State v. Gish

Evans, J.

1. Statutes: construction: character of statute: related sections: implied meaning part of statute. The information charged the defendant with the violation of Secs. 7, 8, and 12, of Chapter 72 of the Acts of the 34th General Assembly, in that on May 29, 1913, he operated upon the public highway his motor vehicle, without having displayed thereon registration numbers, as required by the statute. That the defendant was operating his motor vehicle upon the public highway on the date named and that no number plates for 1913 were displayed thereon was and is conceded. His denial of guilt was predicated upon his inability to obtain from the secretary of state his official number plates, he himself having complied with every prerequisite of the statute to entitle him to such number plates. He offered evidence tending to prove that more than one month "prior to May 29, he had properly re-registered his motor vehicle with the secretary of state and had paid the full fee required therefor; and also tending to show that the re-registration had in fact been entered by. the secretary of state and a 1913 number assigned to the defendant, and that the re-registration receipt, including the number, had been received by the defendant; that the defendant failed to-receive his number plates and that such failure was through no fault on his part. This line of evidence was all rejected on the ground that the sole question to be tried was whether the defendant operated his motor vehicle upon the public highway at the time alleged without displaying the required number plates. Upon this holding the defendant was necessarily convicted, regardless of the reason for the failure to display number plates and regardless of the question of his own default in relation thereto. We are first confronted, therefore, with the necessity of construing the statute upon which the prosecution is based.

The information charged the violation of sections 7, 8, and 12 of Chapter 72 of the Acts of the 34th General Assembly “and amendments thereto.” This chapter was amended by chapter 130 of the Acts of the 35th General Assembly. . By this amending chapter, substitutes were enacted in lieu of sections 7 and 8 of the previous statute. Such substitutes, however, made no changes in sections 7 and 8 that bear upon any question involved in this case. For the convenience of this discussion, therefore, we will take no account of the amending Chapter 130, Laws Thirty-fifth General Assembly, and will refer to the sections as numbered in the previous statute. The evidence on the trial disclosed no violation of Sees. 7 and 8. The only offense contended for by the state was the violation of Sec. 12, which is as follows:

“Sec. 12. No person shall operate or drive a motor vehicle on the public highways of this state after the fourth of July, nineteen hundred eleven, unless such vehicle shall have a distinctive number assigned to it by the secretary of state, and two number plates with numbers corresponding to that of the certificate of registration conspicuously displayed, one on the front and one on the rear of such vehicle, each securely fastened so as to prevent the same from swinging.”

Section 3 of the act in question puts the duty of initiative upon the owner of a motor vehicle and requires him to register such vehicle with the secretary of state and to furnish certain data in his application for such registration. Sections 7 and 8 provide for the payment of the annual fee to the same officer. Section 5 lays upon the secretary of state the duty to make the registration in a public record and to assign to the vehicle a “distinctive number. ’’ Section 6 provides as follows:

“Sec. 6. Upon the filing of such application and the payment of the fee hereinafter provided, the secretary of state shall assign to such motor vehicle a distinctive number and, without expense to the applicant, issue and deliver or forward by mail or express to the owner a certificate of registration, in such form as the Secretary of State shall prescribe, cmd two number plates.”

When the owner has complied on his own part with every requirement ef the statute necessary to entitle him to receive the number plates from the secretary of state, and he fails to receive the same only because such official is unable to furnish them, is this a lawful excuse for his failure to display such number plates upon his motor vehicle? And in such case, is it a violation of See. 12 to operate such vehicle upon the public highway without displaying such number plates ?

To put it in another way, what is the gist of the offense defined in such section? Is it the operation of the motor vehicle? Or is it the failure to attach and display the number plates while operating the vehicle ?

It will be noted that Sec. 12, above quoted, in terms prohibits the operation of a motor vehicle upon the public highways “unless such vehicle shall have a distinctive number assigned to it by the secretary of state and two number plates . . . conspicuously displayed, etc.” Construing this section alone without regard to any constitutional limitation and without regard to the alternating duties of the owner and the secretary of state as specified in the preceding sections already referred to, it would bear the construction put upon it by the trial court. According to such construction, the operation of the vehicle is absolutely prohibited if number plates cannot be obtained, regardless of any fault on the part of the owner. This construction has its analogy in the construction adopted by us of the statutes relating to the sale of intoxicating liquors and to permits and consents to sell. The reason of such construction of such statutes is that absolute prohibition of the sale of intoxicating liquors is the rule in this state and that such prohibition is not lifted except by the full performance of the necessary conditions precedent.

