State v. Crosson

• Citation: 33 Idaho 140,190 P. 922
• Parties: STATE, Respondent, v. FRANK CROSSON and J. F. KOLL, Appellants
• Decision Date: 21 June 1920
• Court: United States State Supreme Court of Idaho

190 P. 922

33 Idaho 140

STATE, Respondent, v. FRANK CROSSON and J. F. KOLL, Appellants

Supreme Court of Idaho

June 21, 1920

CONSTITUTIONAL LAW-"CLASS LEGISLATION"-COMMON CARRIERS.

A law which is made applicable to one class of persons alone must be based on a substantial difference between the situation of its members and that of those to whom it does not apply, and one which purports to impose on a certain class, engaged in the transportation of freight and passengers for hire burdensome taxes and regulations, and to exempt therefrom others engaged in the same business, without justification or reason for the classification, conflicts with art, 1, sec 13, of the constitution of Idaho.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.

Appellants were convicted of violating C. S., secs. 2439 and 2440 Reversed.

Judgments reversed, with instructions.

E. G. Rosenheim and C. C. Cavanah, for Appellants.

The provisions of the statute under which these actions were brought are unconstitutional, as they deprive the defendants of their property without due process of law, deny them the equal protection of the law, abridge the privileges and immunities of the citizens, are special and class legislation, and arbitrarily discriminate between citizens similarly situated and under like conditions and circumstances engaged in the lawful business of carrying passengers or freight in automobiles or motor trucks. (C. S. 1919, secs. 2380, 2439, 2440; U. S. Const., 14th Amendment; Idaho Const., sec. 1, art. 1, sec. 19, art. 3; Bailey v. People, 190 Ill. 28, 83 Am. St. 116, 60 N.E. 98, 54 L. R. A. 838; City of Pasadena v. Stimson, 91 Cal. 238, 27 P. 604; Berry on Automobiles, 2d ed., sec. 115, p. 132; State v. Lawrence, 108 Miss. 291, Ann. Cas. 1917E, 322, 66 So. 745; Siciliano v. Neptune Tp., 83 N.J.L. 158, 83 A. 865; Cooley, Const. Limitations, 5th ed., 484; Frorer v. People, 141 Ill. 171, 31 N.E. 395, 16 L. R. A. 492; Yick Wo. v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385, see, also, Rose's U.S. Notes; People v. Gillson, 109 N.Y. 389, 4 Am. St. 465, 17 N.E. 343; Kellaher v. Portland, 57 Ore. 575, 110 P. 492, 112 P. 1076; John v. Northern P. Ry. Co., 42 Mont. 18, 111 P. 632, 32 L. R. A., N. S., 85; Attorney General v. Jochim, 99 Mich. 358, 41 Am. St. 606, 58 N.W. 611, 23 L. R. A. 699; 6 R. C. L. 374; City of Chicago v. Banker, 112 Ill.App. 94; State v. Finch, 78 Minn. 118, 80 N.W. 856, 46 L. R. A. 437.)

The legislature did not have power or authority under the police power of the state to enact the provisions of the statute in question, nor is said statute a police regulation. ( Gulf, C. & S. F. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666, see, also, Rose's U.S. Notes; State v. Moore, 113 N.C. 697, 18 S.E. 342, 22 L. R. A. 472; Blakamore on Law of Motor Vehicles, 2d ed., sec. 107, p. 83; Vernor v. Secretary of State, 179 Mich. 157, Ann. Cas. 1915D, 128, 146 N.W. 338, 342; Federalist, No. 44; State v. Walsh, 136 Mo. 400, 37 S.W. 1112, 35 L. R. A. 231; Ex parte Jentzsch, 112 Cal. 468, 44 P. 803, 32 L. R. A. 664; Jew Hoo. v. Williamson, 103 F. 10; Ex parte McCapes, 157 Cal. 26, 106 P. 229; In re Guerrero, 69 Cal. 88, 10 P. 261.)

R. L. Black, Attorney General, Elbert S. Delana, Prosecuting Attorney, and Raymond L. Givens, for Respondents.

The statute under consideration is not class legislation, because our supreme court has held that the making of a proper classification is legal, as long as the law operates equally upon every member of each particular class. That is not class legislation, but a proper division for the purpose of a just and equitable enforcement. Each statute is to be considered in the light of the purpose for which it was drawn, and if a distinction is reasonable and necessary, such classification is proper. (State v. Fite, 29 Idaho 463, 159 P. 1183.)

