State v. Jackman

• Decision Date: 30 October 1973
• Docket Number: No. S,S
• Citation: 211 N.W.2d 480,60 Wis.2d 700
• Parties: STATE of Wisconsin, Respondent, v. Willmarth L. JACKMAN, Appellant. tate 88.
• Court: Wisconsin Supreme Court

Page 480

211 N.W.2d 480

60 Wis.2d 700

STATE of Wisconsin, Respondent, v. Willmarth L. JACKMAN, Appellant.

No. State 88.

Supreme Court of Wisconsin.

Oct. 30, 1973.

W. L. Jackman, Madison, for appellant; Arnold J. Wightman, Madison, of counsel.

Robert E. Warren, Atty. Gen., John E. Kofron, Asst. Atty. Gen., Madison, for respondent.

HALLOWS, Chief Justice.

The first issue is whether the requirement of the registration and numbering of the boat and of the payment of a $3.25 fee is a valid exercise of the police power.

The statute, sec. 30.51(1), ¹ provides no person shall operate a motorboat or sailboat over 12 feet in length on the waters of this state unless it is covered by a valid certificate of number issued pursuant to the statute or is exempt from its numbering requirement. Section 30.52(3) ² requires the payment of $3.25 for the issuance of a certificate of a boat number. The Wisconsin statutes relating to the regulation of boating (secs. 30.50 to 30.80, inclusive) are traceable to the Federal Boating Act of 1958. ³ The federal act, sec. 527a and 527c, required the secretary of the department administering the Coast Guard to establish a numbering system for boats in the United States and to set standards for state numbering systems. The act in sec. 527(c) required that boat numbers be secured from the state of principal sue or from the federal numbering authority in the event the state of principal use had no approved numbering system. Section 527c(10) of the federal act provided that states might charge fees in connection with the issuance of certificates of numbers. In 1958 the Wisconsin legislature enacted an act entitled 'Regulation of Boating,' ch. 505, sec. 5, Laws of 1959, which created secs. 30.50 to 30.80, inclusive, Stats. The provisions of this act requiring the numbering of boats have been approved as meeting the requirements of the Federal Boating Act of 1958.

Both the federal and the state acts are related to boat safety. The legislative history of the federal law indicates it was 'to promote boating safety on the navigable waters of the United States, its Territories, and the District of Columbia.' See United States Congressional and Administrative News (1958) Vol. 3, p. 5228. In considering the regulatory program in Wisconsin, the Report of the Interim Boating Committee to the 1959 Wisconsin legislature stated at page v. in its Synopsis of Conclusions and Recommendations that Wisconsin should take advantage of the federal boating act, that the evidence did not warrant a statewide periodic boat inspection program to determine seaworthiness, but enforcement officers should be authorized to stop and check boats for compliance, that the state conservation department should be charged with the duty of conducting a comprehensive program of boating safety education, and that the boat numbering fees should be earmarked to finance the boat-numbering program, a program of state aids relative to local enforcement, and the boat safety and enforcement work of the conservation department. The interim boating committee had before it evidence that the registration and numbering of boats as a means of identifying them would aid in the recovery of stolen boats, in apprehending violators of the law, and in rescue operations by making possible a quick check with the owner of a capsized or drifting boat to see if anyone had been using it. See Report of the Interim Boating Committee, Findings and Recommendations, p. 11.

Jackman argues the registration and numbering system must be coupled with an inspection program so that the award of a number signifies the boat complies with safety standards. Lacking such an inspection, it is argued the numbering is purely for identification and bears no relationship to safety; we disagree. Identification without inspection bears sufficient relationship to safety in other respects to justify the exercise of the police power. Inspection prior to registration might be beneficial but it is not the only ground or a necessary ground to validate a registration system. Jackman relies on Brooklyn Center v. Rippen (1959), 255 Minn. 334, 96 N.W.2d 585, 588, which stated municipal control of licensing is not necessary to an efficient regulation of boating activities. This may be true, but the test is not whether the licensing is necessary to safety but whether registration of boats bears a reasonable relationship to safety. The test is whether the means chosen have a reasonable and rational relationship to the purpose or object of the enactment; if it has, and the object is a proper one, the exercise of the police power is valid. State ex rel. McGrael v. Phelps (1910), 144 Wis. 1, 128 N.W. 1041; Bisenius v. Karns (1969), 42 Wis.2d 42, 165 N.W.2d 377. Jackman does not question that public safety is a proper object of the police power; he does question, however, any valid relationship between registration and safety. W believe identifying a boat, like identifying an automobile or a motorcycle, bears a relationship to safety. Promoting safety is not limited to the prevention of accidents or the determination of a boat's seaworthiness but includes efforts to minimize the consequences of accidents; and since the system of numbering and registration of boats may aid in rescue operations, it bears in fact a reasonable relationship to safety.

