166 P.2d 812 | Or. | 1946
Lead Opinion
IN BANC. Mandamus by the state of Oregon, on relation of Frank Bouthillier, sole trader, doing business under *354 the name and style of Bouthillier Motor Company, against Robert S. Farrell, Jr., Secretary of State, to test the constitutionality of certain provisions of a statute. From an adverse judgment respondent appeals.
AFFIRMED. REHEARING DENIED. This is a proceeding in mandamus, instituted by the relator against the defendant Secretary of State, to test the constitutionality of certain provisions of chapter 469, Oregon Laws 1937, (sections 115-701 to 115-706, inclusive, O.C.L.A.)
Under this act, any person who brings a used motor vehicle into the state of Oregon for the purposes of sale or resale is required, before a license or registration card is issued for the vehicle and before it is offered for sale or sold, to file with the secretary of state a bond in a sum not less than the sale price of the vehicle but not exceeding $1,000, conditioned that such person shall pay to the vendee of the vehicle all loss, damage and expense that the latter may sustain by reason of failure of the title of the vendor, or by reason of any fraudulent representations or breach of warranty as to freedom from liens, quality, condition, use or value of the vehicle. The act requires further the payment of a fee of $1.00 for registration of the imported vehicle, and an additional fee of $5.00 on the filing and approval *355 of the bond. Such fees are to be deposited by the secretary of state in the state treasury "as are and together with other funds under the provisions of section 55-1111, Oregon Code 1935 Supplement, (section 115-135, O.C.L.A.) to be disbursed as therein provided".
The relator is a dealer in used automobiles. He purchased one such in the state of Washington and brought it into Oregon for the purpose of resale. He made application to the secretary of state for a registration certificate under section 115-102, O.C.L.A., and for a certificate of title under 115-114, O.C.L.A., tendering the necessary fees and furnishing the secretary of state with evidence that he was the legal and registered owner of the vehicle. The secretary of state, however, declined to register the vehicle or to issue a certificate of title thereon unless the relator should file the bond and pay the additional fees required, as above mentioned, by chapter 469, Oregon Laws 1937. This the relator refused to do. On his petition, the lower court issued an amended alternative writ of mandamus, requiring the secretary of state to register the vehicle and to issue a certificate of title to the relator therefor without requiring the filing of a bond and the payment of additional fees, or to show cause why he had not done so. The defendant demurred to the amended alternative writ on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and, the defendant refusing to plead further, a peremptory writ issued. The secretary of state has appealed to this court.
The appellant contends that the statute under consideration was enacted for the protection of purchasers of used or secondhand motor vehicles, brought into this state from other states, against loss arising through *356
the fact that the vehicles were stolen, or were subject to liens in the state of their origin. Such statutes are designed to protect the public against fraud, a purpose which is within the police power. State v. Thompson,
The relator maintains that the statutory requirements to which he objects violate the due process and equal protection provisions of the Fourteenth Amendment and Article I, section 8, clause 3 (commerce clause), United States Constitution.
Appellant says that the act, in singling out importers of used automobiles as a class to be regulated and imposing upon them burdens which are not laid equally upon other vendors of used automobiles, does not thereby effect an unreasonable classification. State ex rel. Evans v. Kozer,
North Carolina has a statute which is substantially similar to ours, except that the additional fee exacted is $10 rather than $6. In Park McLain, Inc. v. Hoey (E.D.N.C.),
California also has a statute resembling ours. A similar bond is required, and an additional fee of $5. The constitutionality of the statute was tested in Motor Trading Co. v. Ingels
(1941),
In State v. Ernst (1941),
A statute of Alabama resembling ours was construed in State v.Kimbrough (1941),
Appellant maintains that the Oregon act does not contravene the commerce clause, in that it affects interstate commerce only incidentally and indirectly. In support of his contention in this regard, appellant cites 15 C.J.S., Commerce, section 11, and 11 Am. Jur., Commerce, section 94, which, in general terms, set forth the rule of law contended for, as well as its limitations. As illustrative of the rule, appellant cites State ex rel.Leathers v. Coleman (1936),
"Assuming, without deciding, that, by reason of their mobility, and the prevailing customs in the automobile business, the stolen car, or the incumbered car brought into Alabama for sale may present such a public evil as to warrant appropriate regulations for the public welfare, and, that, in such event, a measure of legislative discretion obtains in devising suitable regulations, they may not arbitrarily and needlessly discriminate against the products of other states by imposing burdensome conditions which greatly obstruct the movement of legitimate articles of commerce into this state, if *361 not virtually shut out sales of used cars from other states in competition with used cars originating in this state, or brought into this state for purposes other than resale. We are in full accord with the holding in the Park McLain case above quoted, which has been approved and followed by all the courts thereafter dealing with such statutes. As pointed out in these decisions, the fact that the car has come to rest, and ceased to move in interstate commerce, is not in point. This statute forbids such cars taking their place alongside other used cars for resale free from all such restrictions."
The prevention of possible fraud, which is the intended purpose of the law, is not, in itself, sufficient to justify an interference "with the free flow of legitimate interstate commerce". Real Silk Hosiery Mills, Inc. v. Portland,
In our opinion, the provisions of the statute with respect to the furnishing of a bond by importers of used motor vehicles for sale are so onerous as to place such persons in an arbitrary and unreasonable classification, as compared with vendors of used motor vehicles which have their origin in this state, who are not subjected to similar requirements. In that respect, we hold the statute invalid, as effecting a violation of the commerce clause of the Constitution of the United States. Cf. State v.Jacobson,
We find nothing in Martin v. O.R. N. Co.,
The judgment appealed from is affirmed, without costs to either party.
Addendum
Because of lack of a sufficient statement of facts, we declined to pass upon the reasonableness of the required additional fees. In effect, however, we did pass upon their validity. The peremptory writ of mandamus, from which the appeal was prosecuted, commanded the defendant to register relator's imported used motor vehicle and to issue a certificate of title therefor to him, without requiring him to file a bond or to pay additional fees. Our decision affirmed the lower court in toto.
We omitted to state, however, which we now do, that, in our opinion, the provisions of the act which impose additional fees on importers are inseparable from those requiring them to file bonds. Such provisions, therefore, must fall together. A discussion of the reasonableness of the fees is unnecessary.
The petition for rehearing is denied. *363