Lead Opinion
(After stating the above facts.) The execution involved in the present case issued under the provisions of the act approved December 24, 1937 (Ga. L. Ex. Sess. 1937-38, pp. 259 et seq.; Code (Ann. Supp.), §§ 92-2901 et seq.), which states in part: “For the purpose of this law, the following definitions shall *592 apply: (A) Motor bus. Any passenger-carrying motor vehicle having a passenger-seating capacity of eight or more persons. . . The annual fees for the licensing of the operation of vehicles shall be as follows for each vehicle registered: . . (9) Motor busses. For each motor bus (used as a common or contract carrier for hire), the following: . .” The fee for each bus is determined by its factory weight.
It will be observed that this act does not define “vehicle” or “motor vehicle,” and the plaintiff in fi. fa. earnestly insists that these terms as used in this act should be given the meaning provided in the act of 1927 (Ga. L. 1927, p. 227; Code, § 68-101), which states in part: “For the purpose of this law, the following definitions shall apply: ‘Vehicle’ — Any contrivance used for transportation of persons or property on public highways. ‘Motor vehicle’ — Any vehicle, except tractors, propelled by power other than muscular power, not operated exclusively upon tracks.” The defendant in fi. fa. contends that, since the terms “vehicle” and “motor vehicle” are not defined in the act approved December 24, 1937, in construing this act, these terms should be given their usual, ordinary, and popular meaning, and that when this is done, the trackless trolleys in question are not within the provisions of that act. In considering this question, we quote from the well-prepared and able opinion filed by Judge Almand, who tried the case in the court below, without the intervention of a jury: “Conscientious and diligent counsel for the State argue with great ability and sincerity that, under the definition of a ‘motor bus’ in the acts of 1937-38, and of the words ‘vehicle’ and ‘motor vehicle’ in the act of 1927 (Code, § 68-101), it makes no difference how the passenger-carrying vehicle of more than eight persons is propelled, whether by its own power or from power received from outside sources, for as long as such vehicle does not run on tracks, it is a ‘motor vehicle,’ and therefore a ‘motor bus.’ These definitions, standing alone, do seem to justify the State’s position, but when the legislative history and context of the licensing acts in regard to motor vehicles, their regulation as to the use of the public highways, and the statutory methods of taxation are examined, we find these statutes include only those vehicles operated or drawn by its own self-propelled power. We think that a brief review of the legislative history as to the licensing and regulation *593 of automobiles or motor vehicles, as well as a review of the contemporaneous development and use of motor busses and trackless trolleys will demonstrate that the licensing and regulating statutes as are now contained in chapter 68-1 of the Code of 1933 only apply as to those vehicles that are capable of being operated generally over the public highways and roads of this State by reason of their own self-propelled mechanical power, and not to those vehicles whose orbit of operation is limited to the length of a trolley wire constructed and maintained under a franchise.
“The first comprehensive law dealing with the registration of automobiles was enacted in 1910 (Ga. L. 1910, p. 90). The act was entitled ‘An act to regulate the running of automobiles, locomotives, and other vehicles and conveyances of like character, propelled by steam, gas, gasoline, electricitjr, or any power other than muscular power, upon the public and private roads of the State of Georgia.’ Every vehicle paid the same registration fee, and there were no distinctions or differences made as to passenger cars, trucks, etc. Apparently at that time there were no such vehicles known as ‘trucks, trailers, or busses.’ In 1915 (Ga. L. Ex. Sess. 1915, p. 107) a new and comprehensive registration, regulation, and license act was passed, the caption being ‘An act providing for the annual registration and identification of motor vehicles and motorcycles.’ The term ‘motor vehicles’ was defined as ‘all vehicles propelled by power other than muscular power except road rollers, traction engines, railroad and railway cars, and motor cars running only upon stationary rails or tracks.’ There was a schedule of fees which each machine had to pay, which was rated upon the horsepower of the machine. This act also dealt with the regulation as to speed, and use of highways by motor vehicles. It will thus be seen that, whereas the act had formerly dealt with the term ‘automobiles,’ the growth of the motor car had been such that the word ‘automobiles’ included other types of machines, and they were all described as ‘motor vehicles.’ It is also observed that this act, like the act of 1910, dealt with motor vehicles that used the highways and public roads generally.
