Smallwood v. Jeter

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This appeal is from a judgment of the district court of Ada county, rendered upon sustaining a general demurrer to plaintiff's complaint in an action brought against the commissioner of law enforcement to enjoin the enforcement of Sess. Laws 1925, c. 197.

Section 1 of the act provides:

"The term 'auto transportation company' as used in this Act means every person, copartnership, corporation or association, its or their heirs and legal representatives or assigns, owning, controlling, operating or managing any motor propelled vehicle for the transportation of persons and/or property for compensation over any public highway in this State:Provided, however, That it shall not include school busses, or other motor vehicles, used exclusively for the transportation of children to and from school, nor motor propelled cars or engines operated on the tracks of steam or electric railroads, nor companies operating exclusively within the corporate limits of incorporated cities."

Section 3 provides:

"Every auto transportation company, within the meaning of this Act, shall, before engaging in such business, procure liability and property damage insurance from an insurer licensed to furnish such insurance in the State of Idaho, or a surety bond of a surety company authorized to write surety bonds in said State, on each motor propelled vehicle used in transporting persons and/or property, providing for compensation in the amount of not to exceed $5,000 for any recovery for personal injury suffered by one person, not less than $10,000 for recovery for personal injury suffered by all persons injured while being transported in each such vehicle equipped to carry not less than twelve passengers, not less than $15,000 for personal injury suffered by all persons injured while being transported in each such vehicle equipped to carry not less than twenty passengers, and not less than $20,000 for recovery for personal injury suffered by all persons injured while being transported in each such vehicle equipped to carry more than twenty passengers; and also in an amount not to exceed $1,000 for any recovery for damage to property of any person other than the assured. . . . ."

Section 4 provides for the issuance of a permit "to engage in the transportation of persons and/or property." Section 5 requires a sworn, monthly statement showing "the gross earnings for all freight and passengers transported," and the payment of "``a fee of five per cent of all such gross earnings" to be paid into the state highway fund, and "appropriated for the purpose of paying for the maintenance of state highways." Section 7 makes a violation of the act a misdemeanor.

The plaintiff pleads himself within the definition of "an auto transportation company," and alleges that he is now engaged in the operation of a motor vehicle of 11 passengers' capacity between the cities of Boise and Emmett; that he contemplates operating other vehicles equipped to carry more than 12 passengers; that there are many motor vehicles owned and operated by private individuals, some carrying more than 12 passengers and some less, operating over the public highways outside cities for the transportation of children to and from both private and public schools, for which compensation is paid either by parents or the school district; that there are also many privately owned motor vehicles rented for compensation without drivers, and driven by the renters over public highways; that many motor-trucks are operated over public highways for compensation pursuant to private contracts between the operators and owners of freight, and many such trucks operated over public highways for transportation and delivery of their own property for commercial purposes by stores, manufacturers, farmers, lumbermen, miners and others; that the surety companies of the state refuse to write bonds under the act, as the liability cannot be determined, and that the premium charged by insurance companies, which is set out in detail, is prohibitive; that if "gross earnings" mean the entire receipts without deduction for expenses, then five per cent of plaintiff's gross earnings is an amount in excess of his net earnings, and that such is the fact with respect to transportation companies in general throughout the state, and that the fee is therefore unreasonable, confiscatory and discriminatory, and will prohibit the transaction of business of an auto transportation company within the meaning of said law; that the amount of such fee is greatly in excess of the cost of regulation provided by said law, and in excess of the value of any right or privilege conferred thereby; and that the defendant has adopted a form for insurance and one for bonds, copies of which are attached to the complaint as exhibits.

There is no allegation as to any carrier being engaged in transportation both within and without incorporated cities.