We find no merit in the contention that the numbering system is invalid because it applies only to motorboats or sailboats in excess of 12 feet, with exceptions, while the safety regulations of the statutes apply to all boats. The Report of the Interim Boating Commission to the 1959 Wisconsin legislature explained that most of the safety problems which numbering is designed to solve are caused by motorboats rather than by rowboats and canoes. In exercising its police power, the state is not required to make the licensing of boats co-extensive with the safety regulations. A classification in police power means will be sustained if there is a reasonable and practical ground for the classification, even though some other classification might appear to be more in accord with general welfare. If the classification is reasonable and practical in relation to the objective, that is sufficient and doubts must be resolved in favor of the reasonableness of the classification. Mehlos v. City of Milwaukee (1914), 156 Wis. 591, 604, 146 N.W. 882; 16 Am.Jur.2d Constitutional Law, p. 583, sec. 297.

One of the main concerns of a Jackman is that the fee for numbering of boats is a tax, impost or duty within the meaning of Section 1, Article IX, of the Wisconsin Constitution. ⁴ The Staff Report of the Wisconsin Legislative Council to the Judiciary Committee on Navigable Waters SR--61--7 (1960), delineates the origin and history of this navigable-waters clause in our constitution. It is identical with Article IV of the Northwest Ordinance of 1787 and was contained in the federal enabling act of 1846 which enabled the Wisconsin territory to organize as a state. The provision in the Northwest Ordinance respecting the nature of navigable waters and their freedom from tax, impost or duty was one of the conditions under which Virginia ceded the Northwest Territory to the confederation in 1784. See Muench v. Public Service Comm. (1952), 261 Wis. 492, 53 N.W.2d 514, 55 N.W.2d 40: Kanneberg, 'Wisconsin Law of Waters,' 1946 Wis.L.Rev. 349. In 1773, the problem of the freedom of navigation on the principal western waterways was a significant matter of public policy. Spain owned the mouth of the Mississippi River, which she closed to American shipping to end free American navigation on the Mississippi River. Waterways and connecting lands or 'carrying places' between navigable waterways were important for the transporation between the Mississippi River and the Atlantic Ocean as an alternative route and a bypass to the Mississippi. The development of the midwest depended upon the freedom of navigating the inland rivers and waterways. When Congress had the sale of 1,500,000 acres of land along the Ohio and Muskingum rivers to the Ohio Company of Associates under consideration to raise money to pay war debts, it was thought necessary to declare as public policy the freedom of the inland waterways and this declaration appeared in the final draft of the Northwest Ordinance of 1787.

The issue here is the meaning of the words 'forever free . . . without any tax, impost or duty.' In respect to tax, impost or duty, it is generally recognized that charges exacted in the exercise of the police power are not taxes and are not subject to constitutional limitations which apply to the exercise of the power to tax. Cooley, Taxation (4th ed.), Vol. 1, p. 94, sec. 26: Vol. 4, pp. 3509--3516, secs. 1784, 1786; Morrill v. State (1875), 38 Wis. 428, 20 Am.Rep. 12. This court has made a distinction between taxes and fees. A tax is one whose primary purpose is to obtain revenue, while a license fee is one made primarily for regulation and whatever fee is provided is to cover the cost and the expense of supervision or regulation. State ex rel. Attorney General v. Wisconsin Constructors, Inc. (1936), 222 Wis. 279, 268 N.W. 238; Fitch v. Wisconsin Tax Comm. (1930), 201 Wis. 383, 230 N.W. 37. The words 'tax,' 'duty' and 'impost', as used in the Wisconsin Constitution, are used in a narrow sense of direct charges on transportation for the use of the waterway. The navigable waters could not be converted from common highways into 'toll roads' by the states. The history of the origin of the language used in the grant of the state of Virginia to the United States and included in the Northwest Territory supports this view. The commercial use of the internal waterways of Wisconsin was foremost in the minds of the territorial citizens and the delegates at the Constitutional Conventions of 1846 and 1848 and they included the navigable water clause in our constitution. Wisconsin is the only state of...