“In 1927 (Ga. L. 1927, p. 226) there was enacted another comprehensive motor vehicle act, which is now codified in chapter 68-1 of the Code of 1933. The title of this chapter is ‘Motor Vehicles.’ Part 1 deals with the licensing, registration, and *594 operation of motor vehicles, and part 2 deals with the motor-vehicle transportation under three categories, namely: motor contract carriers, motor common carriers; and motor vehicles for hire, regulated. The caption of the act of 1927 is ‘An act to amend an act known as the Georgia Motor Yehicle Law, approved November 30, 1915, and as amended by subsequent acts/ It will be seen from this act that it not only defines a ‘vehicle’ and ‘motor vehicle,’ but defines specific, classes of motor vehicles which are subject to licensing and registration, namely, motorcycles, tractors, trailers, and trucks. License fees on passenger cars were based upon the weight of the machine. On non-passenger cars, the tax was graduated according to the tonnage capacity of such car. There is no mention in this act of the term ‘motor bus.’ Apparently, in 1927 the term ‘motor bus’ had not developed to an extent that it had a separate classification for registration and license purposes from that known as ‘passenger-carrying motor vehicles.’ This act dealt extensively with regulations of the use of the highways as to speed, rules of the road, etc., and the restrictions as to speed were regulated according to the weight of the vehicle and the character of the tires — whether metallic, solid, or pneumatic.
“At the regular session of the General Assembly in 1937 (Ga. L. 1937, p. 155) an act was passed ‘To provide for the levy of a tax to be known as a maintenance tax to be paid by the owners of motor busses, trucks, and/or trailers, operating over the public roads of this State; to repeal chapter 92-29 of the Georgia Code of 1933/ This act defines a motor bus as ‘any passenger-carrying motor vehicle, having a passenger-seating capacity of eight or more persons.’ . . This act sets up a schedule of taxes on busses, trucks, trailers, . . graduated according to the weight of the vehicle. It provides for the method of registration in obtaining tags, and does not in any manner deal with the use of the highways as to. speed, etc.
“At this same session, the legislature passed acts dealing with motor carriers and motor common carriers (pp. 727-30).
“At the 1935 session, the act of 1927 was amended so that all motor vehicles were required to pay a flat tax of $3.
“At the 1937-38 Extra Session (Ga. L. 1937-38 Ex. Sess. p. 259), the legislature passed an act which was entitled ‘An act to
*595
amend title 68 of the Code of 1933 by striking all of section 68-211 of said title and chapter, which provides a schedule of annual fees for motor vehicles.’ In the body of the act, section 1 repeals section 68-211 of the Code, which section provides a schedule of annual fees for vehicles; and section 2 repeals the maintenance tax act of the 1937' regular session. Section 3 is identical with section 2 of the previous 1937 maintenance tax act, in defining motor busses, trucks, and trailers, except for a part of the definition of a trailer that is not carried forward in this act. This act then fixes a licensing and registration schedule for passenger cars) trucks, trailers, etc., graduated according to the weight of the car. The act provides for registration and issuance of licenses, and there is a general repeal clause. There is nothing in this act that deals with the regulation and use of highways and apparently what this act does is to take from section 68-1 [68-2] of the Code all matters dealing with [the schedule of annual fees for the] registration and licensing of motor vehicles, repealing the maintenance act of 1937, and thereby putting into one comprehensive law [the fees to be collected for] the licensing and registration of all motor vehicles used on the public highways. Though the caption of the act says that it is an amendment to section 68-1 [68-2] of the Code, there is nothing in the body of the act which indicates that it was the purpose of the legislature to treat this act in its entirety as an amendment to section 68-1 [68-2] or to become a part of said chapter. It is apparent that there was no effort to carry forward into the act of 1937-38 all the definitions set forth in section 68-101, for the reason that it specifically picks out
only three vehicles
for classification, to wit: motor-busses, trueles,
and
trailers, and of these, trucks and trailers are defined in section 68-101. It is thus apparent, by the enactment of a comprehensive law dealing with [annual fees for] registration and licensing of motor vehicles, the legislature impliedly repealed any and all provisions of Chapter 68 that dealt with [annual fees for] registration and licensing of motor vehicles. Compare
City of Atlanta
v.
Goodman,
183
Ga.
