175 Ky. 286 | Ky. Ct. App. | 1917
Opinion op the Court by
Affirming.
The appellant, G-. Murray Smith, who is a resident of the state of Kentucky, was charged by a summons, in the police court of the city of Danville, with a violation of section 2739, Kentucky Statutes, and particularly with having incurred the penalty denounced by subsection 31, of that section. From a judgment of that court finding him guilty of' the offense charged, he appealed to the Boyle circuit court, and a trial in that court having resulted in a judgment of conviction of the offense, from its judgment, he has appealed to this court. The action was tried in the circuit court upon an agreed statement of facts, which are as follows:
(1) The appellant, on the 4th day of June, 1916, drove on the public streets, of the city of Danville, an automobile, without first having registered it with the commissioner of motor vehicles and without having paid the license fee required by the statute, in question, for the year 1916, and at that time, exposed upon the vehicle a license tag for the year 1915, and which was for identification purposes only.
(2) The operation of motor vehicles damages the highways and roads in the state of Kentucky, many times more than the use of them by vehicles drawn by animals.
(3) The cost of registering an automobile, including the furnishing of the numbered tags, and maintaining the office of commissioner of motor vehicles, is less than the sum of one dollar for each automobile registered, and the cost of the registering of a motor vehicle of low horse power does not cost the state any more than the registration of one of high horse power.
(4) The vehicle, owned and used by appellant, was one of the touring type and of less than twenty-five horse power, and had been listed by appellant for ad valorem taxes in the county of Madison, and city of
The appellant offered a general demurrer to the summons, based upon the contention, that the statute, under which the prosecution against him was maintained, was contrary to the provisions of sections 51, 171, 174 and 11, of the constitution of this state, and the fourteenth amendment to the federal constitution, and that the act under which the prosecution was maintained was.therefore void. The demurrer was overruled, and upon the facts, the court held him to be guilty of the offense charged, as it must necessarily have done, and assessed the penalty. .j . J
The matter presented for determination is the soundness of the judgment overruling the demurrer, since there is no contention that the judgment should not have been rendered, if the statute, which appellant was accused of violating, is a valid one.
(a) It is insisted that the entire statute is invalid, because it relates to two subjects, and that only one of these is expressed in the title, and for that reason the statute is in violation of section 51, of the constitution of the state, which provides: “No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title.....” The title of the act, which is chapter 88b, Kentucky Statutes, 1915, is, “An act to regulate, license and govern the use of motor vehicles.” The act contains thirty-eight subsections. The first subséction defines what is meant by a motor vehicle when uSed in the act. By subsection. 2, the owner of a motor vehicle is required to file an application, properly sworn to, in the office of the Secretary of State, with certain facts specified, to be stated in it, including the number, style and motor power of the vehicle, on blanks' to be furnished by the Commissioner of Motor Vehicles, and pay to the commissioner a registration fee of six dollars on each motor vehicle of less than twenty-five horse power; eleven dollars on each vehicle of twenty-five horse power and less than fifty horse power; and twenty dollars on each vehicle of fifty horse power and over, and on each motorcycle a fee of five dollars. The date when the registration and registration fees fall due is provided for; that the Secretary of State furnish two distinctive number plates
; Because subsection 14 and section 27 provide for the payment of the license fees into the state road fund and the title of the act provides only fo.r the regulation, licensing, and governing the .use of motor vehicles, it is insisted that the title of the act is only broad enough to justify an act strictly for the regulation of motor vehicles and that the payment of the license fees into the state road fund is the setting apart of the fees for a revenue purpose, that is, the improvement of the public highways, and for that reason the act relates to two subjects and therefore is void. Without, at this point,
“A title to an act is not, in order to meet the requirements of the constitution, bound to contain all of the details of the body of the act. If so, the title would necessarily be as extensive as the body. All that is required is that the body of-the act should be so related to the title as to be easily and naturally embraced within its terms, or as it is sometimes said, they must be germane to each other. The relation should be so natural and obvious that the ordinary mind will perceive it.”
