State v. Moore
| Decision Date | 21 June 1985 |
| Docket Number | No. 57051,57051 |
| Citation | 237 Kan. 523,701 P.2d 684 |
| Parties | STATE of Kansas, Appellee, v. Roger A. MOORE, Appellant, and STATE of Kansas, Appellee, v. Charles H. POWERS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Under the Kansas statutes set forth in the opinion, designated agents or employees of the Kansas Department of Revenue have the authority to stop motor carriers or trucks for the purpose of conducting spot checks to determine compliance with statutory vehicle weight limitations.
2. Such inspections do not violate either the Fourth Amendment to the United States Constitution or Section 15 of the Bill of Rights of the Kansas Constitution.
3. The exemption of government owned vehicles from the weight limitations of K.S.A.1984 Supp. 8-1908 does not constitute an invidious discrimination in violation of equal protection of the laws.
Dwight J. Parscale, Topeka, argued the cause and was on the brief for appellants.
Arthur R. Weiss, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on the brief for appellee.
This is a direct appeal by two defendants who were convicted of operating an overweight motor vehicle in violation of K.S.A.1984 Supp. 8-1908. Each appeal has been submitted to this court on an agreed statement of facts which the trial court approved. The agreed factual statement, in substance, is as follows: Roger A. Moore and Charles H. Powers are drivers of trash hauling trucks for Topeka Waste Systems. On October 13, 1983, Moore was issued an overweight ticket pursuant to K.S.A.1984 Supp. 8-1908 on U.S. Highway 75, mile post 167, which is located just south of the entrance to the Topeka Waste Systems landfill in Shawnee County. Moore's truck was weighed on portable scales by an agent of the Department of Revenue; the scales reflected that Moore's truck was 1800 pounds overweight on the second axle. On October 27, 1983, Charles Powers was issued an overweight ticket pursuant to K.S.A.1984 Supp. 8-1908 at the same location. Powers's truck was also weighed on portable scales by an agent of the Department of Revenue and found to be 3,000 pounds overweight.
At the trial, the evidence was uncontested that the Department of Revenue had established its temporary weighing scales outside the landfill and was requiring all private trash haulers to pull in and have their trucks weighed, some as many as three times in a day. In addition, certain trucks belonging to the Shawnee County Refuse Department were also pulled over and weighed and then allowed to proceed, even though some were overweight, because they were exempt under the statute as vehicles owned by a political subdivision. It was further uncontested that, as a result of the exemption from weight restrictions under K.S.A. 8-1911, the Shawnee County Refuse Department had started using a much larger truck having a capacity of 33 cubic yards for picking up and hauling trash. The use of larger trucks gives the Shawnee County Refuse Department a substantially larger competitive edge in the area of costs per pick-up, because they do not have to make as many trips to the landfill as the private haulers.
At the trial, it was further agreed that all garbage trucks were pulled over and that no officers or agents had followed any of the trucks that were ticketed or stopped along their routes, nor did any of the officers or agents observe any of the loads prior to their being stopped at the temporary weigh station located south of the Topeka landfill. The parties agreed that the overweight tickets issued were not always issued on the first or even second trip through the scales when the trucks were not overweight but on a later trip when the driver actually went through thinking that, because he did not have a full load, he would not be overweight. Following the filing of the charges, the defendants entered pleas of not guilty in the two criminal cases. A joint trial was conducted by an assigned district magistrate judge, who found both parties to be guilty but imposed no fines when he was informed that the decision was to be appealed. The case was then presented on appeal before Judge E. Newton Vickers where each conviction was affirmed and fines were assessed. The defendants jointly appealed their convictions to this court.
At the trial of the cases, each of the defendants raised two issues:
(1) Whether the agents of the Department of Revenue had probable cause, as required by K.S.A. 8-1910, to require the two trash trucks to stop and submit to a weighing on the scales which were provided.
(2) Whether the exemption of county owned trash trucks from the weight requirement of K.S.A.1984 Supp. 8-1908 constituted an unreasonable and discriminatory classification in violation of the equal protection clauses of the United States and Kansas Constitutions.
The district court rejected both of these contentions and found each of the defendants guilty. The same issues are raised on the appeal.