834 (
While the act approved December 24, 1937 (Ga. L. Ex. Sess. 1937-38, p. 259; Code (Ann. Supp.), §§ 92-1901 et seq.), was entitled an amendatory act, it did not purport to be merely cumula
*596
tive or auxiliary to the former act on the same subject, but it was a comprehensive act covering the entire subject of the levying of annual license fees for the registration and licensing of the operation of motor vehicles, and it was evidently intended by the legislature as a complete revision of and substitute for the former acts in so far as they dealt with fixing the annual license fees for the registration and licensing of the operation of motor vehicles. “It is a familiar and well-settled rule that a subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express ’words to that effect, must operate to repeal the former one to the extent to which its provisions are revised and supplied. ' This is true, even though the subsequent statute contains no express words of repeal and is not repugnant to the former statute. The revising statute is in effect a legislative declaration that whatever is embraced in the new statute shall prevail, and whatever is excluded therefrom shall be discarded.” 59 C. J. 921. “Thus, where a section which is expressly amendatory of another section of a statute purports to set out in full all it is intended to contain, any matter which was in the original section, but is not in the amendatory section, is repealed by the omission.”
In 42 C. J. 609, a motor vehicle is defined as “a vehicle operated by power developed Vithin itself and used for the purpose of carrying passengers or materials.” Another definition is that a motor vehicle is “a vehicle moved by inanimate power of any description, generated or stored within it, and intended for the transportation of either goods or persons on common highways.” American-LaFrance Fire Engine Co. Inc.
v.
Riordan, 6 Fed. 2d, 964. In the present case, the electricity which causes the movement of the trackless trolleys is neither generated nor stored within the trolleys, but is derived from outside sources by means of contact of the trolley poles with electric wires bringing the electricity from stationary plants which generate it. In the recent case of
Georgia Power Co.
v. Clark, 69
Ga. App.
273, 276 (
The manifest purpose of the act of December 24, 1937, was to require each motor vehicle capable of operating generally over the highways and roadways of this State to be registered and a license obtained for its operation. When speaking of a motor vehicle on the highways and roadways of this State, one does not, in the usual sense, have in mind a trackless trolley whose power is derived from outside sources, and whose travel is limited to within a few feet on either side of previously constructed electric wires with which contact must be maintained at all times by such trackless trolley; but one has in mind other means of travel or transportation, such as automobiles, motorcycles, trucks, busses, or other vehicles which are capable of traveling generally over the highways and roadways of this State, and the motive power of which is either stored or generated within them.
The argument of counsel for the plaintiff in fi. fa., that, to hold that trackless trolleys are not within the provisions of the act approved December 24, 1937 as amended (Code, Ann. Supp., §§ 92-2901 et seq.), would render the act unconstitutional because of lack of uniformity upon the same class of subjects, is untenable. While all taxation shall be uniform.upon the same class of subjects within the territorial limits of the authority levying the tax, this does not mean that the State can not make fair and reasonable classifications of property for taxation. There is a substantial difference between trackless trolleys, which operate on fixed and» limited routes, the motive power of which is derived from sources outside the trolleys, and which may be operated only where overhead electric wires have been previously constructed, and motor busses the motive power of which is stored or generated within them, and which may be operated generally over the highways and roadways of this State.
It will be observed from a study of the various acts relative to the licensing and operation of automobiles Sind motor vehicles in' this State, that the terms “motor vehicle” and “automobile,” as used in our statute law, are practically synonymous. A passenger car, a truck, a tractor, or a motor bus are each a different kind of automobile and are each included within the general terms “motor vehicle” and “automobile.” The word “automobile,” which was *600 generally used to designate this type of vehicle, comes from the Greek word “autos” meaning “self” and the Latin word “mobilis” meaning “mobile” or “capable of moving,” and hence the word “automobile” literally means “self-moving” or “self-propelled,” and a passenger car, a truck, a motor bus, and a tractor are each self-moving .or self-propelled vehicles. However, a trackless trolley was not derived from automobile, nor is it a kind of automobile, but it is a distinct and different type of vehicle. The word '“trolley” comes from the middle English word “trollen,” old French “troller” which meant to roll or to wander about, and, while it had other meanings, came to refer to several types of small vehicles including those used in shops and mines which ran on overhead wires or rails. In this sense, it came to refer to streetcars which ran on rails and which drew their propelling power from overhead electric wires. “Trolleycar” and '“streetcar” are thus synonymous terms and mean a vehicle operating on rails which draws its power from stationary plants by means of contact with electric wires constructed over, or sometimes under, the rails on which it operates. From streetcar came the trackless trolley. The power-propelling system is the same for each. A trackless trolley derives its power from stationary plants through contact with overhead electric wires, the main difference between a streetcar and a trackless trolley being that a streetcar operates only on rails, while a trackless trolley operates on pneumatic tires. While an automobile is self-propelled, in that it carries its source of power within itself, a trackless trolley is propelled by the use of power received from outside sources by means of contact with overhead electric wires. Hence, a trackless trolley is not an automobile or a motor vehicle within the generally accepted meaning of those terms.
