STATE OF KANSAS, Appellee, v. ROGER A. MOORE, Appellant, and STATE OF KANSAS, Appellee, v. CHARLES H. POWERS, Appellant.
No. 57,051
Supreme Court of Kansas
June 21, 1985.
701 P.2d 684
Dwight J. Parscale, of Topeka, argued the cause and was on the brief for appellants.
Arthur R. Weiss, assistant district attorney, argued the cause, and Robert T. Stephan, attorney general, and Gene M. Olander, district attorney, were with him on the brief for the appellee.
The opinion of the court was delivered by
PRAGER, J.: This is a direct appeal by two defendants who were convicted of operating an overweight motor vehicle in violation of
At the trial, the evidence was uncontested that the Department of Revenue had established its temporary weighing scales outside the landfill and was requiring all private trash haulers to pull in and have their trucks weighed, some as many as three times in a day. In addition, certain trucks belonging to the Shawnee County Refuse Department were also pulled over and weighed and then allowed to proceed, even though sоme were overweight, because they were exempt under the statute as vehicles owned by a political subdivision. It was further uncontested that, as a result of the exemption from weight restrictions under
At the trial, it wаs further agreed that all garbage trucks were pulled over and that no officers or agents had followed any of the trucks that were ticketed or stopped along their routes, nor did any of the officers or agents observe any of the loads prior to their being stopped at the temporary weigh station located south of the Topeka landfill. The parties agreed that the overweight tickets issued were not always issued on the first or even second trip through the scales when the trucks were not overweight but on a later trip when the driver actually went through thinking that, because he did nоt have a full load, he would not be overweight. Following the filing of the charges, the defendants entered pleas of not guilty in the two criminal cases. A joint trial was conducted by an assigned district magistrate judge, who found both parties to be guilty but imposed no fines when he was informed that the decision was to be appealed. The case was then presented on appeal before Judge E. Newton Vickers where each conviction was affirmed and fines were assessed. The defendants jointly appealed their convictions to this court.
At the trial of the cases, each of the defendants raised two issues:
(1) Whether the agents of the Department of Revenue had probable cause, as required by K.S.A. 8-1910 , to require the two trash trucks to stop and submit to a weighing on the scales which were provided.- (2) Whether the exemption of county owned trash trucks from the weight requirement of
K.S.A. 1984 Supp. 8-1908 constituted an unreasonable and discriminatory classification in violation of the equal protection clauses of the United States and Kansas Constitutions.
The district court rejected both of these contentions and found each of the defendants guilty. The same issues are raised on the appеal.
The first issue to be determined is whether the Department of Revenue agent had the right to set up a temporary scales position outside the landfill and to stop the trash trucks and require them to be weighed. Before considering the facts of this case, it would be helpful at the outset to consider the various Kansas statutes which are involved.
In this case the defendants were charged with the violation of
“(a) The secretary of transportation with respect to highways under the secretary‘s jurisdiction and local authorities with respect to highways under their jurisdiction may, in their discretion, upon application in writing and good cause being shown therefor, issue a special permit in writing authorizing the applicant
to operate or move a vehicle or combination of vehicles of a size or weight of vehicle or load exceeding the maximum specified in this act or otherwise not in conformity with the provisions of this act upon any highway under the jurisdiction of the party granting such permit and for the maintenance of which said party is responsible: Provided, No permit shall be required to authorize the moving or operating upon any highway of farm tractors, combines, fertilizer dispensing equipment or other farm machinery, or machinery being transported to be used for terracing or soil or water conservation work upon farms, or vehicles owned by counties, cities and other political subdivisions of the state, unless such moving or operating occurs at any time from a half hour after sunset to a half hour before sunrise: Provided, The equipment referred to in the preceding proviso shall not be permitted to travel on interstate highways . . . .” (Emphasis supplied.)
It should be noted that the statute quoted above as it existed in October of 1983, when these criminal cases arose, provided that vehicles owned by counties, cities, and other political subdivisions of the state were not required to obtain a special permit or comply with the gross weight requirements except after hours of darkness, with a further limitation that such vehicles were not permitted to travel on interstate highways.
In 1984,
The enforcement of vehicle weight laws is specifically covered in
“Any such agent or employee of the department of revenue and any officer of the state highway patrol are authorized and empowered to inspect any motor vehicle required by law to comply with any of the laws referred to in
K.S.A. 66-1318 , and rules and regulations relating thereto.”
“The secretary of revenue shall have authority to regulatе the operation of motor carrier inspection stations under the secretary‘s supervision and control, including, when necessary to the enforcement of any laws relating to the operation or registration of motor carriers within this state, the authority to require all motor carriers, trucks or truck tractors to stop at any such inspection station to submit to inspection for compliance with any of the laws which the secretary is charged by this act with the duty to enforce.”
