Tirrell v. Johnston

• Decision Date: 06 March 1934
• Citation: 171 A. 641
• Parties: TIRRELL v. JOHNSTON, Atty. Gen., et al.
• Court: New Hampshire Supreme Court

171 A. 641

TIRRELL

v. JOHNSTON, Atty. Gen., et al.

Supreme Court of New Hampshire. Hillsborough.

March 6, 1934.

Transferred from Superior Court, Hillsborough County; Burque, Judge.

Bill in equity by Nathan A. Tirrell against Francis W. Johnston, Attorney-General, and the State Treasurer, to enjoin defendants from prosecuting plaintiff for failure to pay gasoline road toll. Transferred on questions presented by pleadings.

Case discharged.

Bill in equity, brought against the Attorney General and the state treasurer, and asking that they be enjoined from prosecuting the plaintiff for failure to pay the charge known as the gasoline road toll.

The bill sets forth that the plaintiff is a United States rural mail carrier; that delivery of the mail is by means of an automobile furnished by the plaintiff at his own expense; and that he has a governmental allowance of 1 cent a mile for the use of his automobile.

The ground for refusing to pay the charge is an allegation that the plaintiff is an agency of the federal government, and that therefore the state cannot lay a charge of this character.

The defendants answered admitting the purpose to prosecute, and denying that the statute is unconstitutional.

The questions presented by the pleadings were transferred without ruling by Burque, J.

At the argument, the question was raised whether there is authority to enjoin the institution of criminal prosecutions. Thereupon the plaintiff was given leave to file a petition under the Declaratory Judgment Act (Laws 1929, c. 86), as an amendment to his bill.

Samuel A. Margolis, of Manchester, for plaintiff.

Francis W. Johnston, Atty. Gen., and H. Thornton Lorimer, Asst. Atty. Gen., for defendants.

PEASLEE, Chief Justice.

The procedural question raised by doubts as to the availability of the equitable remedy by injunction need not be considered. If that remedy is not available, the case is clearly one where proceedings under the Declaratory Judgment Act (Laws 1929, c. 86) may be taken. Burghess v. Attorney-General, [1911] 1 K. B. 410, quoted with approval in Faulkner v. Keene, 85 N. H. 147, 154, 155 A. 195.

It was agreed at the argument that there will be no occasion for the issuance of an injunction in any event. When the law is settled it will be obeyed. It is therefore immaterial whether the proper proceeding is an application for a restraining order or a petition for a declaratory judgment. A final interpretation of the law in either form of proceeding would be binding upon these parties.

Following the practice in this jurisdiction, we therefore proceed to a consideration of the merits of the controversy, without further attention to what are here deemed to be inconsequential matters of form.

The state's case is put upon two grounds:

I. That the charge is not a tax, but a payment required for the use of facilities which the state may furnish or not as it sees fit.

II. That, if it were to be treated as a tax, it is not laid upon an instrumentality of the federal government.

Upon both propositions, the state must rely upon the federal view of the law. It is now elementary that upon all questions touching federal power and federal exemptions from state interference the decisions of the federal Supreme Court control. Where there is such a decision of a question, directly in point in a litigated case, it is not the function of a state court to inquire into the nature or soundness of the reasoning by which the federal conclusion was supported. But, where the federal decisions are not clearly applicable to the case in hand, it becomes necessary for the state court, charged with the duty of attempting to solve the problem of federal law, to examine the ground work of the federal decisions which are thought to have value as indicating the probable federal position, if the problem in hand were before the federal court for decision. Campbell v.

U. S. Radiator Corporation, 86 N. H. ——, 167 A. 558, and cases cited.

In such a situation it is the duty of the state court not merely to consider the fact that certain reasons have been given in the federal decisions. In order to adequately appraise the probable future course of federal law, it is essential to inquire into the soundness of the reasoning used in earlier cases which bears to some degree upon the question in hand; for, if those reasons appear to be unsound or inadequate, these infirmities afford ground for an inference that the decisions based thereon will not be extended to cover new and distinguishable situations.

It is conceded by both parties to the present controversy that there is no federal authority directly in point. Each seeks to support his position by inferences drawn from the decided cases. It therefore becomes necessary to examine somewhat critically these sources of federal law.