The error, if any, in allowing the amendment to the affidavit of illegality without the affidavit required by the Code, § 39-1005, was harmless, since it appeared under the evidence that the trackless trolleys were not subject to the license fees for which the execution issued. The judgment in the cause would have been the same whether the amendment had been allowed or not, and, hence, the allowance of the amendment had no substantial bearing on the case..
Marsh
v.
Hix,
110
Ga.
888 (
The findings of fact by the trial judge, trying the case without the intervention of a jury, are supported by evidence, no error of law appears, and the judge did not err in overruling the motion for a new trial as amended.
Judgment affirmed.
Concurrence Opinion
concurring specially. The first question for decision is whether under the act of 1937 there is a statutory definition of motor vehicle, and if so then the question arises as to what that definition was intended to include. The majority opinion holds that there is no statutory definition of motor vehicle under the act of 1937 or prior acts, because the act of 1937 repealed all other definitions of motor vehicles in laws relating to licensing of vehicles, etc., and pitches its conclusion on the general definition of “motor vehicles.” The purposes of the act of 1927 (Ga. L. 1927, p. 226), are stated in the caption of the act as follows: “An act to amend an act known as the ‘Georgia Motor-Vehicle Law/ approved 'November 30, 1915, and as amended by an act approved August 20, 1918, and as amended by an act approved August 16, 1919, and as amended by an act approved August 15, 1921; to provide for a Commissioner of Vehicles; to define terms used; to provide for registration of motor vehicles, tractors, trailers, dealers, and manufacturers of motor-vehicles, and chauffeurs, and to provide fees for said registration; to describe number plates and provide for fastening them on certain vehicles; to provide for the regulation of lights and brakes to be used; to regulate the use of highways by vehicles registered in another State; to provide traffic regulations; to regulate size, weight, and type of wheels of certain vehicles; to provide for regulation of motor-vehicles by municipalities; to provide for the expense of registration and the disbursement of fees received; to prescribe duty and salary of registration clerk and salary of Commissioner of Vehicles; to prohibit throwing certain things on the highways; to provide for the enforcement and penalties for violation of this act; and to repeal all laws and parts of laws in conflict with this act, and for other purposes.” The act of 1927 contained the following definitions: “‘Vehicle’ — Any contrivance used for
*602
transportation of persons or property on public highways. ‘Motor-vehicle’ — Any vehicle, except tractors, propelled by power other than muscular power, not operated exclusively on tracks. ‘Motorcycle’ — Any motor-vehicle having but two main wheels in contact with the ground, upon which the operator sits astride. A motorcycle may carry a one-wheel attachment generally known as a sidecar. ‘Tractor’ — Any
self-propelled
vehicle designed for use as a traveling power-plant or for drawing other vehicles, but having no provision for carrying loads independently. ‘Trailer’ — Any vehicle without motive power, designed for carrying persons or property either partially or wholly on its own structure and for being drawn by a
self-propelled
vehicle, except those running exclusively on tracks. . . ‘Trucks’ — ‘or non-passenger carrying motor vehicles’ — A motor vehicle for the transportation of property.” These definitions are embodied in the Code of 1933, § 68-101. At this point it is well to say that it seems undebatable that the legislature by the 1937 act intended to substitute the enactments therein as to fees and registration, etc., in lieu of the laws stricken and repealed thereby. It did not intend to discard the definitions, contained in the previous acts and the 1927 act codified, which were necessary then and now for the
general
purposes of the previous acts and the act of 1927 codified and the
limited
purposes of the act of 1937. It seems to be reasonable to conclude that the legislature’s intention was to retain all of the definitions contained in the 1927 act codified and previous acts, except as
changed and added
to by the act of 1937. There is a vast difference between the effect of amending a Code section and a legislative act uncodified. In amending a Code
title
by striking a section which provides for fees and providing for new fees, it does not matter whether the amendment explicitly states that the new section shall take the place of the old. The new section becomes a part of the title and the whole as amended must be followed. “Where a new section of a statute is substituted for an old one, other statutory provisions relating to the old one, and not inconsistent with the new one, remain in force and are applicable to the latter.” 50 Am. Jur. § 553, p. 558. If it can be said that the act of 1927 superseded all previous acts, in that it was so comprehensive as to include all previous subject-matters, this is not true of the act of 1937, because it dealt with certain specific subject-matters and
*603
not with the
whole general subject-matter