At the very end of
“Nothing in this section shall be construed as prohibiting the secretary of revenue, any properly designated agent or employee of the department of revenue, the superintendent of the highway patrol or any member of the state highway patrol from stopping any or all motor carriers, trucks or truck tractors for the purpose of conducting spot checks to insure compliance with any state law relating to the regulation of motor carriers, trucks or truck tractors.”
One additional statute which should be mentioned is
In State v. Williams, 8 Kan. App. 2d 14, 648 P.2d 1156 (1982), it was held that a warrantless search of a motor vehicle authorized to transport property for hire which was stopped by an officer of the Kansas Highway Patrol solely to conduct a search under
“The secretary of revenue is hereby authorized to designate сertain department of revenue employees upon each of whom there is hereby conferred the authority of a police officer to control, direct and to weigh traffic on the highways, and to make arrests for violations of the vehicle laws relating to the size, weight and load of vehicles and combinations of vehicles.”
This section, together with the other statutes mentioned here-
The defendants’ second point on the appeal is that the exemption of county owned trash trucks from the weight requirements of
The State takes the position that a classifiсation of motor carriers and trucks which makes a distinction between private vehicles and publicly owned vehicles is a legitimate classification and does not violate equal protection of the laws. We should first consider the test which must be applied to determine whether a statutory classification violates equal protection of the laws. The reasonable basis test is the yardstick under which a
“Thе constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State‘s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
Where a statute is attacked on the basis that it denies equal protection of the laws, the statute is cloaked with a presumption of constitutionality. Such being the case, the burden of proof falls on the one attacking the statute to sustain the burden of proof. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 55 L. Ed. 369, 31 S. Ct. 337 (1911); Henry v. Bauder, 213 Kan. 751, 753, 518 P.2d 362 (1974); Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 519, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103 (1983).
In Dandridge v. Williams, 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970), reh. denied 398 U.S. 914 (1970), it was stated:
“If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. National Carbonic Gas Co., 220 U.S. 61, 78.” (p. 485.)
In Henry v. Bauder, 213 Kan. at 753, this court observed:
“A classification employed in the exercise of police power cannot be made arbitrarily. Any distinctions inherent in a particular classification must furnish a proper and reasonable basis for such a classification. The concept of equality of all citizens under the law is, of course, basic to our free society. We have stated that classifications may not be created arbitrarily, discriminatorily or unreasonably, or the principle of equality would be violated. There must be some difference in character, condition, or situation, to justify distinction, and this difference must bear a just and proper relation to the proposed classification and regulation; otherwise, the classification is forced and unreal, and greater burdens are, in fact, imposed on some than on others of the same desert.”
In Manzanares v. Bell, 214 Kan. 589, 612, 522 P.2d 1291 (1974), we find the following comments:
“It should be noted that this court is not made the superintendent of legislative activity under principles of equal protection. (Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678.) Equal protection principles do not restrain
the normal exercise of governmental power, but only abuse in the exertion of such authority. The principle of equal protection is not offended against simply because the exercise of the power may result in some inequality. (Louisville & Nashville R.R. v. Melton, 218 U.S. 36, 54 L. Ed. 921, 30 S. Ct. 676.) There is no precise application of the rule of reasonableness in classifying, and equality permits many practical inequalities. There need not be an exact exclusion or inclusion of persons and things. (Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 42 L. Ed. 1037, 18 S. Ct. 594.) The state enjoys a wide range of discretion in distinguishing, selecting, and classifying, and it is sufficient if a classification is practical and not palpably arbitrary. (Orient Insurance Company v. Daggs, 172 U.S. 557, 43 L. Ed. 552, 19 S. Ct. 281; Shelton v. Phalen, 214 Kan. 54, 519 P.2d 754; State v. Weathers, [205 Kan. 329, 469 P.2d 292]; Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P.2d 877; Martin v. Davis, 187 Kan. 473, 357 P.2d 782, app. dismissed 368 U.S. 25 (1961); Board of County Comm‘rs v. Robb, 166 Kan. 122, 199 P.2d 530.) . . . To be able to find fault with a law is not to demonstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations . . . . What is best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to . . . judicial review. . . . ’ (Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69, 70, 57 L. Ed. 730, 734, 33 S. Ct. 441.) “In the areas of economic and social legislation, a statutory рlan does not violate the equal protection clause merely because the classifications contained therein are imperfect. (Village of Belle Terre v. Boraas, 416 U.S. 1, 39 L. Ed. 2d 797, 94 S. Ct. 1536; Jefferson v. Hackney, 406 U.S. 535, 32 L. Ed. 2d 285, 92 S. Ct. 1724.) Nor does the equal protection clause require a state to ‘choose between attacking every aspect of a problem or not attacking the problem at all . . . .’ (Dandridge v. Williams, 397 U.S. 471, 487, 25 L. Ed. 2d 491, 503, 90 S. Ct. 1153, 1162.)” (pp. 612-15).
