265 N.W. 259 | N.D. | 1936
The appellant is an "auto transportation company" as defined by chapter
Appellant's first contention is that "chapter
Chapter
From the foregoing legislative declaration, it appears that the legislature intended to cover a field of transportation which includes the entire sphere of the 1931 act. A comparison of the two laws discloses that such intention was effectively carried out. The 1931 act regulates common carriers operating over public highways in this state. Article two of the 1933 act operates in exactly the same field. It covers the same general class of carriers; regulation thereof is conferred upon the same Board, which is authorized to issue the same type of permissive certificates and charge therefor the same fees which go into the same fund. Each act provides for an appeal to the district court. Although it covers the same field and contains many similar provisions, the 1933 act cannot be said to be a confirmation of the former act, for it provides different classifications and different standards under which the regulatory authority of the Board of Railroad Commissioners is exercised.
It is a well settled rule that even though repeals by implication are not favored, nevertheless, where a new statute covers the entire subject matter of a former statute in such a way as to set up a complete plan or course of action pertaining to such subject matter which is inconsistent with that contained in a former statute, the new statute will be held to repeal the old one or at least to supersede it entirely, and the old statute no longer remains in force. Tilton v. Sanbornton,
The 1933 act specifically repeals "All parts of Chapter
Chapter
The appellant further contends that both chapter 179 and chapter
The first exemption to be considered provides that commercial freighting "shall not include hauling done for farmers in transporting agricultural products to or from market, nor shall this include any one hauling farm products to or from a railroad station in his farming territory." The motor vehicle registration law of which chapter 181 is a part, requires those engaged in commercial freighting to pay in addition to the usual motor vehicle registration fee a further fee based on load capacity varying from $10.00 for one ton trucks to $250.00 for trucks having a load capacity over five tons. It also states that the fees provided for shall be in lieu of all taxes both state and local and shall be paid into the motor vehicle registration fund which is used chiefly to pay the costs and expenses of the administration of the state highway department and the costs of construction and maintenance of highways.
The state in imposing fees for the use of its highways may classify the users and impose different fees upon different classes, Alward v. Johnson,
This court in discussing the provisions of the North Dakota Constitution in the case of State ex rel. Dorval v. Hamilton,
The appellant urges that the statute here considered is unconstitutional when measured by the rule laid down in the case of Smith v. Cahoon,
In discussing this exemption, the court said, "But the constitutional guaranty of equal protection of the laws is interposed against discriminations that are entirely arbitrary. In determining what is within the range of discretion and what is arbitrary, regard must be had to the particular subject of the State's action. In the present instance, *300
the regulation as to the giving of a bond or insurance policy to protect the public generally, in order to be sustained, must be deemed to relate to the public safety. This is a matter of grave concern as the highways become increasingly crowded with motor vehicles, and we entertain no doubt of the power of the State to insist upon suitable protection for the public against injuries through the operations on its highways of carriers for hire, whether they are common carriers or private carriers. But in establishing such a regulation, there does not appear to be the slightest justification for making a distinction between those who carry for hire farm products, or milk or butter, or fish or oysters, and those who carry for hire bread or sugar, or tea or coffee, or groceries in general, or other useful commodities. So far as the statute was designed to safeguard the public with respect to the use of the highways, we think that the discrimination it makes between the private carriers which are relieved of the necessity of obtaining certificates and giving security, and a carrier such as the appellant, was wholly arbitrary and constituted a violation of the appellant's constitutional right. `Such a classification is not based on anything having relation to the purpose for which it is made.' Air-Way Electric Appliance Corp. v. Day,
The question of discrimination in that case is determined upon the proposition that the Florida statute is a regulatory and public safety measure. It is clear that when considered from the standpoint of public safety a motor truck using the highways for hire affords the same hazards to the public whether it hauls wheat and potatoes, or whether it hauls furniture or fuel, and where the purpose of the act is the promotion of public safety, an exemption based upon the hauling of agricultural products does not constitute a reasonable classification. In the case of Prouty v. Coyne (D.C.)