These statutes and our construction thereof rest upon the undoubted legislative authority to enact absolute prohibition of the sale of intoxicating liquors. If the legislature has authority to enact absolute prohibition of the use of motor vehicles, it might afford a reason why an analogous construction should be put upon Sec. 12 above quoted as is put upon such statutes relating to sales of intoxicating liquors. But counsel for the state do not. claim so broad a legislative authority. Doubtless no one will contend that the legislature can absolutely prohibit the use of motor vehicles without transcending its constitutional limitations. It may regulate their use; but it can no more prohibit such use than it could prohibit the use of lumber wagons. The right of regulation rests upon its own peculiar ground, and is free from constitutional objection. As a means of such regulation, there may be imposed upon the owner reasonable duties which shall be performed by him as a''condition precedent to his use of the vehicle.

Taking the entire legislative act now under consideration, it is manifestly a regulation of the use of motor vehicles and not an attempted prohibition thereof. It ought, therefore, to be construed consistently with its character in that regard. The gist of the violation, therefore, must be not the mere use of the motor vehicle by the owner, but the failure of the owner to perform the statutory duties laid upon him as conditions ■precedent to its use. In order that the owner may be constitutionally precluded from the use of his vehicle, he must himself be found in default in the performance of some statutory duty imposed upon him as a condition precedent to its use.

Turning now to Secs. 3, 7, and 8 of the act in question, we have already noted that they require a registration, or application for registration, and the payment of the required fee by the owner of the vehicle. Thereupon Secs. 5 and 6 of the act define the duties of the secretary of state in relation to such registration. These duties include that of forwarding to the owner, without expense, “two number plates.”

These number plates being furnished, Sec. 12 casts upon the owner the duty to attach them to his vehicle “conspicuously displayed.” If, in the ease before us, .the number plates had been received by the defendant and he had failed to use them in the manner specified, he would be clearly guilty of violating Sec. 12. Assuming, however, as the rejected evidence tended to show, that the secretary of state failed to forward the number plates, manifestly the defendant- could not be in default for failure to attach them. He could neither supply them himself nor substitute others for them. Section 12 must be construed in the light of Sec. 6. Section 6 in terms undertakes that number plates shall be furnished to the owner. The mandate of Sec. 12 that such number plates shall be attached to and conspicuously displayed upon the vehicle necessarily rests upon the implication that the requirements of See. 6 shall have been first duly performed. Counsel for the state do not contend for any power in the legislature to penalize the owner of a vehicle for. failure of the state official to furnish the number plates. Their contention is that he is subject to penalty for using his vehicle before getting the number plates. To put it in another way, that he is subject to penalty for not desisting from the use of his vehicle until he shall receive the number plates, however long the delay. But to compel the owner to desist from the use of his vehicle for an indefinite length of time because of the inability of the official machinery of the state to furnish him the number plates, as contemplated by the statute, would of itself amount to a very practical penalty which might operate more seriously upon him than the maximum fine imposed by the statute. If the legislature is without power to impose upon him a direct penalty for the mere default or failure of another, the statute ought not to be construed so as to impose an indirect penalty upon him under the same circumstances and without any default on his own part. The owner’s right to the use of his vehicle after complying with the' statutory duties imposed upon him is a substantial property right. It is common knowledge, that the daily business of thousands of people in the state is dependent upon the daily use of such vehicles. It is a matter of public notoriety, also, that the machinery provided by the state for the furnishing of number plates has sometimes proved inadequate to meet the demands upon it; and that the secretary of state, without fault on his own part, has been unable sometimes to furnish number plates to those entitled to them without long delay. The construction of the statute which is contended for by the state would require many thousands of vehicles to stand unused waiting for some belated factory to perform its broken contract with the secretary of state. These considerations should not be overlooked in ascertaining the legislative intent, because these are conditions which arise naturally out of the practical operation of the law.

