195 P. 575 | Or. | 1921
The trial court entered a judgment of nonsuit in favor of defendant and against plaintiffs because of the provision of Section 9, Chapter 399, Laws of Oregon, 1919, which provides that:
“Upon the purchase of a motor vehicle registered in accordance with this act, the title of the number plates shall vest in the vendee, and said vendee shall within five days after the date of purchase notify the Secretary of State, stating his name and business address, the name of the vendor, the license or registration number and the engine number under which such motor vehicle is registered, upon the receipt of which information the Secretary of State shall transfer the said license or registration number to said vendee.
“A fee of $1.00 shall be paid to the Secretary of State for each transfer, which transfer he shall file in his office and note upon the registration book or index. No sale or transfer of any motor vehicle registered under this act shall b“e valid without compliance with the provisions of this section.”
“No sale or transfer of any motor vehicle registered under this act shall be valid without compliance with the provisions of this section.”
“It has been held in this state in several cases that in replevin under the allegation of general ownership the plaintiff may prove a special property entitling him to possession: Reinstein v. Roberts, 34 Or. 87 (55 Pac. 90, 75 Am. St. Rep. 564); Backhaus v. Buells, 43 Or. 558 (72 Pac. 976, 73 Pac. 342); Culver v. Randle, 45 Or. 491 (78 Pac. 394); Harvey v. Lidvall. 48 Or. 558 (87 Pac. 895); Swank v. Elwert, 55 Or. 487 (105 Pac. 901); Roberson v. Ellis, 58 Or. 219 (114 Pac. 100).”
Mr Justice McCamant, in Swank v. Moisan, 85 Or. 669 (166 Pac. 962, 964), has said:
“The sale of plaintiff’s automobile became invalid ten days after the date of sale by operation of this statute. There being nothing immoral or unlawful in the contract of the parties, the law will not leave them where it finds them. Plaintiff could replevy his automobile and recover the value of its use by the defendants."
And authorities there cited.
“ * * The legislative assembly shall not declare an emergency in any act regulating taxation or exemption.”
Of course, the legislative assembly should never declare an emergency when enacting any law regulating taxation or exemption therefrom. Such is the mandate of the Constitution. But plaintiffs are not in a position to raise that question. The period of 90 days provided by Section 28, Article IV, Constitution, suspending the operation of a law, had expired prior to plaintiffs’ deal with Seabrook & Company. It is now, and at the time of the attempted transfer of the motor vehicle in question was, a valid law. The only effect the nonobservance, if it be such, of the provision of the Constitution referred to, could have in the instant case, would be to eliminate Section 44 of the Motor Vehicle Law, containing the emergency clause.
“A re-enactment of a former statute is considered as a continuation of the language so repeated, and not a new enactment as of that date.”
The provision that the Secretary of State have notice of the sale and transfer of a registered motor vehicle, and, in the absence of such notice, that the sale or transfer of such motor vehicle registered under the motor vehicle law shall not be valid, is not a new legislative declaration, but is a restatement or republication of the law as it has existed since the enactment of Section 8 of Chapter 174, Laws of Oregon, 1911. Said Section 9 is a literal copy of Section 8, Laws of 1917, which, in substance, is Section 8 of Chapter 174, Laws of 1911. Hence, the plaintiffs are not in a position to say that Section 9 of the 1919 law is invalid or that they are not bound by the terms of said section for the reasons alleged.
It was stated by Mr. Justice Lord in an opinion rendered by this court in Elliott v. Oliver, 22 Or. 44 (29 Pac. 1), that:
“This court will avoid deciding upon the constitutionality of a statute whenever there appears in the record any other grounds sufficient to sustain a proper disposition of the case in judgment.”
Among other citations, he quotes with approval the following excerpt from Cooley’s Constitutional Limitations :
“Where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record present some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted and the question of constitutional power will be left for consideration
To like effect see State ex rel v. Lord, 28 Or. 530 (43 Pac. 471, 31 L. R. A. 473); State ex rel. v. Malheur County, 46 Or. 519 (81 Pac. 368); McKinney v. Watson, 74 Or. 220 (145 Pac. 266).
“While not absolutely controlling, the legislative designation is an important factor in determining the character of the tax imposed.”
As appears from the preamble of the statute, the members of the Oregon legislature, before enacting the Motor Vehicle Law, carefully informed themselvefe concerning the effect of the use of motor vehicles, upon the highways of the state.
While a preamble is no part of a statute, it is of importance in gathering the reasons for the passage of such an act as we have under consideration.
“A preamble is an introduction prefixed to a statute, reciting the intention of the legislature in framing it, or the evils which led to its enactment. It is no part of the law. * * It is evidence of the facts it recites”: Bouvier’s Law Dictionary.
“The movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves. Their success depends on good roads, the construction and maintenance of which are exceedingly expensive; and in recent years insistent demands have been made upon the states for better facilities, especially by the ever-increasing number of those who own such vehicles. As is well known, in order to meet this demand and accommodate the growing traffic the State of Maryland has built and is maintaining a system of improved roadways. Primarily for the enforcement of good order and the protection of those within its own jurisdiction the state put into effect the above-described general regulations, including requirements for registration and licenses. A further evident purpose was to secure some compensation for the use of facilities provided at great cost from the class for whose needs they are essential, and whose operations over them are peculiarly injurious.”