If the provisions of an act relate to one general subject and all of which are germane to that expressed in the title, the act will not be invalid as contrary to section 51, of the constitution, although some of the provisions might have relation to some other subject. Ex Parte Schuler, 139 Pac. 685. In McGlone v. Womack, supra, the title of the act was, “An act to promote the sheep industry and to provide a tax on dogs.” This court held that the title related to only one subject, which was the promotion of the sheep- industry by a tax on dogs, and that the act was not contrary to section 51, of the constitution, although the taxation'of dogs was incidental to the purposes of the act. The court in substance further held that the license tax imposed upon dogs was intended to be a regulation of dogs and in that way to promote the sheep industry. Under these well established rules for the construction of section 51 of the constitution, whether the statute under consideration is one adopted in the exercise of the police power of the state or one for the purpose of obtaining revenue, .alone, all of its provisions treat of but one general sub
(b) Further objection to the validity of the act in question is, that under the constitution of the state, the General Assembly is not authorized to enact a statute which regulates and governs the use of motor vehicles and requires a license fee of the owner, except under the.police power of the state, and that under such power the General Assembly is not authorized to require a license fee which exceeds the cost of the registration and supervision of motor vehicles. It having been agreed that the cost of the registration of a motor vehicle, including the furnishing of the numbered tags, and maintaining the office of the commissioner of motor vehicles, is less than the sum of one dollar for each vehicle registered, and the act having required fees largely in excess of one dollar, it is insisted that its enactment was beyond the authority of the General Assembly and for that reason the act is invalid. It is conceded that it is a right inherent in the sovereignty of the state to regulate the use of motor vehicles upon the roads of the state, and it has been so held by many courts. Bowser & Co. v. Thompson, Judge, 103 Ky. 331; Levi v. City of Louisville, 97 Ky. 400; City of Covington v. Woods, 17 R. 927; Bozeman v. State, 7 Ala. App. 151; Jackson v. Neff, 64 Fla. 326. In Babbitt’s Work on Motor Yehicles, section 156, it is said:
*294 “In most of the states there are statutes regulating the use and' operation of motor vehicles upon their highways. These statutes and their control over the use and occupation of the roads exist by virtue of what is known as the police power which belongs to every state, and extends everywhere within its borders.”
The use of. motor vehicles is deemed dangerous to the safety of the public, and especially to stand in need of public control. Within recent years the number of sucia vehicles has so increased that it has become imperatively necessary for the safety of the public and the proper execution of the laws, that the use of them upon the public thoroughfares should be held under rigorous control, and only recently has the public, as well as the law making powers, become aware of the extreme power of injury to the public highways of the state, possessed by motor vehicles. It has become apparent that a necessity exists for a large increase of the funds usually set apart for the maintenance of the public highways, on account of the great destruction wrought to them by the use of the motor vehicles. It seemed just to the General Assembly that the motor vehicles, the use of which was such a severe burden upon the roads,, should bear-the additional cost of keeping them in repair. It was probably the expectation of such unknown contingencies, that caused the constitution makers to insert section 174 in the constitution, which, among other things, provides:
“That nothing in this constitution shall be construed to prevent the General Assembly from providing for taxation based on income, licenses or franchises.”
This provision, if any constitutional authority was necessary, would seem to authorize the General Assembly to impose a license tax upon the privilege of the use of any property, which it would be justified in regulating and supervising under the police power of the Commonwealth. Levi v. City of Louisville, supra. The police power is one which arises out of the doctrine of necessity and is inherent in every government. As said by the Supreme Court of the United States in Adair v. United States, 208 U. S. 161:
“There are, however, certain powers existing in the sovereignty of each state in the union, somewhat vaguely termed the police power, the exact description and limitation of which have not been attempted by the*295 courts. Those powers broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public.”
The text writers, as well as the courts, have held that the police powers may be exercised touching the safety, health and morals and general welfare of the public. In 8 Cyc. 863, a definition of the police power of the state is attempted, and which is probably as specific as any which has been suggested, and is as follows:
“ Police power is the name given to that inherent sovereignty, which it is the right and duty of the government or its agents to exercise, whenever public policy in a broad sense demands, for the benefit of society at large, regulations to guard its morals, safety, health, order, or to insure in any respect such economic conditions as an advanced civilization of a highly complex character requires.”