I. The state's first position is that the charge here involved is not a tax, but, in substance, a recompense exacted for the use of the state's highways. This is the New Hampshire law. Pub. Laws, c. 104; Opinion of the Justices, 81 N. H. 552, 120 A. 629.

It is argued that the advice given to the House of Representatives in the foregoing opinion is unsound, because the Federal Highway Act provides that all roads aided by the general government shall be free from all tolls. U. S. Code title 23, § 9 (23 USCA § 9). The state having accepted the act (Laws 1917, c. 162; Pub. Laws c. 88) and received aid thereunder, it is said that the state cannot charge for the use of its roads.

One answer which has been given to the above proposition is that, as only a part of the roads in the state are federal aided, the state is free to act as to all the rest, and therefore may make a general charge for the promiscuous use of its roads, without offense to its federal obligation. Cunningham v. Potts (D. C.) 9 F.(2d) 469.

A more satisfactory refutation of the argument is found in the opinion of Mr. Justice Stone in Carley v. Snook, 281 U. S. 66, 73, 74, 50 S. Ct. 204, 74 L. Ed. 704, 68 A. L. R. 194. In that case the complaining party alleged that certain automobile registration fees were tolls charged for the use of the highways and therefore could not be collected because of the stipulation in the Federal Highway Act. Reliance was placed upon the earlier federal decision that "it is clearly within the discretion of the state to determine whether the compensation for the use of its highways by automobiles shall be determined by way of a fee, payable annually or semiannually, or by a toll based on mileage or otherwise." Kane v. New Jersey, 242 U. S. 160, 168, 37 S. Ct. 30, 32, 61 L. Ed. 222.

The court, however, found no difficulty in recognizing that a charge might be in the nature of a toll, and still not be a toll which was prohibited by the Federal Road Act. "The fact that they may have been held justified, in other connections, because of their similarity to 'tolls for the use of highways, affords no basis for saying that the present fees are prohibited tolls within the meaning of the Federal Highway Act."

The conclusion that the tolls referred to in the Federal Highway Act as not chargeable for the use of federal aided roads are only those which are such in the stricter sense of that term was justified upon convincing practical grounds. In speaking of the fees there charged it was said: "Such fees were a common form of state license tax before the Federal Highway Act was adopted in 1921. That act contemplated the continued maintenance by the states of state highways, constructed with federal aid, the expense of which must necessarily be defrayed from revenues derived from state taxation. It cannot be supposed that Congress intended to procure the abandonment by the states of this well-recognized type of taxation without more explicit language than that prohibiting tolls found in section 9."

The proposition that the charge here laid is a toll prohibited by the federal act is clearly negatived by the decision just quoted. While the precise line of demarcation is not there described, the plain inference seems to be that the only charges which are prohibited are "tolls in the commonly accepted sense of a proprietor's charge for the passage over a highway or bridge, exacted when and as the privilege of passage is exercised." Page 73 of 281 U. S., 50 S. Ct. 204, 207. The charge laid by the statute is not forbidden by this federal law.

As before stated, it is the local law that the charge under consideration is in substance one made for the use of our highways, and therefore does not come within our constitutional inhibition against certain forms of taxation. Opinion of the Justices, 81 N. H. 552, 120 A. 629. In so far as the issue of validity under the State Constitution is involved, the conclusion of the state court is final. State v. Lothrops-Farnham Company, 84 N. H. 322, 150 A. 551. There is no federal authority to review this feature of state decisions. 6 R.C. L 85, 86. This, however, does not dispose of the issue presented when the validity of a state law is challenged upon the ground that the law infringes upon, or impairs the exercise of, federal functions. When such questions arise, their final determination rests with the federal court.

In the examination of such state laws as relate to federal functions, the federal court, is not bound by state decisions as to what the nature of the provisions under consideration may be. As to what is required thereby in the concrete sense of acts to be done or abstained from, the state interpretation is followed. That is, it is for the state to say what its laws are. "The decision of the state court is controlling as to the meaning and extent of the statutory requirements." Hicklin v. Coney, 54 S. Ct. 142, 144, 78 L. Ed.

——, and cases cited. But as to their effect as bearing upon federal instrumentalities, the federal view, both of results and as to the nature of the requirements, prevails. Gregg Dyeing Co. v. Query, 286 U. S. 472, 52...