State v. Goeson

• Decision Date: 23 July 1935
• Docket Number: No. 6337.,6337.
• Citation: 262 N.W. 70,65 N.D. 706
• Parties: STATE v. GOESON et al.
• Court: North Dakota Supreme Court

65 N.D. 706

262 N.W. 70

STATE

v.GOESON et al.

No. 6337.

Supreme Court of North Dakota.

May 2, 1935.

Rehearing Denied July 23, 1935.

On Petition for Rehearing.

Syllabus by the Court.

1. The highways of this state belong to the state of North Dakota and the state has the right to require those who use the roads and cause deterioration of the highways to contribute specially to their upkeep.

2. In the absence of federal legislation upon the subject, this state is free to prescribe any uniform regulation reasonably necessary for public safety and order in respect to the operation upon its highways of motor vehicles moving in interstate commerce.

3. No one has a vested right to use the state highways as a place for his own businessand private gain, and therefore the state may impose upon motor vehicles engaged exclusively in interstate commerce a charge as compensation for the use of its highways so long as such charge is a fair contribution to the cost of construction and maintenance of the roads and of the regulation of the traffic.

4. In imposing such charge on motor vehicles engaged exclusively in interstate commerce the state may graduate the charge in accordance with the size or weight of the vehicles used, so long as the charge is not discriminatory.

5. It is not a valid objection to such a law that the statute deals exclusively with those engaged in interstate commerce in the absence of any showing that vehicles used in intrastate commerce are given an advantage, as the state is not required to have the regulation of motor vehicles engaged in interstate commerce and the regulation of motor vehicles engaged in intrastate commerce in the same statute.

6. The fact that the fees and mileage tax collected under this statute are to be credited to the “Auto Transportation Fund” described in chapter 188 of the Session Laws of 1931 does not render the statute vulnerable to constitutional objections as such “fund” is used by the Railroad Commission of this state for the purpose of “supervision and regulation of the transportation of persons and property for compensation over any public highway by motor propelled vehicles,” and therefore the fee charged and tax imposed are used for the supervision of the highways of the state.

7. Chapter 162 of the Session Laws of 1933, which imposes a mileage charge upon trucks operating on the highways of this state solely in interstate commerce and which requires such truck to pay a mileage tax in accordance with the number of miles operated on the highways in this state, is not a burden upon nor an interference with interstate commerce, and does not violate sections 8, 9, and 10 of article 1 of the Constitution of the United States.

8. Such chapter 162 of the Session Laws of 1933 does not violate section 61 of the Constitution of this state prohibiting a bill to “embrace more than one subject, which shall be expressed in its title”; nor section 175 of the Constitution of this state which provides that “every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied”; nor section 13 of the Constitution which provides that “no person shall be deprived of * * * property without due process of law.”

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Proceedings by the State of North Dakota against Nels Goeson and Hollis Lind, doing business as the Dakota Transfer & Storage Company. From an adverse judgment, defendants appeal.

Affirmed.

Franklin J. Van Osdel, of Fargo, for appellants.

P. O. Sathre, Atty. Gen., and J. A. Heder, Asst. Atty. Gen., for the State.

BURR, Judge.

In an action brought by the state, under the provisions of chapter 162 of the Session Laws of 1933, to collect a mileage charge upon trucks of the defendants used solely in interstate commerce, the defendants answer alleging that such statute is unconstitutional, as violative of sections 8, 9, and 10 of Article 1 of the Constitution of the United States, and of sections 13, 61, and 175 of the Constitution of this state; that the “mile tax required to be paid is to be credited to the Auto Transportation Fund * * *; that no part of the * * * fund is used for the construction and maintenance of the highways of the State of North Dakota”; “that it imposes a confiscatory and discriminatory tax for the use of trucks operated in North Dakota highways in interstate commerce;” and “that the tax is not used for the purpose for which it was intended by the legislature.”

The state demurred to the answer, presumably on the ground that it does not state a defense, and the court sustained the demurrer. From the order and the judgment entered, the defendants appeal.

