Turner v. State
| Decision Date | 09 March 1933 |
| Docket Number | 5 Div. 133. |
| Citation | 146 So. 601,226 Ala. 269 |
| Parties | TURNER v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Elmore County; F. Loyd Tate, Judge.
Action to recover license by the State against A. E. Turner. From a judgment for plaintiff, defendant appeals.
Transferred from Court of Appeals.
Affirmed.
Holley Milner & Holley, of Wetumpka, for appellant.
Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.
Defendant resists this civil action by the state to recover of him a chauffeur's license upon two grounds. The first concerns the work in which he is engaged, driving a public school bus in Elmore county. Defendant owns and operates the bus under a contract with the county board of education, and it is argued that as such board is an independent agency of the state ( Turk v. County Board of Education, 222 Ala. 177, 131 So. 436), the defendant is performing a governmental function, and therefore not subject to pay a license therefor. Much reliance is had by counsel upon Johnson v Maryland, 254 U.S. 51, 41 S.Ct. 16, 65 L.Ed. 126, where it was held that a state law requiring under penalty a license for those who operate motortrucks on highways cannot constitutionally apply to an employee of the Post Office Department while engaged in driving a government motortruck over a post road in the performance of his official duty.
But the underlying principle of that case was the inability of the state by taxation to interfere with or interrupt the acts of the general government, the court stating there was an "entire absence of power on the part of the state to touch, in that way at least, the instrumentalities of the United States." The analogy therefore is here lacking, and we do not consider that authority as lending support to defendant's view.
And, indeed, as we read defendant's brief, it is not contended the state was without power to impose the license in the instant case, but it is insisted the imposition of such license was not the legislative intent. But we find nothing in the statute to indicate such exemption to this defendant. In section 9 of the act imposing this license (General Acts, 1923, pp. 284, 285), there is contained a definition of "chauffeur" as follows:
Defendant, under the facts as here agreed upon, comes within the general definition above noted, but is clearly without the saving clause. The maxim-the expression of one thing is the exclusion of another-would seem to have application.
A very similar question was so considered in State v. Preston, 103 Or. 631, 206 P. 304, 23 A. L. R. 414, and we think correctly so. But, the maxim aside, we do not find any sound reasoning upon which such exemption could be based.
Defendant was not an officer of the state or any department thereof. He is a contractor only, and public office is not so created. Harrington v. State, 200 Ala. 480, 76 So. 422. As a private individual, he uses his own vehicle and operates the same on the public highway for compensation. The compensation is by contract with the county board, but this is a mere incident to the work, so far as the question of license here involved is concerned. The defendant is in no manner an officer or "an arm of the State," but a private individual using his own vehicle on the public highway for profit, and comes directly within the influence of the statute above noted.
This inquiry has on several occasions been presented to the Attorney General's office, and numerous opinions there rendered to this same effect. Opinions Attorney General, 1928-30, p. 705, 1920-22, p. 33, 1924-26, p. 34, 1926-28, p. 115.
The second question argued relates to the remedy. The license tax is specific and...
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