Plaintiff contends that the act violates Idaho Const., art. 3, sec. 16, in that it embraces more than one subject, to wit, insurance and registration, raising of revenue and making an appropriation, and that the subject of the act is not expressed in the title; and that the insurance feature of the act is void because unintelligible. Plaintiff argues also that the act violates the fourteenth amendment to the federal constitution because it deprives him of property without due process of law, and the equal protection of the laws, and Idaho Const., art. 1, secs. 1 and 13, because it deprives him of the inalienable right of "acquiring, possessing and protecting property," and deprives him of "property without due process of law"; and that "``The whole law is discriminatory because: (a) It exempts private schools, (b) it exempts private carriers for compensation for public schools, (c) it exempts carriers who carry school children exclusively, but makes no exemption for school children carried in plaintiff's stages, (d) it exempts commercial carriage such as delivery vehicles for wholesale houses or logging trucks carrying their owner's property, (e) there is no tax on baggage, express or mail, (f) there is no insurance for cars of less than twelve passengers, (g) some cars have a $5,000 limit per passenger and others have none, (h) the total coverage for any number of passengers more than two and less than twelve is $10,000 in an eleven-passenger car and much more in a larger car, (i) there is no insurance for exactly twenty-passenger cars, (j) it places a compensation liability on those within it and the liability of all other carriers is simply that for negligence."

Plaintiff further contends that the insurance provisions are unconstitutional because unreasonable in amount and on account of the limitation of sureties to surety companies; that the whole act is unreasonable in that it is not limited to carriage of freight or passengers as a business, nor operations of regular runs, nor even to operating for hire, but applies to all who carry any freight or any passenger for compensation; and that the five per cent tax is double taxation, in violation of Idaho Const., art. 7, sec. 5, in that he has already paid an automobile license fee for the same purpose. A still further contention is made that the levy of a five per cent tax is in violation of acts of Congress forbidding collection of tolls on federal aid roads.

Counsel concede that under the police power, the state may "``enforce a proper act" requiring registration and insurance, and may, under the taxing power, charge a proper tax for the use of the highways, arguing that "The objections are not to the justness or propriety of such legislation in principle, but to the wholly unreasonable and oppressive features of the particular Act, and the principal grounds on which relief is urged are that the Act is unconstitutional, and in any event is hopelessly unintelligible and meaningless."

A doubt as to the constitutionality of an act should be resolved in its favor, and to declare it unconstitutional, it must clearly appear to be so. (Ingard v. Barker, 27 Idaho 124,147 P. 293; 25 Rawle C. L., p. 1000, sec. 243.) It is the duty of the court to adopt such construction as will sustain the statute, if its language will permit. Where an act is fairly susceptible of two constructions, one of which will uphold its validity, while the other will render it unconstitutional, the former should be adopted. (25 Rawle C. L., p. 1000, sec. 243.)

The act is not in contravention of Idaho Const., art. 3, sec. 16. It does not embrace more than one subject and matters properly connected therewith, and that subject is expressed in the title, "To Regulate Auto Transportation Companies." The requirements that such companies shall register with the department of law enforcement, and file liability and property damage insurance policies or surety bonds; that permits shall be issued to such companies; that they shall make a monthly report and pay a five per cent fee upon their gross earnings; and that such fees be paid into the highway fund; with the other incidental provisions for the enforcement of the act, and making a violation of it a misdemeanor, are all matters properly connected with the regulation of auto transportation companies. (Berry on Automobiles, 4th ed., p. 108, sec. 113; Boise City v. Baxter, 41 Idaho 368, 238 P. 1029; In reKessler, 26 Idaho 764, Ann. Cas. 1917A, 228, 146 P. 113, L.R.A. 1915D, 322; Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 101 Am. St. 201, 68 P. 295; Jasnowski v. City of Detroit,191 Mich. 287, 157 N.W. 891.)

Section 3 of the act provides that every "auto transportation company" shall, "before engaging in such business," procure liability and property damage insurance; and section 5 that such company shall file a monthly report, and pay a fee of five per cent of its gross earnings for freight and passengers transported. A reasonable construction of this act arrives at the legislative intent to regulate auto transportation companies which "engage in business" as such.

