State v. Caplan

• Decision Date: 08 January 1927
• Citation: 135 A. 705
• Court: Vermont Supreme Court
• Parties: STATE v. CAPLAN.

135 A. 705

STATE

v. CAPLAN.

Supreme Court of Vermont. Windsor.

Jan. 8, 1927.

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Exceptions from Hartford Municipal Court; A. G. Whitham, Judge.

Louis Caplan was charged with violating the Motor Vehicle Act (Acts 1925, No. 70). Demurrer to complaint was overruled, and defendant brings exceptions. Affirmed and remanded.

Argued before WATSON, C. J., POWERS, SLACK, and FISH, JJ., and MOULTON, Superior Judge.

J. Ward Carver, Atty. Gen., and Robert R. Twitchell, State's Atty., of Woodstock (George L. Hunt, of Montpelier, of counsel), for the State.

Raymond Trainor, of White River Junction, and Stanley C. Wilson, of Chelsea, for respondent.

POWERS, J. The respondent, domiciled at Grafton, N. H., is prosecuted for violating the Motor Vehicle Act, No. 70, Acts of 1925. It is charged that being a nonresident owner of a certain motor bus duly registered in the state of New Hampshire, he caused it to be operated for more than 30 regular trips during the current year, on a certain highway in this state while the same was not registered here as required by said act. Having unsuccessfully demurred to the complaint, the respondent excepted, and the case was sent up before trial.

So far as need here be specified, the act provides: That a motor bus is a motor vehicle which regularly and indiscriminately carries passengers over a fixed route; that a resident is one domiciled in this state, or one who lives in another state and continuously conducts a business in this state for three months in any calendar year. Section 3. That residents shall make annual registration of their motor vehicles, and all persons are forbidden to operate such a vehicle on any of our highways unless it is registered according to the act. Section 17. That the registration foe of a motor bus shall be based upon its weight, plus its passenger carrying capacity at 150 pounds per person. Section 33. That a motor vehicle owned by a nonresident, and lawfully registered in the state of his domicile, shall be exempt from the provisions of the act to the extent that the state of his residence grants like exemption to motor vehicles duly registered under the laws of this state. Section 64. That this exemption shall not allow a motor bus owner, maintaining a regular schedule of trips as a carrier of passengers for more than 30 trips in any calendar year; that such person, after such 30 trips, shall be deemed to be a resident under the act. Section 64. That the definition of a resident shall be so construed as to persons domiciled in an adjoining state and conducting a business in this state as to conform to the registration requirements of such adjoining state applying to persons domiciled in this state and conducting a business in that state. Section 3.

So it comes to this: This New Hampshire owner, having had his motor bus lawfully registered in that state, but not in this, and having caused it to be operated on a regular schedule over the specified highway in this state for more than 30 trips within the year, is not entitled to the exemption provided for in section 64, but as to the excess trips is thereunder a resident, and has violated the terms of section 17 and incurred the penalty prescribed by section 109.

It may be that under the reciprocal provision of section 3, above referred to, the term "resident" should be so construed as to exclude the respondent. But the record does not disclose sufficient facts to show this. It makes no difference with his situation here. If he is not to be classed as a "resident," he must be a "nonresident," for that term includes all persons living outside this state who are not "residents" under the act. Section 3. If the respondent is to be classed as a "nonresident," he was required to register his bus under section 65; or under section 66 if his residence entitled him to "zone registration" as therein provided. In either or any event, registry was required of him before he could lawfully make his thirty-first trip.

The demurrer challenges the complaint for defect of material allegations.