The complaint and the answer show that the defendants are doing business in the city of Minot in this state; that in 1934 they owned and operated a truck, “having an unloaded weight of more than six ton and less than seven ton and operated and used said truck in transporting goods, merchandise and property for hire in interstate commerce from points in the state of North Dakota and to points in the state of Minnesota and on return”; that the truck was used exclusively in interstate commerce; that the defendants had obtained a certificate of public convenience and necessity from the board of railroad commissioners in this state, permitting them to operate in interstate commerce; that they have paid all of the registration and license fees required by law except the mileage tax imposed by the statute.

Chapter 162 of the Session Laws of 1933 is entitled: “An Act to provide for the taxation of motor vehicles using the highways of the State of North Dakota for commercial purposes and engaged in transporting goods or merchandise for hire in interstate commerce.” By the terms of the statute the operator is required to pay a fee of $5 “for each such vehicle and in addition thereto truck mile tax as compensation for the use of the highways, which said tax shall be based upon the unloaded weight of the vehicle and the distance that such vehicle travels on the highways of this state [exceeding five miles]. The tax on each motor vehicle or combination of vehicles shall be ascertained by multiplying the number of miles traveled by each of such vehicles on the highways of this state by the rate per mile as provided herein.” Section 2 of the act. “The truck mile tax” for a truck “having an unloaded weight of 6 ton and not exceeding 7 ton” is 3 1/4 cents per mile. The owner is further required to pay to the registrar, on or about the 15th of each month, the truck mile tax due and payable for the preceding month. See section 3 of the act. Section 4 provides: “No tax shall be required from any truck, tractor, truck-tractor, semi-trailer or trailer when such vehicle engaged in interstate commerce does not come into the state of North Dakota a distance greater than five miles from the boundary of said state on any given trip, and does not travel on the highways of this state a distance of more than ten miles on said trip, nor shall any tax be required where said vehicle does not leave the incorporated limits of any city or cities while in the state of North Dakota within a zone circumscribed by a line running parallel to the corporate limits of any city, village or contiguous cities and villages and five miles distant therefrom.” Section 5 provides: “All funds collected under the provisions of this Act shall be paid into the ‘Auto Transportation Fund’ as provided for by Chapter 188, Session Laws 1931, and shall be expended as so provided.” There are other provisions not necessary to set forth.

[1] Such statute does not violate sections 8, 9, and 10 of article 1 of the Constitution of the United States. Under the provisions of such sections, the Congress has the power to regulate commerce among the several states; but the statute involved does not in any way attempt to regulate nor burden interstate commerce.

The several states of the Union are not merely glorified counties. While each is an integral part of the Union, it is also an independent entity except so far as limited by the Constitution of the United States.

[2][3] The maintenance and repair of roads are part of the functions of government, and generally the money expended for this purpose is obtained through taxation. Consequently, it is a state function, one of the rights of the state, to tax those who use the highways, even though they may be engaged solely in interstate commerce, so long as the tax is reasonable, is levied for the purpose of constructing, repairing, maintaining, and supervising the highways, and no unjust discrimination is made.

The highways belong to the state. It may make provision appropriate for securing the safety and convenience of the public in the use of them. Kane v. New Jersey, 242 U. S. 160, 37 S. Ct. 30, 31, 61 L. Ed. 222.

While it may not impose a tax on the property of those engaged in interstate commerce, yet the state may “impose even upon motor vehicles engaged exclusively in interstate commerce a charge, as compensation for the use of the public highways, which is a fair contribution to the cost of constructing and maintaining them and of regulating the traffic thereon.” Interstate Transit v. Lindsey, 283 U. S. 183, 51 S. Ct. 380, 381, 75 L. Ed. 953;Hendrick v. Maryland, 235 U. S. 610, 35 S. Ct. 140, 59 L. Ed. 385. See, also, Pierce Oil Corp. v. Hopkins et al., 264 U. S. 137, 44 S. Ct. 251, 68 L. Ed. 593, where levy for roads is extended to tax on sales of gasoline.

“The absence of Federal legislation upon the subject leaves the states free to prescribe uniform regulations reasonably necessary for public safety and order in respect to the operation upon their highways of motor vehicles moving in interstate commerce, and to that end they may require the registration of such vehicles and the licensing of their drivers, charging therefor reasonable fees” even if “graduated according to the horse power of their engines.”...