This subject is also discussed in some depth in State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221 (1978).
In State v. Shouse, 8 Kan. App. 2d 483, 660 P.2d 970 (1983), the defendant was convicted of driving an overweight truck in violation of
There are a number of cases in other jurisdictions where the same basic issue raised in this case was presented for determination. The general rule to be applied in determining the constitutionality of an exemption to statutory limitations on the weight, size, and load of motor carriers and trucks is stated as follows in 7A Am. Jur. 2d, Automobiles and Highway Traffic § 196:
“It has been held or recognized in numerous cases, either expressly or by implication, that the state has the power to enact and enforce reasonable and nondiscriminatory regulations limiting the weight of vehicles or their loads with respect to their use of the highways. The basis for this exercise of the police power is the protection of the highways, for the construction and maintenance of which the state is responsible.
“To be valid, state regulations of the weight of a motor vehicle or the load thereon to be transported must not be unreasonable, arbitrary, or discriminatory in their provisions or operation. But the reasonableness of various types and degrees of statewide weight limitations imposed by states has been usually upheld, the general view being that the statеs have wide legislative discretion in the matter. In numerous cases upholding weight limitations, the courts have rejected contentions of illegal discrimination with respect to classifications differentiating between different types of vehicles, vehicles used in different types of business, freight motor carriers and railroads, trucks and passenger buses, private vehicles and those licensed as common carriers, private vehicles and government vehicles . . . and the like.” (Emphasis supplied.)
There is an annotation in 75 A.L.R. 2d 376 on the power of a governmental unit to limit weight of a vehicle or its load with respect to the use of streets or highways. The annotation cites many cаses which recognize that although, constitutionally speaking, the power of government to impose weight limitations upon vehicles using the highways is limited to nondiscriminatory exercise thereof, contentions that many different kinds of classifications employed constituted invalid discrimination have been almost universally rejected. The cases which involve discrimination as to weight restrictions between private vehicles and government owned vehicles hold universally that such a classification is valid and does not violate equal protection of the laws. The cases have consistently hеld that way for more than fifty years. In the following cases, a state statute restricting the size and weight of trucks was held not to be invalid because
We have concluded that the trial court was correct in holding that the exemption of government owned vehicles from the weight limitаtions of
In conclusion, however, we wish to emphasizе that this decision does not preclude a private trash hauler from seeking the issuance of a special permit to enable it to use larger and heavier trucks for the purpose of providing better and less expensive trash hauling service to the public. There is no evidence in this case to show that the private trash haulers have ever attempted to obtain such a special permit. We only hold in this case that the statutory exemption provided to government owned vehicles under
The judgment of the district court is affirmed.
LOCKETT, J. concurring in part and dissenting in part. I concur with the majority that the Department of Revenue agents had the right to set up a temporary scale position outside the landfill and to stop the trash trucks and weigh them.
I also agree that the majority opinion correctly states the right of the county-owned vehicles to be exempt from weight restrictions when those vehicles are performing a governmental function such as maintenance and repair of the highway or fire and police protection. When a governmental entity‘s vehicles are performing a governmental function there is a legitimate constitutional basis for the classification.
Here the county was not performing a governmental function when collecting trash. It was competing with privately-owned trash companies for the fees to be gained by hauling trash. A statute which allows a governmental trash truck to be exempt from the weight restrictions placed on privately-owned trash trucks, when the governmental entity is competing for fees in a proprietary function, gives the governmental entity an unfair edge in competition.
When a governmental entity engages in an activity of a business nature, such as is generally engaged in by individuals or private corporations, rather than one of a governmental nature, it acts as a corporation, and not in its sovereign capacity. City of Logansport v. Public Service Comm., 202 Ind. 523, 177 N.E. 249 (1931), 76 A.L.R. 838; Greenwood v. City of Lincoln, 156 Neb. 142, 55 N.W.2d 343 (1952), 34 A.L.R.2d 1203.
Accordingly, a governmental entity, when given authority to perform a proprietary function such as engaging in a business enterprise of collecting trash, is expected to perform under rules and regulations like those pursued by private persons or corporations engaged in similar functions and to have full power to perform in the efficient manner of a private person. Seaboard Air Line R. Co. v. County of Crisp of State of Ga., 280 F.2d 873 (5th Cir. 1960), cert. den. 364 U.S. 942 (1961); 56 Am. Jur. 2d, Municipal Corporations § 211.
Where a statute exempts county-owned trash trucks from the weight requirements placed on private trash haulers, that statute violates the defendants’ rights to equal protection of the laws under the United States and Kansas Constitutions. It is not a legitimate public interest to allow a governmental entity an unfair advantage over private individuals or corporations when both are engaged in private business.
HOLMES, J., joins the foregoing concurring and dissenting opinion.