That a criminal complaint that fails to allege every fact necessary to constitute the offense charged, though that be statutory, is defective and demurrable, is a familiar rule of criminal pleading. State v. Brown, 72 Vt. 410, 412, 48 A. 652; State v. Perkins, 88 Vt. 121, 124, 92 A. 1; State v. Aaron, 90 Vt. 183, 185, 97 A. 659. That such complaint must set forth the charge with such particularity as will reasonably indicate the offense of which the respondent is accused, and enable him intelligently to prepare his defense, and successfully to plead the judgment if subsequently prosecuted for the same offense, is equally familiar law. State v. Monte, 90 Vt. 566, 568, 99 A. 264; State v. Villa, 92 Vt. 121, 123, 102 A. 935. The allegations of this complaint are short in neither of these respects. The basis of the charge is the operation of an unregistered motor vehicle on the highway. That the respondent did this is admitted by the demurrer. Such act was necessarily and inevitably criminal. It was not criminal merely because done in a particular way or at a particular place, nor could the offense be so committed as to involve different punishments. The respondent asserts that he was entitled to zone registration under section 66. on the ground that he lives in an adjoining state within 15 miles of the boundary. Perhaps so, but the complaint does not show the necessary facts. It is true that one need not allege more than he is required to prove, and that facts of which the court will take judicial notice need not be alleged. McEain v. State, 15 Ala. App. 24. 72 So. 511, 512; People v. Snyder, 279 Ill. 435, 117 N, E. 119, 121; Acton v. State, 80 Md. 547, 31 A. 419, 420; United States v. Golden (D. C.) 1 F.(2d) 543, 545. We take judicial notice of the geography of the state, Lynch's Adm'r v. Central Vermont R. Co., 89 Vt. 363, 368, 95 A. 683, including the location and extent of the various towns therein, State v. Shaw, 89 Vt. 121, 124, 94 A. 434, L. R. A. 1915F, 1087. We take notice of the location and general extent of other states, Daly v. Old, 36 Utah, 74, 99 P. 460, 28 L. R. A. (N. S.) 463, 409, but not, ordinarily at least, of the location or extent of their political subdivisions, 1 Chamb. Ev. § 737; Hudson v. Webber, 104 Me. 429, 72 A. 184, 186.

We cannot say as a matter of judicial knowledge that some point in Grafton, N. H., is not, measured by the nearest road, more than 15 miles from the boundary dividing the two states—which itself we know as a matter of common knowledge is in dispute. Nor is the argument sound that the complaint should show by proper averments that, under the reciprocal provision referred to, the New Hampshire statute does not affect the respondent's situation. It could not exempt him; at the most, it could only determine his classification under the act. It is by no means the case of a condition or exception which enters into the definition of the offense charged, which alone has to be negatived in a complaint or indictment. State v. Paige, 78 Vt. 286, 288, 62 A. 1017, 6 Ann. Cas. 725. If the provision affected this respondent in a way to protect him from the charge, it would be a matter of defense, only, under the authorities collected in the case last cited. The record does not present the question what fee the respondent is required to pay; nor whether he is entitled to zone registration; nor how he should be classified under the reciprocal provision. Resident or nonresident, after he had made 30 regular trips over this highway, he became a criminal if he made any more such trips without registering his bus.

The respondent attacks the constitutionality of the act. He says the registration fee required by the act is a tax, and that the classification made by the act is arbitrary, unreasonable, and discriminatory in violation of both state and federal Constitutions.

The regulation of motor vehicles used upon the public highways in order to conserve the safety and general welfare of the people is an attribute of the police power of the state, and its exercise is nowhere disputed. It is everywhere conceded. And so long as the registration fee was confined to a sum fairly required to cover the expense of regulation and supervision it was regarded as a fee and not as a tax. Bub since such fees have been so increased as to produce a large surplus over such expenses, though this be devoted to the maintenance and improvement of the highways, the "fee" has come to be looked upon as a tax, and the statute providing for it as a revenue measure. Thus, when the Massachusetts registration fee was only $2 per year, it was held in Commonwealth v. Boyd, 188 Mass. 79, 74 N. E. 255, 108 Am. St. Rep. 464, 465, that this fee was exacted under an exercise of the police power and was not a tax. But subsequently, when that fee had been greatly increased and graduated according to the horse power of the vehicle's motor, it was the opinion of the justices of that court that the so-called fee was an excise tax. Opinion of the Justices, 250 Mass. 591, 148 N. E. 889, 894. This accords with the holdings of this court.

The determining factor in the question is: What is the primary purpose of the charge? So long as it is exacted as a mere incident of lawful regulation, it is a fee and not a tax; but when revenue is a primary purpose of its exaction, it is a tax. State v. Tarvis, 89 Vt. 239, 244, 95 A. 541. The time has come when most, if not all, the states recognize the revenue possibilities of this method of taxation, and have enacted laws for the double purpose of regulation and revenue. Our own act is of that class. Provisions for safeguarding the public are included in it, and the fees are fixed with a view to the production of revenue. The latter is made sufficiently dominant to require a holding that so much of the act is enacted under the taxing...