State ex rel. Wis. Allied Truck Owners' Ass'n v. Pub. Serv. Comm'n of Wis.

• Decision Date: 10 May 1932
• Citation: 207 Wis. 664,242 N.W. 668
• Parties: STATE EX REL. WISCONSIN ALLIED TRUCK OWNERS' ASS'N ET AL. v. PUBLIC SERVICE COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

207 Wis. 664

242 N.W. 668

STATE EX REL. WISCONSIN ALLIED TRUCK OWNERS' ASS'N ET AL.

v.PUBLIC SERVICE COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

April 20, 1932.

May 10, 1932.

Action by Wisconsin Allied Truck Owners Association and Walter L. Ahrens, plaintiffs, commenced by leave of this court, to restrain the defendants, Public Service Commission of Wisconsin, and Solomon Levitan, as State Treasurer, from enforcing the provisions of chapter 454, Laws 1931.Stephens, Sletteland & Sutherland, of Madison, for plaintiffs.

John W. Reynolds, Atty. Gen., and Benjamin Poss, Sp. Counsel, of Milwaukee (David E. Lilienthal, of Chicago, Ill., of counsel), for defendants.

C. R. Dineen and Walter Drew, both of Milwaukee, amici curiæ.

PER CURIAM.

The act challenged by this action, known as the Truck Ton Mile Tax Law, is held constitutional. The prayer of the petitioners for a permanent injunction is denied. The construction placed upon the act by the public service commission is approved in principle, except as to vehicles not transporting freight. An opinion will be filed in due course.

OWEN, J.

The law under scrutiny in this action is chapter 454, Laws 1931, imposing a ton mile tax upon certain trucks used upon the highways of this state. Chapter 194 of the Statutes originated in chapter 395, Laws 1927, and imposed certain regulations and taxes upon motor vehicles when used as common carriers. Said chapter 194 of the Statutes is termed “Automobile As A Common Carrier.” That chapter, in connection with section 76.54 of the Statutes, imposed upon auto transportation companies, defined generally as persons, operating motor vehicles as common carriers, whether for persons or freight, a certain ton mile tax.

The general purpose of chapter 454, Laws 1931, was to subject heavy trucks used upon the highways of the state to a similar tax. This was accomplished by adding to chapter 194 what is known as section 194.16. That section created a new class operating motor vehicles upon the highways which it designated as “Motor Vehicle Hauling Company.” It defined motor vehicle hauling company as:

“Every person, firm or corporation or their lessees, trustees or receivers, owning, controlling, managing or operating any motor vehicle, trailer or semitrailer upon a public highway in this state, including operations between any points within this state and/or through the state, for the purpose of moving, hauling or transporting goods, wares, merchandise or other property for hire or consideration of any kind, under oral, written, express or implied contract, or without hire or consideration or for or as incidental to the business of the owner or operator, excepting the following:

(a) Motor vehicles in single units, or in combinations with other motor vehicles or trailers or semitrailers where the aggregate weight of such units or combinations does not exceed three tons;

(b) Motor vehicles, trailers or semitrailers owned or operated by the state or any political subdivision thereof;

(c) Motor vehicles, trailers or semitrailers used or operated exclusively in transporting or delivering dairy or other farm products between the point of production and the primary market;

(d) Motor vehicles, trailers and semitrailers operated within the limits of an incorporated village or city;

(e) Auto transportation companies as defined in subsection (6) of section 194.01.”

The section further provides that no motor vehicle subject to the section shall be operated on the highways without first obtaining a permit therefor from the public service commission for which a fee of $5 is prescribed. Section 76.54, Stats., the section under which the ton mile tax is imposed, is amended, bringing motor vehicle hauling companies under its provisions and subjecting them to the duty of keeping the same daily records, making the same reports, and paying the same taxes required of auto transportation companies.

