190 P. 922 | Idaho | 1920
Lead Opinion
Appellants were separately charged with, tried for and convicted of violating C. S., secs. 2439 and 2440, which are intended to prohibit common Carriers mentioned in C. S., sec. 2380, subsection 3, from carrying freight or passengers, or both, until they shall have first obtained, under such regulations as may be prescribed by the public utilities commission, licenses and shall have paid therefor a sum of money for each vehicle used, being $25, $30, $40 or $50 per annum, according to its carrying capacity, and shall have given bonds for the benefit of any person injured by the carrier’s negligence. It is further provided that any person operating as such common carrier without first complying with these requirements shall be guilty of a misdemeanor.
That portion of C. S., sec. 2380, necessary to be considered in deciding this case is as follows:
“The term ‘common carrier,’ when used in this chapter, includes:
“3. Every .... person .... owning, controlling, managing, operating, driving or causing to be operated or driven, or holding out by sign, voice or other device or by advertisement that they will drive, operate or cause to be driven or operated over any particular route or routes or over any route or routes or between specified termini for hire or compensation any automobile, auto stage, motor vehicle or motor truck or any other self-propelled motor vehicle for use in the business of carrying either passengers or freight or both, ex
Appellant, Koll, owned automobiles and operated them in the transportation of passengers for hire, and appellant, Crosson, owned motor trucks and operated them in the transportation of freight for hire, and neither was so engaged in business as to entitle him to come within either of the exceptions mentioned in the statute, nor had either conformed to the requirements above mentioned in the matter of procuring a license or giving a bond.
The cases were consolidated and heard together in this cotirt. Among the contentions made by appellants is that the statutes above referred to violate art. 1, sec. 13, of the constitution of Idaho, which provides: “No person shall .... be deprived of life, liberty or property without due process of law.”
The tax sought to- be exacted by the statute under consideration was not levied upon the property of appellants, nor was it demanded of them, because of their use of the public highways with their vehicles. It is an occupation tax and the regulations sought to be impdsed upon the class of persons mentioned in C. S., sec. 2380, subsection 3, to which appellants belong, are so sought to be imposed for the government of that class. As is said in respondent’s brief: “The license fee prescribed by the statute under consideration is placed not upon the operation of the motor vehicle upon the road as such, but is a license tax upon the business in which the motor vehicle operating as a common carrier is engaged.”
A law which is made applicable to one class of persons alone must be based on a substantial difference between the situation of its members and that of those to whom it does not apply. (6 R. C. L., p. 381, sec. 374; 12 C. J., p. 1133, sec. 857; p. 1136, sec. 860; People v. Gillson, 109 N. Y. 389,
This law expressly exempts hotel buses operating solely between hotels and trains and automobiles and auto trucks used for and engaged in carrying United States mails on star routes. It is not necessary in order that the owner of an automobile being used as a bus between a hotel and trains shall also own or operate the hotel, or that he shall confine his business of carrier to the transportation of its guests or convey them or their baggage free of charge, in order that he may escape the burdens of the law, and the owner of such a vehicle employed in transportation of the United States mails over a star route may use it in the transportation of passengers and freight for hire without procuring the license, giving the bond, conforming to the regulations, or incurring the penalty mentioned in the law.
These sections purport to impose on a certain class of persons engaged in the transportation of passengers and freight for hire burdensome taxes and regulations and to exempt therefrom others engaged in the same business. No justification or reason exists for the classification, and the statutes which appellants were convicted of violating must
The -judgments appealed from are reversed, with instructions that the eases be dismissed.
Concurrence Opinion
I concur in the conclusion reached, but in my opinion O. S., sec. 2380, is unconstitutional for the reason that it is discriminatory in that it attempts to establish an arbitrary, unreasonable and unjust classification, and therefore violates the provision of the fourteenth amendment to the federal Constitution that “No state shall .... deny to any person within its jurisdiction the equal protection of the laws.”
