may secure a license therefor at a higher rated loading capacity than that specified by the manufacturer or maker, by the payment of the fee required therefor; and upon such application such owner shall be entitled to credit against such higher fee for the amount, if any, already paid as a license fee for such vehicle for the then current year.

Sec. 2. It shall be unlawful to operate upon the public highways of this state any motor truck or trailer carrying a load more than twenty-five per cent. in excess of the rated loading capacity on which the license fee paid on said vehicle is based. Any person owning or operating a motor truck or trailer in violation of the provisions of this section shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than twenty-five ($25.00) dollars and not more than one hundred ($100.00) dollars and upon the third conviction of violation of this act by the owner or operator of such vehicle, the license on such vehicle may be revoked by the motor vehicle department. In that event the number plates and certificate of registration of such vehicle shall be returned to the county treasurer issuing the same. The motor vehicle department, or any of its agents, or any peace officer of the state, shall have authority to enforce provisions of this section.”

To a fair understanding of the plaintiff's contention we also set out in full sections 4913 and 4916, Code 1927:

“4913. Trucks with pneumatic tires. For motor trucks equipped with all pneumatic tires, the annual license fee shall be:

                ¦For 1 ton or less capacity,¦$15.00 per annum¦
                ¦For 1 1/2 ton capacity,    ¦25.00 per annum ¦
                ¦For 2 ton capacity,        ¦40.00 per annum ¦
                ¦For 2 1/2 ton capacity,    ¦65.00 per annum ¦
                ¦For 3 ton capacity,        ¦100.00 per annum¦
                ¦For 3 1/2 ton capacity,    ¦130.00 per annum¦
                ¦For 4 ton capacity,        ¦160.00 per annum¦
                ¦For 4 1/2 ton capacity,    ¦200.00 per annum¦
                ¦For 5 ton capacity,        ¦250.00 per annum¦
                ¦For 6 ton capacity,        ¦300.00 per annum¦

4916. Trucks exceeding six ton capacity. The license fee for trucks for each ton of load capacity above six tons shall be fifty dollars in addition to the six ton rate.”

It is also claimed by the plaintiff, and conceded by the defendants, through their motion, that the word “capacity” used in section 4913 has been construed by the executive department and is treated by all parties hereto as meaning the “manufacturer's rated loading capacity.” In other words, the plaintiff's motortrucks are rated by the manufacturer at a loading capacity of two and one-half tons, and the state has construed the word “capacity” used in said section 4913 as meaning the manufacturer's rated loading capacity and collected taxes on the basis of such rating.

This being an action in equity, defendants filed a motion to dismiss, which was overruled by the district court; hence this appeal.

[1] The first question called to our attention is the claim on the part of the defendants that this is an effort to enjoin the administration of criminal law in the state of Iowa, and hence not maintainable. There is nothing in this contention, as the right to maintain this action is fully established by this court in Bear v. City of Cedar Rapids, 147 Iowa, 341, loc. cit. 351, 126 N. W. 324, 27 L. R. A. (N. S.) 1150;Huston v. City of Des Moines, 176 Iowa, 464, 156 N. W. 883.

[2] It is further urged that the action is not maintainable because the plaintiff has a speedy and adequate remedy at law. This is not a tenable objection, for, if the action is in the wrong forum, the relief under the statute is by motion to transfer to the proper forum, and not by motion to dismiss. Dilenbeck v. Security Savings Bank, 186 Iowa, 308, 169 N. W. 675, 172 N. W. 486.

It will be noted that the force and effect of the later enactment is somewhat confusing in this: The title to the act indicates that the purpose of the Legislature was to change its method of computation of fees, and, instead of taking the manufacturer's rated loading capacity as a basis, the fees are to be fixed upon the actual weight of the load carried, while, under the original law, the weight of the load carried was not an element in the fixing of the fee. If the owner had a motortruck with a specified manufacturer's rated loading capacity of two and one-half tons, he paid a fee on that basis, but the manufacturer's rated loading capacity in no way limited him as to the actual weight of the load carried. The later law provides that, if he carries more weight than the manufacturer's rated capacity, he must pay an additional fee therefor; or, concretely, prior to the 1st day of May, 1929, the plaintiff would pay on these motortrucks a fee of $65 for each truck, while under the new enactment he would pay a fee of $300 on each truck. It is as against this additional fee of $235 that he complains and alleges that the law which creates this additional fee is unconstitutional.