"Business" is defined (Webster's New International Dictionary, G. C. Merriam Co., 1921) as "That which busies, or engages time, attention, or labor, as a principal serious concern or interest. Specif.: (a) Constant employment; regular occupation; work, as, the business of life; business before pleasure. (b) Any particular occupation or employment habitually engaged in, esp. for livelihood or gain."

See, also, 1 Words Phrases, 915.

To "engage" is defined (Webster's New International Dictionary, G. C. Merriam Co., 1921) as "To embark in a business; to take a part; to employ or involve one's self; to devote attention and effort; . . . ."

See, also, 2 Words Phrases (2d Series), 273

"The definition of 'business' by the lexicographers is sufficiently broad and comprehensive to embrace every employment or occupation, and all matters that engage a person's attention or require his care, without the least regard to trade or business. The meaning of the legislators as expressed in the statutes is not as extensive. 'Business,' in a legislative sense, is that which occupies the time, attention, and labor of men for purposes of livelihood or for profit; a calling for the purpose of a livelihood. We will follow the latter meaning in interpreting the statutes relating to license tax." (State v. Boston Club, 45 La. Ann. 585, 12 So. 895, 20 L.R.A. 185.)

"The terms business and employment as here used are synonymous, signifying that which occupies the time, attention and labor of men for the purpose of a livelihood or profit. Business, is here used in the sense of a calling for the purpose of a livelihood." (Moore v. State, 16 Ala. 411.)

Plaintiff pleads on behalf of himself, without doubt engaged in the business, and of others similarly situated. Their concern for one who may carry an occasional person or item of freight as subject to the act is not well founded in the intent of the act. It can be no concern of theirs that another, by an apparent accidental or incidental carrying, may or may not subject himself to its requirements. It is the business that is being licensed, and is being regulated by the bond provisions. It is only on those "doing business" that the legislature has a right to impose a license tax. (In re Gale, 14 Idaho 761,95 P. 679.)

Plaintiff contends that the insurance feature of the act is void because unintelligible, and that it "cannot be corrected by the addition or omission of words." We are entitled to and must look to the intention of the legislature as gathered from the whole act, and when a literal reading of a provision will work an unreasonable or absurd result, if a reasonable intent of the legislature can be arrived at, the court should so construe the act as to arrive at such intention rather than an absurdity. To accomplish this purpose, words may be changed, not to legislate, but to arrive at what the legislature intended to enact. "Especially will this be done when it is necessary to prevent a law from becoming a nullity." (25 Rawle C. L., pp. 975, 976, sec. 225.)

The title and body of chapter 197 include "all auto transportation companies." Section 3 requires "every auto transportation company, . . . . before engaging in such business," to procure insurance or bond. A literal reading of the act would exempt all vehicles equipped to transport less than 12 passengers, surely not within the intent or purpose of the legislature, and would make a class by itself of vehicles equipped to carry exactly 20 passengers, because of the provision for a requirement of $15,000 on such vehicle equipped to carry "not less than twenty passengers" followed by an increased requirement as to vehicles equipped to carry "more than twenty passengers." Giving the whole act its reasonable construction, and changing the phrase "not less than twelve passengers" to read "not more than twelve passengers," and the phrase "not less than twenty passengers" to read "not more than twenty passengers," arrives at a graduated limit of insurance or bond to be carried on each class of vehicles, which is sensible and appears to have been the intention of the legislature.

The act fixes a maximum of $5,000 for any recovery for personal injury suffered by one person, regardless of the carrying capacity of the vehicle. The insurance or bond feature for injury to persons is confined to injury suffered "while being transported in each such vehicle," while the bond for injury to property covers "any recovery for damage to property of any person other than the assured." Section 4 provides for the issuance of a permit to engage in the "transportation of persons and/or property." Thus, a carrier of freight to the exclusion of passengers may be issued a permit to engage in transportation of property only, and in such event would need but a bond of $1,000, conditioned for the payment of "any recovery for damage to property of any person other than the assured," while a "company" transporting passengers would have to give both. The requirement that the insurance or bond shall be written "providing for compensation" can have reference only to "any recovery for personal injury" or "for damage to property." This does not enlarge the liability of the "company" beyond that which it would be in any event, and contemplates only the recovery for injury or damage suffered for which the "``company" would be liable in the absence of the act.