It is urged by counsel for the state that if the secretary of state failed to send to defendant his number plates, then such official is himself liable for violation of the statute, and that defendant has his remedy against him for such breath of duty. We see no substantial aid to the prosecution in this suggestion. It may be conceded that under a strict and literal construction of this act the secretary of state would be liable to punishment thereunder for his failure to send the number plates, however helpless he might be to do so. The penal provision of the act is See. 22, as follows:

“See. 22. The violation of any of the provisions of sections from three to fifteen both inclusive, of this act shall constitute a misdemeanor punishable by a fine not exceeding fifty dollars.”

This argument only emphasizes the absurdity of result to which we would be logically led by adopting the construction of the act thus contended for. It is practically inconceivable that the legislature intended to punish a state official for failing to perform an official act which for the time being was impossible. It is quite as inconceivable that it should intend such failure to result in penalty to a private citizen who was himself helpless either to prevent or to supply such failure.

2 Statutes * ' construction: absurdity: legislative in-Assuming, as we must, that the defendant could have proved the facts which his offered evidence tended to prove and that he could have shown himself free from all default in .the performance of the precedent duties imposed upon him by the statute, it is repug- . naut to every sense ox justice that he should be punished for his mere inability to obtain from the state the number plates due him. No statute ought to be construed to'such a result if it will fairly bear a different construction. The purpose, of course, of statutory construction is to ascertain and declare legislative intent as expressed in the statute. It has often been held, however, that where a literal construction of a statute leads to absurdity or to manifest injustice or oppression, the court will not be bound by literal terms, but will seek a construction consistent with a sense of justice, if possible, and will presume such to have been the intent of the legislature. The following excerpts from some of the cases sufficiently support this proposition:

“ ‘Acts of Parliament are to be construed as no man that is innocent or free from injury or wrong be by a literal construction punished or endangered.’ Margate Pier Co. v. Hannam, 3 B. & A. 266. ‘If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity.’ State v. Clark, 29 N. J. 96. ‘All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression or an absurd consequence. It will always, therefore, be presumed that the Legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter.’ United States v. Kirby, 74 U. S. 482 (19 L. Ed. 278). ‘It is a familiar rule that a thing may be within the letter of the statute, and yet not within the statute, because not within its spirit nor within the intention of its makers. This is not a substitution of the will of the judge for that of.the legislator, for frequently words of general meaning are used in a statute, words broad enough to include the act in question, and yet a consideration of the whole legislation or of the circumstances surrounding its enactment or of the absurd results which follow from giving such broad meaning to the words makes it unreasonable to believe that the Legislature intended to include the particular act.’ Trinity v. United States, 143 U. S. 457 (12 Sup. Ct. 511, 36 L. Ed. 226). ‘A thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers.’ Jackson v. Collins, 3 Cow. (N. Y.) 89. See also, Ryegate v. Wardsboro, 30 Vt. 746; Murray v. Hobson, 10 Colo. 66 (13 Pac. 921); Commonwealth v. Kimball, 24 Pick. (Mass.) 366; Whitney v. Whitney, 14 Mass. 88; Pierce v. Emery, 32 N. H. 508; Austin v. State, 22 Ind. App. 221 (53 N. E. 481).” State v. O’Neil, 147 Iowa 513, 533.

The manifest purpose of requiring registration and the display of official number plates is (1) to accomplish in advance the collection of the license or registration fee, and (2) to furnish a means of identification of the vehicle.

The pre-eminent purpose, however, of requiring annual re-registration and annual number plates (which is the requirement involved in the case at bar) is to accomplish the collection of the annual fee. Identification is not aided by mere re-registration or by a change of numbers or plates.

According to the offered evidence in the case at bar, the re-registration was made; the annual fee was paid. There was no evasion of means of identification. On the contrary, the defendant carried on display his 1912 number plates as such. No better means of identification were available. Having responded to the purpose and spirit of the law, and having performed its letter as to every duty precedent imposed upon him, the defendant is haled for punishment only because the official machinery of the state temporarily failed to perform the impossible task laid upon it.