This statute means that a motor vehicle operating over any route, whether between fixed termini or not, brings it within the operation of the statute and makes it a common carrier, which is the situation of the defendants herein as disclosed by the agreed statement of facts. (Lloyd v. Haugh etc. Storage & Transfer Co., 223 Pa. 148, 72 A. 516, 21 L. R. A., N. S., 188; Huston v. City of Des Moines, 176 Iowa 455, 156 N.W. 883; Smith v. State, 130 Md. 482, 100 A. 778; City of Buffalo v. Goodman, 77 Misc. 355, 136 N.Y.S. 568; City of Memphis v. State, 133 Tenn. 83. Ann. Cas. 1917C, 1056, 179 S.W. 631, L. R. A. 1916B, 1151; Thielke v. Albee, 79 Ore. 48, 153 P. 793; State v. Ferry Line Auto Bus Co., 93 Wash. 614, 161 P. 467.)

Other states have statutes authorizing exemptions similar to those under our statute. (State v. Shiffrin, 92 Conn. 583, 103 A. 899.)

Classification is not reviewable unless palpably arbitrary. The court in determining the constitutionality of the legislative enactment may not concern itself with the accuracy or wisdom of the legislative view. (Hill v. Rae, 52 Mont. 378, Ann. Cas. 1917E, 210, 158 P. 826, L. R. A. 1917A, 495; State v. Johnson, 26 Idaho 203, 141 P. 565.)

The statute under consideration and all of its features is in entire harmony with the modern trend of authorities with regard to the use of automobiles as common carriers, both as such and in connection with their use as to the public generally and other persons upon highways. (Babbit on Automobiles, 2d ed., par. 1240; David's Law of the Automobile, par. 89 et seq.; Cobb v. Cumberland County P. & Light Co., 117 Me. 455, 104 A. 844; In re Kessler, 26 Idaho 764, 774, Ann. Cas. 1917A, 228, 146 P. 113, L. R. A. 1915D, 322.)

MORGAN, C. J. Rice, J., concurs, BUDGE, J., concurring in the conclusion.

OPINION

MORGAN, C. J.

Appellants were separately charged with, tried for and convicted of violating C. S., secs. 2439 and 2440, which are intended to prohibit common carriers mentioned in C. S., sec. 2380, subsection 3, from carrying freight or passengers, or both, until they shall have first obtained, under such regulations as may be prescribed by the public utilities commission, licenses and shall have paid therefor a sum of money for each vehicle used, being $ 25, $ 30, $ 40 or $ 50 per annum, according to its carrying capacity, and shall have given bonds for the benefit of any person injured by the carrier's negligence. It is further provided that any person operating as such common carrier without first complying with these requirements shall be guilty of a misdemeanor.

That portion of C. S., sec. 2380, necessary to be considered in deciding this case is as follows:

"The term 'common carrier,' when used in this chapter, includes:

"3. Every . . . person . . . owning, controlling, managing, operating, driving or causing to be operated or driven, or holding out by sign, voice or other device or by advertisement that they will drive, operate or cause to be driven or operated over any particular route or routes or over any route or routes or between specified termini for hire or compensation any automobile, auto stage, motor vehicle or motor truck or any other self-propelled motor vehicle for use in the business of carrying either passengers or freight or both, excepting such as run on rails or tracks not hereinbefore enumerated, and automobiles used exclusively as hearses, ambulances, hotel buses operating solely between hotel and trains, or automobiles or auto trucks used for carrying United States mails on star routes when actually engaged in carrying such mail. . . ."

Appellant, Koll, owned automobiles and operated them in the transportation of passengers for hire, and appellant, Crosson, owned motor trucks and operated them in the transportation of freight for hire, and neither was so engaged in business as to entitle him to come within either of the exceptions mentioned in the statute, nor had either conformed to the requirements above mentioned in the matter of procuring a license or giving a bond.

The cases were consolidated and heard together in this court. Among the contentions made by appellants is that the statutes above referred to violate art. 1, sec. 13, of the constitution of Idaho, which provides: "No person shall . . . be deprived of life, liberty or property without due process of law."

The tax sought to be exacted by the statute under consideration was not levied upon the property of appellants, nor was it demanded of them, because of their use of the public highways with their vehicles. It is an occupation tax and the regulations sought to be imposed upon the class of persons mentioned in C. S. sec. 2380, subsection 3, to which appellants belong, are so sought to be imposed for the government of that class. As is said in respondent's brief: "The license fee...