We must presume that the legislature intended to enact those features of the act which it had the power to enact. It must, therefore, be construed as a regulation of those classes or kinds of transportation on which the legislature had constitutional authority to impose such regulations. If the act can be reasonably so construed as to exclude an intention to accomplish that which the legislature had no power to accomplish, and let the act stand as a whole, this must be the intention presumed to have controlled the legislative body.

" . . . . The authorities, both elementary and judicial, recognize two kinds or classes of carriers, namely, private carriers and common carriers." (10 C. J., p. 37, sec. 1.)

" . . . . Considerations of public policy have led to the recognition by the courts, from an early period in the history of the common law, of rules respecting the duty of the common carrier as to serving the public, and as to liability for goods intrusted to its care which do not apply to private carriers of goods . . . . " (10 C. J., p. 38, sec. 2.)

"It is a question of law for the court to determine what constitutes a common carrier; but it is a question of fact whether one charged as a common carrier is within that definition and is carrying on its business in that capacity." (10 C. J., p. 40, sec. 9.)

The legislature cannot by legislative fiat convert property used exclusively in the business of a private carrier into a public utility, or make the owner a public carrier. (Michigan Public Utilities Com. v. Duke, 266 U.S. 570, 36 A.L.R. 1105, 45 Sup. Ct. 191, 69 L. ed. 445.) The bonding feature is entirely a police regulation. Imposing the obligation of furnishing an indemnity bond for damage to the property carried has, so far as a private carrier is concerned, no relation to public safety or order in the use of motor vehicles upon the highways, or to collection of compensation for the use of the highways. (Michigan Public Utilities Com. v. Duke, supra.) As the legislature has by this act made the giving of a bond necessary to the business regulated, we must presume that it was attempting to regulate only such business as to which it could so require a bond. As the legislature is regulating an automobile transportation company which engages in business for compensation, and seeks to impose upon such transportation company a regulation requiring the giving of a bond conditioned for payment of any recovery by a passenger or a shipper of freight which regulation must find its authority in the police power and which as we have seen cannot be rightly imposed under the police power upon a private carrier, and, as a part of the same act and upon a theory of regulation of the same class and kind of carriers, imposes a license tax upon the business sought to be regulated, we must presume that it was attempting to impose such tax as a part of the regulation, and only upon the same class of carrier to which the bond provision could be made applicable. The act must, therefore, be construed as not applicable to private carriers, but as regulating those who are in their nature common carriers, those who hold themselves out to the public as ready and willing to carry passengers who present themselves, or freight presented. Thus, the act is not an imposition of a license tax upon one carrying property in the capacity of a private carrier, not holding himself out to the public as a common carrier.

It would serve no useful purpose to discuss at length the power of the legislature to limit the carrier to furnishing bonds of surety or insurance companies only. Modern experience has brought into existence the surety and bonding companies for almost unlimited purposes. The results of loss to insured persons through other than surety bonds, and the power of the state to control, and the regulations adopted for the purpose of control of, bonding and insurance companies, with the resulting security to the insured, are persuasive reasons supporting the wisdom of the legislature, if it sees fit, to require that a bond be given by such insurance or bonding company. The power to require a bond necessarily implies the power to establish the qualifications of the bondsman. The requirement violates no constitutional right of plaintiff.

We are content to rest our decision as to the propriety of requiring a bond upon the reasoning of such cases as West v. City of Asbury Park, 89 N.J.L. 402, 99 A. 190, andPeople v. Martin, 203 A.D. 423, 197 N.Y. Supp. 28, although those cases involved operations within corporate limits, and, as to the right to demand a surety or insurance company as surety, upon the reasoning of such as Hadfield v.Lundin, 98 Wash. 657, Ann. Cas. 1918C, 942, 168 P. 516, L.R.A. 1918B, 909; State v. Seattle Taxicab T. Co., 90 Wash. 416,156 P. 837, and Ex parte Cardinal, 170 Cal. 519,150 P. 348, L.R.A. 1915F, 850. The wisdom of requiring a bond from those who would engage in auto transportation is a matter in the discretion of the legislature, and, unless wholly unreasonable in amount, or confiscatory and prohibitive of a business which may not be prohibited, the amount is likewise discretionary.