This law meets with the same reception that has been accorded to every other attempt made by the Legislature to require those using the highways of the state to pay some just proportion of the expense incident to their construction and maintenance. Though it is now thoroughly established and generally recognized that the state may exact compensation from those who use its highways (Hendrick v. State of 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;Sprout v. City of South Bend, 277 U. S. 163, 48 S. Ct. 502, 72 L. Ed. 833, 62 A. L. R. 45;Interstate Transit v. Lindsey, 283 U. S. 183, 51 S. Ct. 380, 75 L. Ed. 953), we have here much the same attack upon this law that was made upon prior attempts of the Legislature in this direction. State ex rel. Transportation Association of Wisconsin v. Zimmerman, 181 Wis. 552, 196 N. W. 848;State ex rel. Northern Transportation Company v. Railroad Commission, 196 Wis. 410, 220 N. W. 390;Interstate Trucking Co. v. Dammann (Wis.) 241 N. W. 625. The law is challenged upon the ground that it is so ambiguous and uncertain as to be impossible of understanding so that a person may know whether he is violating the law; that it denies the equal protection of the laws because of unjust and arbitrary classification; and because it provides for unjust and unreasonable exemptions. Prompted by the zeal of counsel, the law has been raked with a finetooth comb, resulting in the presentation of trivial and unsubstantial points, which too often results from the excessive zeal of counsel and which tends to confusion rather than clarification in both presentation and consideration of the case. To take up seriatim and in detail all of the points raised by counsel who assail the law (and many of them seem to be merely “raised”), would extend this opinion to an inordinate length in proportion to the contribution which would result to the jurisprudence of the state. Our treatment of the statute will be along somewhat broader lines than those followed in the brief of counsel, but we believe that our discussion along these lines will unerringly indicate to the studious mind the response of the court to many “points raised” which will not be dignified by separate consideration.

[1][2][3] In the first place, there can be no doubt that the tax imposed is for the exact purpose declared by the law, namely, a compensation for the use of the public highways and their maintenance and repair. Such a charge may be made by the state when it is clear that the charge imposed is for the use of the highways. While this purpose on the part of the state may appear in many different ways, it can appear with no greater certainty than when the tax imposed is in the nature of a ton mile tax, which is a tax imposed in exact proportion to the use made of the highways. The fact that the tax here imposed is a ton mile tax is the most indubitable evidence that the tax imposed is for the legitimate purpose of compensating the state for the use of its highways. When such is the case, it matters not what the state does with the money it receives. When the purpose of the tax is not so clear, then an inquiry as to what the state does with the proceeds of the tax may throw some light upon the purpose of the tax, but no such inquiry is essential where the tax imposed is a ton mile tax.

[4] This law, however, exacts a charge separate and apart from the ton mile tax. It exacts a permit fee from all those who come under the provisions of the act. It is said that, if this fee is a charge made for the purpose of covering the expense incident to an enforcement of the law, then it cannot be sustained, because it is more than is necessary for that purpose.

By subsection 5 of section 20.51, Stats. as added by Laws 1931 (Sp. Sess.), c. 5, the money thus raised, together with the fees collected by virtue of section 194.11, being fees paid by auto transportation companies for obtaining a certificate from the public service commission, are appropriated to the public service commission to carry out the provisions of chapter 194. It is contended that the moneys arising from the permit fee of $5 paid by auto transportation companies will greatly exceed the cost of enforcing the law, and that by this appropriation the money is appropriated, not only for the purpose of enforcing this law, but for the purpose of enforcing all of the provisions of chapter 194, many of which do not relate to motor vehicle hauling companies.

It is apparent that the enforcement of this law will entail considerable expense if it is efficiently enforced. It will require police duty in checking up all trucks used upon the highways the extent of which may be limited only by the amount of money available for the purpose. There is no way for the court to determine whether the $5 permit fee is or is not an unreasonable appropriation for that purpose. But however that may be, the Legislature evidently did not consider it sufficient, because, by subsection 6 of section 20.51, it in addition appropriated annually “such sums as may be necessary for the administration of sections 76.54 and 194.16.” Our conclusion that the permit fee of $5 can be justified on the ground that it is a reasonable charge made for the purpose of covering the expense of administering the law renders it unnecessary for us to consider whether it may be justified as proper compensation for the use of the highways in addition to the ton mile tax imposed.

[5] The law, as is usual with reference to such laws, gives rise to certain classifications, aside from the exemptions introduced into the law, many of which classifications are assailed on the ground that they are arbitrary and discriminatory. It is suggested in the briefs that the law imposes an unjust burden upon and discriminates against interstate commerce. This suggestion, however, is not accompanied by any attempt to demonstrate that the law does, or...