Chapter
In the case of Continental Baking Company v. Woodring, supra, the Supreme Court of the United States dealt with a statute of the state of Kansas which regulated and taxed various types of carriers including "private motor carriers of property" and which exempted "transportation of live stock and farm products to market by the owner thereof or supplies for his own use in his own motor vehicle." Under that statute the tax and license fees above the expense of administration go to the highway fund of the state for the maintenance and construction of highways. In sustaining the constitutionality of the act it was said:
"The court found a practical difference between the case of the appellants `who operate fleets of trucks in the conduct of their business and who use the highways daily in the delivery of their products to their customers,' and that of `a farmer who hauls his wheat or livestock to town once or twice a year.' The legislature in making its classification was entitled to consider frequency and character of use and to adapt its regulations to the classes of operations, which by reason of their habitual and constant use of the highways brought about the conditions making regulation imperative and created the necessity for the imposition of a tax for maintenance and reconstruction."
The exception in the North Dakota statute which we are considering is broader in scope than that involved in the above case, but it is nevertheless based upon a sufficiently clear and reasonable classification. Agriculture is a basic industry of the state, and is carried on in all sections of the state. The unit of production is the individual farm *302 which in most instances is not reached by the primary system of highways and in many cases not even by slightly improved public roads. The legislature may have considered that those carriers hauling agricultural products for farmers should be encouraged to render adequate transportation service to agriculture by exempting them from the payment of the commercial transportation fee.
It is a matter of common knowledge that under the present transportation and marketing system the cost of transportation of agricultural products from the farm to the market, or to the railway station usually falls upon the farmer. He has no way of including the cost of transportation in the price which he receives for his products and thus passing it on to the purchaser. The cost of transportation is one of the handicaps of the farming industry in this state. The legislature may have reasonably decided that since the fee here considered adds to the cost of transportation between farm and market or at least between the farm and the railroad station, it should not impose a further transportation burden upon agricultural products. When considered in this light, the exemption is based upon a reasonable and distinguishable classification and is not in conflict with the provisions of either the state or Federal Constitutions. Nance v. Harrison,
The next exemption to be considered provides: "This act shall not apply to retailers engaged in delivering only gas and gas products from the bulk station directly to the farmer." No reasonable distinction can be made between the retailer engaged in delivering gas and gas products to the farmer directly from a bulk station and a retailer who delivers the same products from elsewhere. No such distinction can be made between a retailer who delivers such products from a bulk station and someone other than a retailer who delivers such products from a bulk station. There is no reasonable distinction between a retailer who delivers such products from a bulk station to a farmer and a retailer who delivers the same products over the same roads for the *303 same use or purpose to one who is not a farmer. There appears to be no distinction between a retailer delivering gas and gas products to a farmer and another retailer delivering household necessaries, clothing or lignite coal. The classification set up by this exemption is purely arbitrary.
The last exemption excludes from the definition of commercial freighting "farmers hauling lignite coal regardless of the distance hauled, provided such hauling is done for other farmers and in exchange for work and not for cash." This exemption also creates a discriminatory and unconstitutional classification. One farmer who hauls lignite coal for gain, in the form of work, should not be classified differently from another farmer who hauls lignite coal for gain, in the form of cash. Such an attempted distinction is arbitrary. There appears to be no reasonable distinction between the farmer who hauls lignite coal in exchange for work and someone not a farmer who might do the same thing. This exemption discriminates against the appellant who must pay a fee for using the highways in hauling lignite coal for compensation, while no fee is required from those favored by the exemption. The fact that a person is a farmer does not entitle him to a favored classification as a hauler of coal.
The discriminatory classifications contained in chapter
Since chapter 181 is unconstitutional, subdivision (e) of § 1 of chapter
NUESSLE, BURR and CHRISTIANSON, JJ., and HOLT, Dist. J., concur.
Mr. Chief Justice BURKE, deeming himself disqualified, did not participate, Hon. DANIEL B. HOLT, Judge of First Judicial District, sitting in his stead.