The cost of this bonding provision is not alone sufficient argument to invalidate the act, nor its cumulative effect, when one carrier may operate several vehicles. A limit of $5,000 liability upon a carrier for the injury of one person, and a $10,000 maximum liability as to a vehicle of not more than 12 passengers' capacity, cannot be said to be unreasonable when applied to one vehicle. The fact that a person operates more than one vehicle contributes only in increasing the personal security of that one individual in proportion to the volume of business in transportation. Plaintiff's contention that the five per cent tax is prohibitive of business is not sufficiently convincing to afford him relief. Plaintiff complains "that the amount of such fee is greatly in excess of the cost of regulation provided by said law, and in excess of the value of any right or privilege conferred thereby." The legislature has the right to impose a business tax for revenue above the cost of regulation. If plaintiff means that the tax is in excess of the value of the use, or privilege of the use, of the public highways as a place to transact his business, he has pleaded no facts as to the amount or value of such use or privilege, and the allegation is a mere conclusion of law not admitted by the demurrer; and plaintiff cannot be permitted to impose his judgment against that of the legislature as to the value of the use or privilege of such use.

Auto transportation companies are not regulated in their charges by the Public Utilities Commission or any legislative enactment fixing such charges. A charge of five per cent of the gross earnings does not appear so exorbitant or unreasonable as to make it unconstitutional. There is nothing to prevent such carriers increasing their charges to an amount sufficient in addition to their present contemplated gross earnings to cover the amount of this tax. The fact that an auto business will not pay for operation and protection of the passengers is no argument for its conduct without such protection; or, that a business will not pay a license tax which the legislature has the power to exact, and leave a margin of profit, is no just cause for foregoing the tax. The levy of a license tax on the basis of a percentage of the gross earnings may be a fair method of arriving at the proportion of the maintenance of the public highways used which should be borne by the licensee. (Kane v. New Jersey, 242 U.S. 160, 37 Sup. Ct. 30,61 L. ed. 222.)

Another answer to the foregoing contentions is that the use of public highways may, so far as private use is concerned, be regulated, but their use for carrying on the business of a common carrier may be prohibited. It cannot be doubted that the legislature may refuse to build a road, or, having built one, may refuse to appropriate for its maintenance. Surely, it must, on the same principle, be conceded that, having built such a road, the legislature may prohibit its use for the conduct of business of a common carrier of passengers or freight. Thus, a regulation may be so imposed upon business conducted by one as a common carrier as to amount to prohibition. The wisdom of such legislation is with the legislature, and not with the court. Granted the power to prohibit the use of public highways for the purpose of one engaging in business thereon, the question of the reasonableness of restrictions placed upon the use is a matter for the legislature and not for the court. (Hadfield v. Lundin, supra; Le Blanc v. City of New Orleans,138 La. 243, 70 So. 212.)

The fact that the requirements may prevent some from operating is not ground for declaring the act unconstitutional. Almost any regulation might do that. The mere fact that in some cases the act may work a hardship is not ground for declaring it unconstitutional, unless it is so unreasonable as to be confiscatory and oppressive in its general operation upon a business which may not be prohibited. (Ohio Tax Cases,232 U.S. 576, 34 Sup. Ct. 372, 58 L. ed. 737.)

The classification of auto transportation companies so as to include those who use the public highways for the transportation of passengers or freight for hire as a business, is not unreasonable, and the fact that others may make use of the same highway for the transportation of their own goods in their own privately owned vehicles, without being subject to the act, does not render the classification arbitrary or unreasonable. (Packard v. Banton, 264 U.S. 140,44 Sup. Ct. 257, 68 L. ed. 596.) If one class of use, by private carriers, can be regulated, and the other, by common carriers as a business, may be prohibited or regulated to the extent of practical prohibition, the latter cannot complain of such prohibition, as class legislation. The distinction between private use and public business use, and the right to regulate the one and prohibit the other, are sufficient on which to base the classification.