We reach the conclusion, therefore, that Sec. 12 must be read as pursuant to Sec. 6. If the owner of a motor vehicle is otherwise free from default, his duty to attach and display his number plates as provided in Sec. 12 cannot arise until such number plates due him shall have been furnished by the secretary of state, as required by Sec. 6, and implied by such See. 12 as a fact accomplished. This duty imposed upon the owner by Sec. 12 arises out of, and follows after, the performance of the requirements imposed upon the state official by Sec. 6. It is therefore necessarily in abeyance until such antecedent requirement be performed. Any other construction would impose upon him an impossible duty. It is an old legal maxim, applicable to criminal cases especially, that there can be no obligation to perform the impossible; Impossibilium nulla obligatio est. For an application of this maxim, see authorities cited in 21 Cyc. 1741. It follows, therefore, that defendant’s offered evidence tended to prove that on May 29, 1913, he was not himself in default as to any regulatory condition precedent to his right to use his vehicle. Granted that his use of the vehicle without displaying the number plates was sufficient prima-facie evidence against him as tending to show his default, we hold that he was entitled to show affirmatively as a defense that he had complied with all the requirements of the statute on his own part and had failed to receive his number plates through no fault of his own.

This construction saves the spirit of the act and perhaps its validity. If there is any evasion of the letter of the act, it is only because “the letter killeth,” as it is sometimes wont to do.

3‘ ?°onalTl1w: moot case. 2. Considerable attention has been devoted by appellant’s counsel to the constitutionality of the act as a whole. The main ground of attack has been upon that feature of the statute which imposes a registration fee in lieu of all other forms of taxation. The argument is that this adopts a special method of taxation for this particular property and a special method of distribution of the taxes thus collected, so as to deprive certain municipalities from all benefits of such taxation. The objectionable features of the statute in this regard are all contained in Sec. 9. This section provides for the- cancellation of all assessments of motor vehicles upon the assessors’ books, and provides for an exemption from all taxation except the registration fee. If appellant’s contention were sustained in this regard, it would avail him nothing in this case. Our pronouncement, therefore, would be mere dictum. The statute in question involves not only the taxing power, but the police power of regulation as well. If we were to strike down See. 9, which section alone involves the exercise of the taxing power, it would still leave the remainder of the act quite intact and independent and involving only an exercise of the police power. That a reasonable fee may be imposed as an incident to the exercise of the police power of regulation is too well settled to require citation of authorities. Standard Stock Food Company v. Wright, 225 U. S. 540; Engel v. O’Malley, 219 U. S. 128; St. Louis v. Williams, 235 Mo. 503; 139 S. W. 340.

Appellant does not assail the registration fee as being excessive. His own position is that he paid it and without protest. To strike out Sec. 9, therefore, would open no door of escape to the defendant, but on the contrary would subject his motor vehicle to assessment and taxation by the regular taxing officials.

. T time^vari^ aDce• 3. The dissenting opinion filed herewith renders it necessary that a few further facts be detailed. The emphasis of the dissent seems to be put upon the suggestion that the date of the offense as alleged in the information, vizv May 29, 1913, was not material and that the defendant might have been found guilty . for violation of the statute as of April 26,1913. The defendant himself testified: “I didn’t start using my machine until the twenty-sixth day of April.” Granting the foregoing to be sufficient to permit the affirmative inference that the defendant did use his vehicle on that date, there was no claim in the trial below that the state was entitled to a conviction for such offense, nor would the evidence in the record before us sustain a conviction as for an offense committed on any other date than May 29, 1913.