The Supreme Court of Ohio, in Allen v. Smith, 84 Ohio St. 294 (95 N. E. 832, Ann. Cas. 1912C, 611), has said:
“Doesn’t everybody know that the automobile is a new machine of travel; its use a new use of the highway; that it is dangerous to other travelers; that its power, its capacity for speed, the temptation it affords the reckless driver to operate it at a dangerous rate and in a careless manner, all distinguish the automobile from all other vehicles? Surely it cannot be necessary to further elaborate this fact so patent to every observing and reading person. The automobile is, therefore, a class by itself, the users of such machines a class by themselves, and legislation in recognition of this condition is based upon a solid, easily recognized distinction.”
“Motor vehicles have been classified separately from horse-drawn vehicles and have been the subject of separate legislation ever since they came into general use. Their departure in character, use, and speed from horse-drawn vehicles has been so great as to justify such classification. * * These ponderous vehicles, driven by powerful engines, are a menace to the public safety unless managed and driven by persons who are competent and qualified to operate them. Those used for transporting heavy merchandise are practically engine-driven freight cars. The separate classification of motor vehicles, so far as we are advised, has always been upheld by decisions and textbooks as reasonable. (See as bearing on this question, Jackson v. Neff, 64 Fla. 326 (60 South. 350); State v. Swagerty, 203 Mo. 517 (102 S. W. 483, 12 Am. St. Rep. 671, 10 Ann. Cas. 725, 10 L. R. A. (N. S.) 601); State v. Finch, 78 Minn. 118 (80 N. W. 856, 46 L. R. A. 437); Babbitt on Motor Vehicles (2 ed.), § 177; McQuillin on Mun. Ordinances, § 424.) ”
To the effect that classification based on horse-power is proper, see Hendrick v. Maryland, 235 U. S. 622 (59 L. Ed. 385, 35 Sup. Ct. Rep. 142). Likewise, see Lillard v. Melton, 103 S. C. 10 (87 S. E. 421); Heartt v. Downer’s Grove, 278 Ill. 92 (115 N. E. 869); Smith v. Commonwealth, 175 Ky. 286 (194 S. W. 367); also case of Kane v. New Jersey, 242 U. S. 160 (61 L. Ed. 222, 37 Sup. Ct. Rep. 30), where the court, speaking through Mr. Justice Brandeis, said:
“The power of a state to regulate the use of motor vehicles on its highways has been recently considered by this court and broadly sustained. * * It includes the right to exact reasonable compensation for special facilities afforded, as well as reasonable provisions to insure safety. And it is properly exercised in imposing a license fee graduated according to the horse
It was held in Jasnowski v. Board of Assessors, 191 Mich. 287 (157 N. W. 891), that:
“What classes of property shall be taxed and what shall be exempted except as restricted by the constitution is a question that rests within the discretion of the legislature. It is within legislative authority to exempt from other forms of taxation, property which pays a specific tax, whether or not the tax is levied on the property itself or on the right to use it in a certain way.”
In Rast v. Van Deman & Lewis, 240 U. S. 357 (60 L. Ed. 679, Ann. Cas. 1917B, 455, L. R. A. 1917A, 421, 36 Sup. Ct. Rep. 374), speaking through Mr. Justice McKenna, the court said:
“It is established that a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it, and the existence of that state of facts at the time the law was enacted must be assumed: Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78 (55 L. Ed. 369, Ann. Cas. 1912C, 160, 31 Sup. Ct. Rep. 337). It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety: Chicago, B. & Q. R. R. v. McGuire, 219 U. S. 549 (55 L. Ed. 328, 31 Sup. Ct. Rep. 259); German Alliance Ins. Co. v. Kansas, 233 U. S. 389, 413, 414 (58 L. Ed. 1011, 1022, L. R. A. 1915C, 1189, 34 Sup. Ct. Rep. 612); Price v. Illinois, 238 U. S. 446, 452 (59 L. Ed. 1400, 1405, 35 Sup. Ct. Rep. 892).
“It is the duty and function of the legislature to discern and correct evils, and by evils we do not mean some definite injury but obstacles to a greater public welfare: Eubank v. Richmond, 226 U. S. 137, 142 (57 L. Ed. 156, Ann. Cas. 1914B, 192, 42 L. R. A. (N. S.) 1123, 33 Sup. Ct. Rep. 76); Sligh v. Kirkwood, 237 U. S. 52, 59 (59 L. Ed. 835, 837, 35 Sup. Ct. Rep. 501).
The existence of the necessity for requiring a privilege tax for the operation of the vehicles described in the Oregon Motor Vehicle Law upon the highways of the State of Oregon, and the authority to say what constitutes a reasonable tax for such privilege, is for the determination of the law-making power of the state. We cannot say that the license fee exacted for the privilege of operating motor vehicles upon the highways of this state is unreasonable. It is common knowledge that 103,790 vehicles have been registered under the provisions of the motor vehicle law of this state for the year just closed. They are driven over the highways of Oregon and their operations have caused immense damage to the roads of the state. Millions of dollars have been expended by this state and millions more will be expended in the future, for the construction and maintenance of highways, chiefly for the operation of motor vehicles. In this modern age the highways are chiefly used by the automobile, and it should pay, in a large measure, for their construction and destruction.
“The imposition is a license or privilege tax charged in the nature of compensation for the damage done to the roads * * by the driving of these machines over them, and is properly based, not upon the value of the machine, but upon the amount of destruction caused by it”: Kane v. State, 81 N. J. Law, 594 (80 Atl. 543, Ann. Cas. 1912D, 237, L. R. A. 1917B, 553); In re Kessler, 26 Idaho, 764 (346 Pac. 113, Ann. Cas. 1917A, 228, L. R. A. 1915D, 322).
A valuable case is Ard v. People, 66 Colo. 480 (182 Pac. 893), citing Atkins v. State Highway Department
For failure to admit the testimony hereinbefore referred to, this case is reversed and remanded.
Reversed and Remanded. Rehearing Denied.