The exemption of vehicles used exclusively for transportation of school children is not unreasonable. Whether this transportation is paid for by the district or by the parents, the legislative intent to exempt such transportation from the bonding or fee provision of the act is justified by the consideration that, if included, this charge would ultimately increase the cost of education, a matter of public interest. The exemption is in accord with the spirit of other exemptions from taxes, granted to schools under the general laws. (C. S., sec. 3099, as amended, Sess. Laws 1921, c. 106, p. 246.) Whether it is the part of wisdom to exclude school children from the bonded protection, is a matter in the discretion of the legislature. But school authorities could, of their own volition, exact a bond from such carrier.

The exemption of "motor propelled cars or engines operated on the tracks of steam or electric railroads," or "companies operating exclusively within the corporate limits of incorporated cities" is not arbitrarily discriminative or unreasonable. (West v. City of Asbury Park, supra.) The former are already under the jurisdiction of the Public Utilities Commission (C. S., c. 115; Packard v. Banton, supra); and the latter are left in the control of the cities. (Savannah, T. I. of H. Ry. v. Savannah, 198 U.S. 392, 25 Sup. Ct. 690,49 L.ed. 1097; Ex parte Hoffert, 34 S.D. 271, 148 N.W. 20,52 L.R.A., N.S., 949.) In any event, the classes are so inherently subject to distinction as to permit of the classification. (State v. Horn, 27 Idaho 782, 152 P. 275; State v. SeattleTaxicab T. Co., supra.)

The carrying of baggage is ordinarily incidental to the carrying of passengers (10 C. J., p. 1196, sec. 1567), and express companies are already subject to a business tax. (C. S., sec. 3355.) The fact that such regulations might burden the carrying of United States mails, and the necessity of unhampered transportation thereof, are sufficient justification for the exemption of mail carried from the tax.

The five per cent tax levied by the act is not a "toll." Its levy is not in violation of "the acts of November 9, 1921 (1921 Sup. Fed. Stats. Ann. 95), and of July 11, 1916 (1918 Sup. Fed. Stats. Ann. 639), forbidding tolls on federal aid roads." It is a license tax laid not upon the vehicle, but upon the privilege of using the highways for business purposes. (City of St. Louisv. Western Union T. Co., 148 U.S. 92, 13 Sup. Ct. 485,37 L.ed. 380; Cardwell v. American R. B. Co., 113 U.S. 205,5 Sup. Ct. 423, 28 L. ed. 959.) [28] For the same reason that it is a license tax, it does not violate the provisions of Idaho Const., art. 7, sec. 5, which requires a uniformity, and prohibits duplication, of taxes. (Berry on Automobiles, 4th ed., secs. 110, 111, 112; In re Kessler, supra; Jasnowski v.Dilworth, supra; Ex parte Hoffert, supra; Ohio Tax Cases,supra.)

Plaintiff complains that defendant requires an indorsement upon each insurance policy as set out at length, and that all bonds be in a form as set forth attached to the complaint. He nowhere pleads, except by inference, any illegality in those requirements, but does plead that he refuses "to file any statement, insurance policy or bond as specified in said Chapter 197, or as required by said defendant, or otherwise." A reasonable authority is vested in the defendant in "charge of the administration and enforcement of this act." He has no authority to extend the requirements of the act, or the liability of the plaintiff or others, or the terms of such a policy of insurance or bond, beyond the terms of the act. The requirements and liabilities are statutory, and cannot be extended beyond the statute. But we have not the case of one before us who offers to comply under any terms and we thus cannot pass upon the manner or form of his right to comply, or his compliance, until he does make such offer or attempt.

The judgment is affirmed. Costs to respondent.

William A. Lee, C.J., and Wm. E. Lee and Givens, JJ., concur.