State ex rel. Brunenkant v. Wallace
| Decision Date | 11 December 1940 |
| Docket Number | 28327. |
| Citation | 30 N.E.2d 696,137 Ohio St. 379 |
| Parties | STATE ex rel. BRUNENKANT et al. v. WALLACE, Registrar of Motor Vehicles. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Trackless electric trolley busses, by virtue of Sections 6290 and 6291, General Code, are exempt from the annual license tax levied upon the operation of motor vehicles on the highways of this state.
2. Section 6290, General Code, which excludes from the meaning of the term 'motor vehicle,' and vehicle propelled or drawn by power collected from overhead trolley wires, is constitutional and not in contravention of the equal protection clause of Section 2, Article I, of the Ohio Constitution, or the corresponding clause in the Fourteenth Amendment of the federal Constitution, or the provision that laws of a general nature shall have uniform operation throughout the state found in Section 26, Article II, of the Ohio Constitution.
The relators, Margaret L. Brunenkant and Edward J. Brunenkant filed a petition in this court seeking a writ of mandamus against Cylon W. Wallace, registrar of motor vehicles department of highways, to compel collection of the annual license tax for the operation of trackless motor busses operated by electric power from overhead electric trolley wires.
The respondent demurs to the petition on three grounds: (1) That the court has no jurisdiction of the subject matter of the action; (2) that the relators have not legal capacity to sue; and (3) that the petition does not state facts which show a cause of action.
In brief, the petition alleges that relators are real estate, sales and automobile license taxpayers of Cuyahoga county, state of Ohio; that they sue on behalf of themselves and all other Ohio taxpayers similarly situated; thay Cylon W. Wallace is the duly qualified and acting registrar of motor vehicles in the state of Ohio; that he is empowered and enjoined by law to collect annual license taxes from the owners and operators of motor vehicles in Ohio; that 'certain public utility companies, including street railway companies, bus companies and other corporations and persons are engaged in operating for profit on the public streets and highways in many of the larger cities of Ohio hundreds of rubber-tired motor vehicles, powered by electric motors that derive their electric power from overhead wires and a trolley pole which permits wide use of the city streets beyond the trolley rials and the streetcar rights of way; that the aforesaid vehicles are operated for profit by the owners thereof without license plates and without the payment of license taxes as provided by the Ohio motor-vehicle laws; that the defendant is informed of the foregoing facts but has neglected, refused and continues to refuse to secure the registration of said vehicles or the payment to the state of Ohio of license taxes by the owners thereof because of an assumed and claimed grant of exemption provided by the Ohio General Code, Section 6290.'
The relators further allege 'that the claimed and assumed exemption from annual license taxes on vehicles 'propelled or drawn by power * * * collected from overhead * * * trolley wires,' as provided by the Ohio General Code, Section 6290, does not exempt and was not intended to exempt from annual license taxes electric-powered vehicles operated off the trolley tracks and upon the streets beyond the streetcar rails and streetcar right of way even though the power for such vehicles is collected from overhead trolley wires; that if the claimed and assumed exemption contained in G.C. 6290 is to be so construed, it violates and is contrary to the equal protection clause in Article I, Section 2 and of the rule of uniformity contained in Article II, Section 26 of the Constitution of the state of Ohio, and is therefor[e] null and void.'
The relators further set out that the Attorney General of the state of Ohio was requested by them to institute mandamus proceedings to compel Cylon W. Wallace to license trackless trolley busses but that such request was refused.
The petition concludes with a prayer for a writ of mandamus.
Edward J. Brunenkant, of Cleveland, for relators.
Thomas J. Herbert, Atty. Gen., and Aubrey A. Wendt, of Akron, for respondent.
The controlling inquiry is whether the petition is subject to a general demurrer. The sufficiency of relators' pleading depends upon whether the allegations of fact show that a ministerial duty rests upon the respondent which he has failed to perform and of which this court will compel performance by a writ of mandamus.
The following statutory provisions are pertinent:
Section 6290, General Code. 'Definition of terms, as used in this chapter and in the penal laws, except as otherwise provided:
'1. 'Vehicle' means everything on wheels or runners, except vehicles operated exclusively on rails or tracks or from overhead electric trolley wires. * * *
Section 6290-1, General Code. '* * * It shall be the duty of the registrar to enforce and administer the laws of the state relative to the registration of and certificates of title for motor vehicles * * *.'
Section 6291, General Code. 'An annual license tax is hereby levied upon the operation of motor vehicles on the public roads or highways of this state * * *.' Such tax shall be at the rates specified in this chapter and shall be paid to and collected by the registrar or deputy registrar * * *.'
The General Assembly, by the enactment of Sections 6290 and 6291, General Code, has clearly and expressly exempted from the annual license tax motor vehicles propelled or drawn by power collected from overhead trolley wires. Consequently trackless trolley busses of which there are many in the state are not licensed.
Relators' specific claim is that Section 6290, insofar as it by definition excludes trolley busses from the term motor vehicle, is unconstitutional. They urge that since Section 6290 is invalid, the term 'motor vehicles,' as found in Section 6291, must be given an unrestricted meaning. Given this meaning the term would include trolley busses and make their operation subject to the annual license tax as other motor vehicles. So if the challenged portion of Section 6290 be held invalid and separable, then Sections 6290-1 nd 6291 would impose a duty on the registrar to collect the tax.
The provision excluding trolley busses from the definition of 'motor vehicle' first crept into the statutes of this state by the amendment effective March 11,...
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