The first ground on which this law is assaulted is based on article 7, § 7 of the Constitution of Iowa, reading as follows: “Every law which imposes, continues, or revives a tax, shall distinctly state the tax, and the object to which it is to be applied; and it shall not be sufficient to refer to any other law to fix such tax or object.”

A reference to said section of the Acts of the 43d Gen. Assem. makes it patent that this section of the constitution, if applicable, has in no way been complied with. The question, therefore, for determination at this point, is whether or not this additional fee provided for is a “tax” within the meaning of this section of the Constitution.

[3] Among the many powers possessed by the state there are two inherent powers with which we are concerned--one, known as the power of taxation; the other, as the police power. The police power in matters of this kind is usually exercised by way of a license. State v. Herod, 29 Iowa, 123;City of Des Moines v. Manhattan Oil Co., 193 Iowa, 1096, 184 N. W. 823, 188 N. W. 921, 23 A. L. R. 1322;City of Des Moines v. Bolton, 128 Iowa, 108, 102 N. W. 1045, 5 Ann. Cas. 906;State of Iowa v. Manhattan Oil Co., 199 Iowa, 1213, 203 N. W. 301.

Much confusion will be found in the decisions from careless use of language and terms such as “license fee,” “license tax,” “privilege tax,” “occupation tax,” “permit,” and “regulation fees,” which are indiscriminately used; yet the word “license” has a definite and distinct meaning. Bouvier in his Law Dictionary defines it as “authority to do some act or carry on some trade or business in its nature lawful, but prohibited by statute except with permission of the civil authority, but which would otherwise be unlawful.” La Plante v. State Board of Public Roads, 47 R. I. 258, 131 A. 641.

[4] Another distinction that is to be kept in mind is that the state possesses complete police power, whereas a municipality is usually limited to the exercise of such police power as is granted to it by the state; hence among the many cases much is said in cases where the municipal corporation is attempting to exercise its limited police power that is not applicable where the state is attempting to exercise its police power.

[5] It is the general rule that, where the charge for the license is imposed in the exercise of the police power, the amount which may be exacted may include and must be limited and measured by the necessary or probable expense of issuing the license and such inspection, regulation, and supervision as may be provided for...

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5 cases
  • Solberg v. Davenport
    • United States
    • Iowa Supreme Court
    • September 26, 1930
    ...232 N.W. 477 211 Iowa 612 ARTHUR SOLBERG, Appellee, v. JOHN A. DAVENPORT, Sheriff, et al., Appellants No. 40262Supreme Court of Iowa, Des MoinesSeptember 26, REHEARING DENIED DECEMBER 13, 1930. Appeal from Woodbury District Court.--ROBERT H. MUNGER, Judge. Action in equity, asking for an in......
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    ... ... 269, 101 ... Ohio 132; Cleveland Refining Co. v. Phipps, 277 F ... 463; State ex rel. McClung v. Becker, 288 Mo. 607, ... 233 S.W. 54; Solberg v. Davenport, 211 Iowa 612, 232 ... N.W. 477; State v. Caplan (Vt.), 135 A. 705; ... Commonwealth v. Boyd, 188 Mass. 79, 74 N.E. 255; ... Carley & ... ...
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    ...nor may one Legislature restrict or limit the power of its seccessors [sic]. 12 C.J. page 806." See also Solberg v. Davenport, 211 Iowa 612, 624, 232 N.W. 477, 483 (1930), where the Supreme Court of Iowa "The general rule is too well settled to need citation of authority that each legislatu......
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    ...authority granted under the statute"); see City of Pella v. Fowler, 215 Iowa 90, 98, 244 N.W. 734, 738 (1932); Solberg v. Davenport, 211 Iowa 612, 617, 232 N.W. 477, 480 (1930). The same principle applies with respect to a city's home rule authority: a city may charge a fee to cover its adm......
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