State v. Preston

• Decision Date: 25 April 1922
• Citation: 103 Or. 631,206 P. 304
• Parties: STATE v. PRESTON.
• Court: Oregon Supreme Court

206 P. 304

103 Or. 631

STATE v. PRESTON.

Supreme Court of Oregon

April 25, 1922

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

W. C Preston was convicted of driving and operating a motor vehicle without license plates, and he appeals. Affirmed.

Frank S. Grant, City Atty., and Willametta McElroy both of Portland, for appellant.

Samuel H. Pierce and George C. Graham. both of Portland (Stanley Myers, Dist. Atty., of Portland, on the brief), for the State.

RAND J.

The defendant was charged, tried, and convicted of the crime of driving and operating a motor vehicle, without proper license plates. At the time of his arrest he was an employee of the city of Portland. and was driving, on the public streets of that city, a Ford car, which belonged to the city of Portland, and which was being used by the city to convey persons inflicted with contagious diseases to a hospital, maintained by the city. The appellant contends that the exaction of the fees for licensing of motor vehicles prescribed by chapter 399, L. 1919, is a tax and not a license, and that all property, owned by municipalities in the state, which is used for a public purpose, is exempt from taxation, and therefore this conviction cannot be sustained, as defendant was convicted for driving a car which was not within the operation of the act.

From a consideration of chapter 399, L. 1919, it is clear that this law was primarily designed, not only to regulate the operation of motor vehicles upon the public roads, streets, and highways of the state, but also for the purpose of raising revenue for governmental purposes. That fact appears both from the title of the act and from the body of the law, where it provides that the fees imposed shall be in lieu of all other taxes and licenses except municipal license fees, and by the disposal which the statute directs shall be made of the fees so exacted.

Chapter 104, § 1, subd. 2, L. 1919, codified as section 4235, Or. L., reads as follows:

"All public or corporate property of the several counties, cities, villages, towns, school districts, irrigation districts and drainage districts in this state used or intended for corporate purposes, except lands belonging to such public corporations held under a contract for the purchase thereof," shall be exempt from taxation.

Subdivision 2, c. 104, L. 1919, so far as it relates to an automobile belonging to a city in this state, and used for governmental purposes, did not in any way affect the duty of the city to comply with the provisions of chapter 399, L. 1919, at the time of the defendant's arrest and conviction. That this was the intention of the Legislature in enacting chapter 399, L. 1919, plainly appears from the provisions of the act.

Section 43 of that chapter provides that--

"The purpose, object and intent of this act is to provide a comprehensive system for the regulation of all motor and other vehicles in this state, except that nothing herein contained shall be deemed to apply to the registration and licensing of United States government owned motor vehicles and to traction engines, farm tractors, road rollers, fire wagons, fire engines, invalid chairs and baby buggies."

By this section the Legislature expressly excluded from the operation of the act certain enumerated motor vehicles, of which a Ford car was not one. The automobile which the defendant was driving at the time of his arrest was not within the saving clause of the act. The maxim, "expressio unius est exclusio alterius"--the expression of one thing is the exclusion of another--applies. If the Legislature had intended that vehicles belonging to municipalities, other than fire wagons and fire engines, should not be affected by the statute, such vehicles would have been included within the exception clause of the statute. As this was not done, it is proof, not only of the fact that the Legislature was of the opinion that fire wagons and fire engines would have been controlled by the statute if the exception had not been made, but also of the fact that the Legislature intended that no other kind or class of motor vehicles belonging to a municipality, except the two kinds enumerated, should come within the exception of the statute.

When the Legislature declared what motor vehicles should not be affected by the act, those not within the exception were without it. Commonwealth v Summerville, 204 Pa. 300, 304, 54 A. 27; Brown v. Maryland, 12 Wheat. 419, 438, 6 L.Ed. 678; 2 Lewis' Suth. Stat. Const. § 351. Fire wagons and fire engines are owned and used exclusively by cities and towns while other motor vehicles are owned and used by private persons and by municipalities alike. This was within the knowledge of the Legislature at the time chapter 399, L. 1919, was enacted. It is a matter of common knowledge that fire...