State v. Black Hills Transp. Co.

• Decision Date: 20 November 1945
• Docket Number: 8758.
• Parties: STATE v. BLACK HILLS TRANSP. CO.
• Court: South Dakota Supreme Court

20 N.W.2d 683

71 S.D. 28

STATE v. BLACK HILLS TRANSP. CO.

No. 8758.

Supreme Court of South Dakota

November 20, 1945

Rehearing Denied Jan. 18, 1946.

George T. Mickelson, Atty. Gen., and E. D. Barron Asst. Atty. Gen., for appellant.

James W. Bellamy, George E. Flavin, and W. A. McCullen, all of Rapid City, for respondent.

ROBERTS Judge.

The state appeals from an order quashing a complaint charging defendant with the operation of a passenger bus on U. S. Highway No. 16 between Rapid City and the Rapid City Air Base 'without having first paid compensation for the unusual use maintenance and upkeep of said highway and the policing of the same and without displaying compensation plates on said motor vehicle.'

SDC 44.0420 provides: 'The business of operating as a motor carrier as defined in section 44.0422 upon the highways of this state is declared to be a business affected with the public interest. The rapid increase in motor carrier traffic over the highways of this state tends to subject said highways to unusual wear and impairs the said highways disproportionately to the travel thereon by the general public, necessitating compensation to the state for the maintenance, upkeep, and policing of the said highways, to the end that said highways may be maintained in the best possible condition for the convenience and use of the general public.'

SDC 44.0421 provides: 'For the purpose of this chapter, any person as herein defined, using the public highways of this state as a motor carrier, shall be deemed to be making unusual use of said highways.'

The term 'motor carrier' as defined in SDC 44.0422 as amended by Chapter 160, Laws 1943, includes public carriers of passengers. Defendant comes within this definition.

SDC 44.0423 as amended by Chapter 161, Laws 1943, divides motor vehicles trailers and semi-trailers operated by motor carriers into eight classes. This section places vehicles in the first seven classes according to gross weight and class 8 includes 'all such vehicles, trailers, or semi-trailers carrying passengers for hire, such as busses and livery vehicles.'

SDC 44.0426 as amended by Chapter 161, Laws 1943, reads in part as follows: 'Every person or corporation, except as otherwise provided in this section, desiring to operate a motor vehicle, trailer, or semi-trailer upon the public highways of this state as a motor carrier, in consideration of the unusual use of such public highways by such person or corporation and in addition to the regular license fee or taxes imposed upon motor vehicles in this state, shall, if a carrier of property, pay to the county treasurer of the county of which the applicant is a resident, or to the Secretary of State if applicant is not a resident of this state, the compensation provided for herein annually. Payment of such annual compensation is to be made before beginning such operation, and on or before July 15th after the effective date of this act, and if a carrier of persons, on or before the first day of each month.'

A graduated schedule of compensation fees then follows. The amounts upon the first seven classes vary from $15 to $325 per year and the fee for vehicles in the eighth classification is 'one dollar per month for each passenger seat rating thereof * * *; for vehicles fitted out with solid rubber tires the above rate and 25 percent additional.'

Defendant contends that the classification of vehicles carrying passengers according to seating capacity and trucks upon the basis of gross weights is improper, arbitrary and unreasonable and that the fees charged motor carriers of passengers is disproportionate to amounts charged motor carriers of freight for the use of the public highways. The only evidence in the record is that submitted by defendant. It consists of opinion of witnesses with respect to the comparative wear and damage caused by trucks and busses and a comparison of fees exacted for the use of highways by trucks and busses of substantially the same weight. On the basis of such comparison, the fees exacted of carriers of passengers are substantially more than that exacted from freight carriers. The trial court concluded that the statute discriminated against defendant, denying to it the equal protection of the laws, and upon this ground granted the motion to quash the complaint.

We must approach the consideration of the question presented with a presumption in favor of the validity of the statute. It should not be held unconstitutional unless its infringement of constitutional restrictions is so plain and palpable to admit of no reasonable doubt. State ex rel. Botkin v. Welsh, 61 S.D. 593, 251 N.W. 189; Mundell v. Graph, 62 S.D. 631, 256 N.W. 121.

The reason appearing in the statute itself for exacting the fees specified therein is that motor carrier traffic imposes special burdens on the use of the highways of the state. Section 44.0420, supra. The highways of the state are public property. They are established and maintained at public expense and their primary use is for ordinary travel and their use for purposes of private gain is special and extraordinary. The right of a state to exact compensation for such use is sustained by numerous decisions. Among them, we cite the following: Hendrick v. State of Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385; Kane v. State of New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222; Mich. Pub. Utilities Commission v. Duke, 266 U.S. 570, 45 S.Ct. 191, 69 L.Ed. 445, 36 A.L.R. 1105; 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; Continental Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155, 81 A.L.R. 1402; Morf v. Bingaman, 298 U.S. 407, 56 S.Ct. 756, 80 L.Ed. 1245, see also annotations in 68 A.L.R. 200 and 75 A.L.R. 13. As aptly said by the court in Alward v. Johnson, 282 U.S. 509, 51 S.Ct. 273, 274, 75 L.Ed. 496, 75 A.L.R. 9; 'The distinction between property employed in conducting a business which requires constant and unusual use of the highways and property not so employed is plain enough.'

Where there is power to impose a license or privilege tax, the Legislature may classify and may subclassify the objects of the tax upon some reasonable basis. State ex rel. Botkin v. Welsh, supra ; In re Hoffert, 34 S.D. 271, 148 N.W. 20, 52 L.R.A.,N.S., 949. The determination of the question of classification is primarily for the Legislature and courts will not interfere unless the classification is clearly arbitrary and unreasonable. 'The power of the state to classify for purposes of taxation is of wide range and flexibility.' Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 48 S.Ct. 423, 425, 72 L.Ed. 770. And the 'classification need not be scientific nor logically appropriate.' Mutual Loan Co. v. Martell, 222 U.S. 225, 32 S.Ct. 74, 75, 56 L.Ed. 175, Ann.Cas.1913B, 529. In Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 750, 83 L.Ed. 1001, Mr. Chief Justice Stone, speaking for the Court, after approving the right of a state to classify vehicles according to the character of the traffic and the burden it imposes on the state, said: 'The classification of the traffic for the purposes of regulation and fixing fees is a legislative, not a judicial, function. Its merits are not to be weighed in the judicial balance and the classification rejected merely because the weight of the evidence...