Under the above principles there can be no doubt that it was within the power of the General Assembly to enact the statute assailed, as invalid, in this action, and a very cursory examination of it demonstrates the fact that it is a statute enacted primarily for the regulation and government of the use of motor vehicles upon the public roads in this state, and therefore a valid exercise of the police power of the state. It is comprehensive in its terms, and is intended to be a complete regulation of the use of motor vehicles, and the only question as to its validity when considered as a police measure, which could arise, is the excess of the license fee over the cost of registration and supervision of the vehicles, if such should be conceded to be the fact. It will be observed that the agreed statement of facts in this case does not contain a statement that the license fees are greater than are necessary to pay the cost of both the registration and supervision, after registration, of the use of motor vehicles. The agreement is that the cost of registration and the maintenance of the office of Commissioner of Motor Vehicles and the numbered tags, delivered to the owners of vehicles, is less than the sum of one dollar for each vehicle. It is, however, contended that as the cost of registering a vehicle of low horse power is just as great as the registration of one of greater horse power, that the exaction of a greater fee for the registration of vehicles ■ over twenty-five horse
“What is a reasonable fee is a question of fact, depending upon the particular circumstances; the cost of issuing the license certificate, together with the cost of registering, supervising and keeping in control the subject of the license; taking into consideration the area of the city, population, condition of public travel, etc.”
However, in McGrlone v. Womack, supra, the validity of what is known as the Dog Tax Law, in Kentucky, was involved. That law provides for the registration of each, dog over four months' old by the assessor and the collection of the tax thereon of one dollar, which is paid into the state treasury, but kept in a fund separate from the general funds of the state, and the owner of sheep, which have been killed or suffered damages from the ravages of dogs, may - present claims therefor tp the
(c) The appellant, further, insists that the statute in question is violative of sections 11, 171, and 174, of the constitution of the state, and of the fourteenth amendment to the federal constitution, in that the license tax levied upon the owners of automobiles, at the same time and for the same period that an ad valorem tax is, also, levied upon them, imposes upon them a double taxation. Double taxation, however, only arises when the same property is taxed twice, when it ought to have been taxed but once, and the second tax must be imposed upon the same property by the same authority during the same taxing period. 37 Cyc. 753-754. The. license tax, however, authorized by the statute, in question, is not a tax upon the property in the motor vehicle, but it is a tax upon the privilege of using the vehicle upon the public roads. It has been continuously held, both in this state and elsewhere, that a license tax for the exercise of a privilege is not double taxation, although the property, which is used in enjoying the privileges, bears an ad valorem tax, and there is no constitutional objection to the levying of both. San Francisco v. Fry, 63 Cal. 470; Chesebrough v. San Francisco, 153 Cal. 564; Ex Parte Schuler, 139 Pac. 685; State v. Jones, 9 Idaho, 693; St. Louis v. Bircheor, 7 Mo. App. 169; Morgan v. Commonwealth, 98 Va. 812; Kane v. State, supra; State v. Ingalls, supra; Levi v. City of Louisville, 97 Ky. 398; City of Covington v. Wood, 17 R. 927. In Berry on Automobiles, section 90, is as follows:
“The requirement of uniformity and equality in taxation applies only to taxes in the proper sense of the word, levied with the object of raising revenue for general purposes, and not to such as are an extraordinary and exceptional kind, and is under a constitutional pro*300 vision, providing for equality in taxation, to 'be restricted to taxes on property, as distinguished from such as are levied oh occupations, business or franchises, and as distinguished from exactions imposed in the exercise of the police power rather than the power of taxation.”
Neither does the imposition of a license tax upon one privilege and not upon another create any inequality of taxation, when all of the persons engaged in exercising the taxed privilege bear the burden alike, nor when those following the same calling are divided into classes for the purpose of taxation, provided the classification is reasonable and founded upon a real distinction and not merely an arbitrary one. 37 Cyc. 732; Hager v. Walker, 128 Ky. 1; Schuster v. Louisville, 28 R. 588. The license tax in the instant case'is imposed upon all the persons who use motor vehicles upon the public highways, in accordance with a distinct and real classification. The Supreme Court of the United States, in the case of Kane v. State, supra, and in Hendrick v. Maryland, supra, held that a license tax imposed upon a non-resident owner of an automobile for the use of the public roads by virtue of the police power of the state, although the statute, which imposed it graduated the tax upon the basis of the horse'power of automobiles, the imposition of such a tax was not any violation of the fourteenth-amendment as to its “due process” clause. If not in violation of the due process clause when applied to the citizens of another state, it surely would not be liable to that infirmity when applied to a citizen of the state, which enacts and enforces the statute.
The judgment is, therefore, affirmed.