The defendant was arrested at Iowa Falls in Hardin County on the evening of May 29,1913, under an information charging him with the violation of the statute on such date in Hardin County. He was convicted before a justice of the peace and appealed to the Hardin District Court. The defendant was not a resident of Hardin County. He was a resident of Blairsburg in Hamilton County. On May 29, he came in his vehicle to Iowa Falls to attend a funeral. While there he was arrested, as already indicated. There is no suggestion of evidence in the record that the defendant had ever operated his vehicle in Hardin County prior to that date. If he was not guilty of committing the offense on May 29, then, under the evidence, he was not guilty of any offense at any time within the jurisdiction of the Hardin County courts. If it were true, therefore, that he had operated his vehicle on April 26 in his home county while he was in default in the payment of his annual registration fee, this would not justify his conviction in Hardin County under this information.

orating aúto0-p mobile without plates: non-default. The significance of these dates is that the defendant offered to prove that on April 26, 1913, he remitted to the secretary of state the full registration fee of $12.96 by bank draft drawn to the order of the secretary of state. The cancelled draft bearing such date . t ■ was offered m evidence and was ruled out on the objection of the state. The defendant also offered in evidence the receipt of the secretary of state for such fee, such receipt being as follows:

“State of Iowa, Department of State, W. S. Allen, Secretary. C. G. Watkins, Deputy. R. S. Hayward, Chief Deputy. Motor Vehicle Department. Certificate No. 52607. Fee Paid, $12.96.

“Des Moines, Iowa, May 27,1913. This is to certify that B. H. Gish of Blairsburg, Iowa, has registered an Automobile described in application on file in this department and has paid the fee required by law for the period ending December 31, 1913.

“W. S. Allen, Secretary of State.

“By K.

“Number assigned 52607.”

The state objected to this evidence on the ground that “the sole and only question being tried in this case is the question whether the defendant operated a motor vehicle on the public highway of this state on May 29, 1913, without it having on a registration plate for the year 1913, and for the reason that Exhibit ‘B’ is incompetent and immaterial.”

The question was thus squarely presented whether it was open to the defendant to prove that he was free from default on his own part in that he had complied with all the requirements of the statute on his part within such time as to have entitled him to the receipt of the number plates from the state official prior to May 29, the date of his- arrest in Hardin County. The adverse ruling closed this door. We hold that such fact, if proved, was available to him and that the proffered evidence should have been received.

Whether the defendant was necessarily in default prior to April 26, by his failure to pay the registration fee prior to such date and while his vehicle was not in operation, is a question not material to our present consideration. He terminated such default, if any, by payment on such date. Previous default would not render him a permanent outlaw. Even though in default, he was under continued obligation to pay. By performing his obligation on that date, he discharged it in full. He became thereby entitled to his number plates within a reasonable time and in the ordinary course of mail or express.

We shall not be swift to find any obstacle at any time to the diligent enforcement of the statute under consideration. It goes without saying that every person liable thereunder for registration fees should be required to pay the same and should be punished for operating a ear without such payment. Where a defendant is found guilty in a prosecution under this statute, it is provided that judgment shall be entered against him not only for the fine imposed, but also for the amount of the registration fee due from him. The amount of such registration fee thus collected is to be thereupon remitted to the secretary of state. This proviso of the statute rests upon the assumption that failure to pay the registration fee may be deemed as of the very gist of the offense charged thereunder. However, to punish an owner for alleged violation of this statute when his money has lain for weeks in the office of the secretary of state and while he himself has fully performed every act which the statute requires or permits him to do as a condition precedent to the receipt of his number plates, is not an enforcement of the statute in any just sense. To enter judgment against him for a registration fee which had already been receipted for by the secretary of state would be mere travesty.

We hold, therefore, as already indicated, (1) That where the owner of a motor vehicle has fully complied with all the requirements of Secs. 3, 7, and 8 of the statute so as to entitle .him to receive number plates from the secretary of state as provided by Sec. 6, and where he fails to receive his number plates within a reasonable time through no default of his own, then he is not guilty of violation of the statute by a mere failure to attach such number plates. In such case, the duty to attach the plates, as required by Sec. 12 can only arise after the requirements of Sec. 6 shall have been performed by the secretary of state. In such case, also, the failure of the secretary of state to comply with the requirements of Sec. 6 cannot operate as a bar against the operation of the vehicle by the owner.

(2) That the proffered evidence rejected by the court below was competent and material in support of the defense herein considered, and it should have been received.

. The judgment below is therefore reversed. — Reversed and Remanded.

Ladd, O. J., Weaver, Preston, Gaynor and Withrow, JJ., concur. Deemer, J., dissenting.