The first issue to be determined is whether the Department of Revenue agent had the right to set up a temporary scales position outside the landfill and to stop the trash trucks and require them to be weighed. Before considering the facts of this case, it would be helpful at the outset to consider the various Kansas statutes which are involved. K.S.A.1984 Supp. 8-1908 provides for gross weight restrictions on the wheels and axles of motor vehicles operating on the highways of the state of Kansas. The Kansas statutes are based upon certain sections in Chapter 14 of the Uniform Vehicle Code as adopted by the National Committee on Uniform Traffic Laws and Ordinances. The Uniform Vehicle code was designed and advanced as a comprehensive guide or standard for state motor vehicle laws.
K.S.A. 8-1901 prescribes certain criminal penalties for violation of any of the restrictions on size and weight of motor vehicles contained in Article 19 of Chapter 8 of the Kansas Statutes Annotated. K.S.A.1984 Supp. 8-1902, K.S.A. 8-1903, K.S.A.1984 Supp. 8-1904, and K.S.A. 8-1905 establish limitations for the width, height, and length of motor vehicles and loads placed thereon. K.S.A. 8-1907 covers the subject of towing vehicles.
In this case the defendants were charged with the violation of K.S.A.1984 Supp. 8-1908 which restricts the gross weight on wheels and axles. K.S.A. 8-1911 grants certain exemptions to the size and weight requirements and provides in part as follows:
"(a) The secretary of transportation with respect to highways under the secretary's jurisdiction and local authorities with respect to highways under their jurisdiction may, in their discretion, upon application in writing and good cause being shown therefor, issue a special permit in writing authorizing the applicant to operate or move a vehicle or combination of vehicles of a size or weight of vehicle or load exceeding the maximum specified in this act or otherwise not in conformity with the provisions of this act upon any highway under the jurisdiction of the party granting such permit and for the maintenance of which said party is responsible: Provided, No permit shall be required to authorize the moving or operating upon any highway of farm tractors, combines, fertilizer dispensing equipment or other farm machinery, or machinery being transported to be used for terracing or soil or water conservation work upon farms, or vehicles owned by counties, cities and other political subdivisions of the state, unless such moving or operating occurs at any time from a half hour after sunset to a half hour before sunrise: Provided, The equipment referred to in the preceding proviso shall not be permitted to travel on interstate highways ...." (Emphasis supplied.)
It should be noted that the statute quoted above as it existed in October of 1983, when these criminal cases arose, provided that vehicles owned by counties, cities, and other political subdivisions of the state were not required to obtain a special permit or comply with the gross weight requirements except after hours of darkness, with a further limitation that such vehicles were not permitted to travel on interstate highways.
In 1984, K.S.A. 8-1911 was amended to provide specifically that any permit authorized under the section may be for a single trip on a highway or route or for continuous operation on a highway or route. We view this amendment as a clarification that special permits may be issued not only for a single trip but for continuous operation. The obvious effect of K.S.A. 8-1911 is to exempt vehicles owned by political subdivisions from the size and weight requirements of K.S.A.1984 Supp. 8-1908.
The enforcement of vehicle weight laws is specifically covered in K.S.A. 8-1910, which authorizes any police officer or properly designated Department of Revenue agent or employee having reason to believe that the gross weight of a vehicle is unlawful to require the driver to stop and submit to a weighing. The defendants, in support of their first point, rely exclusively on the provisions of K.S.A. 8-1910(a) which require a police officer or agent of the Department of Revenue to have reason to believe that the gross weight of a vehicle is unlawful before having authority to have a driver stop and submit to a weighing of the vehicle. It should be noted, however, that K.S.A. 8-1910 is not the only statute pertaining to the enforcement of the various statutes concerning motor vehicles. In this regard, K.S.A. 66-1318 gives the Secretary of Revenue the authority to establish motor carrier inspection stations throughout the state for the purpose of enforcing the laws relating to the size, weight, and load of motor vehicles.
K.S.A. 66-1319 provides that such agents or employees of the Department of Revenue as shall be designated by the Secretary of Revenue are vested with the power and authority of law enforcement officers in the execution of...
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