State v. Gish
| Decision Date | 18 December 1914 |
| Docket Number | 29628 |
| Parties | STATE OF IOWA, Appellee, v. B. H. GISH, Appellant |
| Court | Iowa Supreme Court |
Appeal from Hardin District Court.--HON. CHARLES E. ALBROOK, Judge.
THIS is a criminal prosecution on information charging the defendant with the operation of his automobile upon the public highway without displaying the appropriate number plates thereon. Upon appeal to the district court, and trial had thereunder the defendant was found guilty and a judgment imposing a fine against him was entered. He appeals Reversed and Remanded.
Reversed and Remanded.
George Cosson, Attorney General, for appellee.
Wesley Martin, for appellant.
The information charged the defendant with the violation of Secs. 7, 8, and 12, of Chapter 72 of the Acts of the 34th General Assembly, in that on May 29, 1913, he operated upon the public highway his motor vehicle, without having displayed thereon registration numbers, as required by the statute. That the defendant was operating his motor vehicle upon the public highway on the date named and that no number plates for 1913 were displayed thereon was and is conceded. His denial of guilt was predicated upon his inability to obtain from the secretary of state his official number plates, he himself having complied with every prerequisite of the statute to entitle him to such number plates. He offered evidence tending to prove that more than one month prior to May 29, he had properly re-registered his motor vehicle with the secretary of state and had paid the full fee required therefor; and also tending to show that the re-registration had in fact been entered by the secretary of state and a 1913 number assigned to the defendant, and that the re-registration receipt, including the number, had been received by the defendant; that the defendant failed to receive his number plates and that such failure was through no fault on his part. This line of evidence was all rejected on the ground that the sole question to be tried was whether the defendant operated his motor vehicle upon the public highway at the time alleged without displaying the required number plates. Upon this holding the defendant was necessarily convicted, regardless of the reason for the failure to display number plates and regardless of the question of his own default in relation thereto. We are first confronted, therefore, with the necessity of construing the statute upon which the prosecution is based.
The information charged the violation of sections 7, 8, and 12 of Chapter 72 of the Acts of the 34th General Assembly "and amendments thereto." This chapter was amended by chapter 130 of the Acts of the 35th General Assembly. By this amending chapter, substitutes were enacted in lieu of sections 7 and 8 of the previous statute. Such substitutes, however, made no changes in sections 7 and 8 that bear upon any question involved in this case. For the convenience of this discussion, therefore, we will take no account of the amending Chapter 130, Laws Thirty-fifth General Assembly, and will refer to the sections as numbered in the previous statute. The evidence on the trial disclosed no violation of Secs. 7 and 8. The only offense contended for by the state was the violation of Sec. 12, which is as follows:
Section 3 of the act in question puts the duty of initiative upon the owner of a motor vehicle and requires him to register such vehicle with the secretary of state and to furnish certain data in his application for such registration. Sections 7 and 8 provide for the payment of the annual fee to the same officer. Section 5 lays upon the secretary of state the duty to make the registration in a public record and to assign to the vehicle a "distinctive number." Section 6 provides as follows:
When the owner has complied on his own part with every requirement of the statute necessary to entitle him to receive the number plates from the secretary of state, and he fails to receive the same only because such official is unable to furnish them, is this a lawful excuse for his failure to display such number plates upon his motor vehicle? And in such case, is it a violation of Sec. 12 to operate such vehicle upon the public highway without displaying such number plates?
To put it in another way, what is the gist of the offense defined in such section? Is it the operation of the motor vehicle? Or is it the failure to attach and display the number plates while operating the vehicle?
It will be noted that Sec. 12, above quoted, in terms prohibits the operation of a motor vehicle upon the public highways "unless such vehicle shall have a distinctive number assigned to it by the secretary of state and two number plates . . . conspicuously displayed, etc." Construing this section alone without regard to any constitutional limitation and without regard to the alternating duties of the owner and the secretary of state as specified in the preceding sections already referred to, it would bear the construction put upon it by the trial court. According to such construction, the operation of the vehicle is absolutely prohibited if number plates cannot be obtained, regardless of any fault on the part of the owner. This construction has its analogy in the construction adopted by us of the statutes relating to the sale of intoxicating liquors and to permits and consents to sell. The reason of such construction of such statutes is that absolute prohibition of the sale of intoxicating liquors is the rule in this state and that such prohibition is not lifted except by the full performance of the necessary conditions precedent.
These statutes and our construction thereof rest upon the undoubted legislative authority to enact absolute prohibition of the sale of intoxicating liquors. If the legislature has authority to enact absolute prohibition of the use of motor vehicles, it might afford a reason why an analogous construction should be put upon Sec. 12 above quoted as is put upon such statutes relating to sales of intoxicating liquors. But counsel for the state do not claim so broad a legislative authority. Doubtless no one will contend that the legislature can absolutely prohibit the use of motor vehicles without transcending its constitutional limitations. It may regulate their use; but it can no more prohibit such use than it could prohibit the use of lumber wagons. The right of regulation rests upon its own peculiar ground, and is free from constitutional objection. As a means of such regulation, there may be imposed upon the owner reasonable duties which shall be performed by him as a condition precedent to his use of the vehicle.
Taking the entire legislative act now under consideration, it is manifestly a regulation of the use of motor vehicles and not an attempted prohibition thereof. It ought, therefore, to be construed consistently with its character in that regard. The gist of the violation, therefore, must be not the mere use of the motor vehicle by the owner, but the failure of the owner to perform the statutory duties laid upon him as conditions precedent to its use. In order that the owner may be constitutionally precluded from the use of his vehicle, he must himself be found in default in the performance of some statutory duty imposed upon him as a condition precedent to its use.
Turning now to Secs. 3, 7, and 8 of the act in question, we have already noted that they require a registration, or application for registration, and the payment of the required fee by the owner of the vehicle. Thereupon Secs. 5 and 6 of the act define the duties of the secretary of state in relation to such registration. These duties include that of forwarding to the owner, without expense, "two number plates."
These number plates being furnished, Sec. 12 casts upon the owner the duty to attach them to his vehicle "conspicuously displayed." If, in the case before us, the number plates had been received by the defendant and he had failed to use them in the manner specified, he would be clearly guilty of violating Sec. 12. Assuming, however, as the rejected evidence tended to show, that the secretary of state failed to forward the number plates, manifestly the defendant could not be in default for failure to attach them. He could neither supply them himself nor substitute others for them. Section 12 must be construed in the light of Sec. 6. Section 6 in terms undertakes that number plates shall be furnished to the owner. The mandate of Sec. 12 that such number plates shall be attached to and conspicuously displayed upon the vehicle necessarily rests upon the implication that the requirements of Sec. 6 shall have been first duly performed. Counsel for the state do not contend for any power in the legislature to penalize the owner of a vehicle for failure of ...
To continue reading
Request your trial