which had been codified and later amended. In the 1937 act, it is provided: “For the purpose of this act the following definitions shall apply: A. Motor-Bus. Any passenger-carrying motor vehicle having a passenger seating capacity of eight (8) or more persons. B. Trucks. A motor vehicle for the transportation of property, which shall include any self-propelled vehicle designed for use as a traveling power plant or for drawing other vehicles but having no provision for carrying loads independently, except what are known as farm tractors. C. Trailer. Any vehicle without motive power, designed for carrying persons or property either partially or wholly on its own structure and for being drawn by a self-propelled vehicle and operated over the public roads of this State.” It will be observed that the definition of a
motor bus
is a new definition, not included in the 1927 act, and simply distinguishes between automobiles and busses. The definition of a trailer was amended to provide that it should be operated over the highways. It is unthinkable that the legislature, by making these slight changes in the old definitions, intended to abandon the old ones and then proceed to fix fees and charges based on the old definitions, or based on general definitions, the meaning of which would be uncertain and subject to judicial determination at a future time. The fact that the 1937 law was not put in the place of the repealed sections in the Code Pocket Parts, but were placed under title 92 (Public Bevenue) means nothing. Such placing was doubtless the result of the fact that by the reorganization act (G-a. L. 1931, p. 34, § 84), the duties of the commissioner of motor vehicles were transferred to the State revenue commission and the office of commissioner of motor vehicles was abolished. Be that as it may, it is not where the law is but what the law is that is important. It seems to me that the conclusion is demanded that there was no intention to abandon the definitions of the 1927 act by implication, and the citations of the majority opinion do not, to my mind, support its conclusion under the facts of this case.
Shipp
v.
Georgia Power
Co., 67
Ga. App.
867, 872 (
The caption of the act of 1937 states that its intention' is to amend title 68, chapter 68-2 of the Code of 1933 by striking all of section 68-211 “and inserting in lieu of
*604
section 68-211 . .
so as to provide a new schedule of fees
for all motor vehicles, including automobiles, motorcycles, busses, trucks, trailers, and semi-trailers, ambulances, and hearses, etc.” Section 4 of the act, which provides for the new schedule of fees, does not specifically state that it is enacted in lieu of the Code, § 68-211, but if there is a doubt as to the meaning of the act in this respect, the caption can be looked to, to ascertain the meaning of the act. It is not necessary that there be ambiguous terms or words in the act.
State Board of Education
v.
Board of Education of Richmond
County, 190
Ga.
588 (
The question then is, does the definition of a motor vehicle in the 1927 act (Code, § 68-101) include a trackless trolley? In my opinion, construing the definition in the light of the act as a whole, it does not. The first comprehensive act on the subject of registration of and regulation of operations of motor vehicles
*605
was passed in 1910 (Ga. L. 1910, p. 90). The caption stated that it was “An act to regulate the running of automobiles, locomobiles, and other vehicles and conveyances of like character propelled by steam, gas, gasoline, electricity, or any power other than muscular power, upon the public and private roads of the State of Georgia.” Section I of the act, among other things, stated that said vehicles would thereafter in the act be called '“machines.” In addition to the use of the word “machines,” in section 9 the act uses the word ’“automobile,” in my opinion synonymously with “machines.” Section 2 provided that the owner of the machine should file with the Secretary of State a statement, among other things, of the name of the maker of the machine, factory numbei,
style
of machine and motor power. Section 7 provides: “That a person operating a machine shall, at request or on signal by putting up the hand or other sign of distress of a person riding, leading, or driving a restive horse or other draft animal, bring such machine immediately to a stop, and if traveling in the opposite direction, remain stationary so long as may be reasonable to allow such horse or animal tó pass, and if traveling in the same direction, . . and in case such horse or animal appears frightened or the person operating such machine is requested to do so, such person shall cause the motor of the machine to cease running so long as shall be reasonably necessary to insure the safety of others.” Construing this act as a whole, I think that it was meant to cover vehicles which were generally called automobiles. An automobile is a
“self-propelled
vehicle suitable for use on a street or roadway.” 1 Blashfield’s Cyclopedia of Automobile Law, p. 2, § 2. It was held in Memphis Street Railway
v.
Crenshaw,
It is worthy of • note that, where a special-type vehicle other than cylinder-operated vehicles was to be included, the General Assembly did not leave the classification and registration of such conveyance to be covered by the general definition of vehicle, but
*607
went to the trouble to enumerate and provide for its registration. See G-a. L. Ex. Sess. 1915, p. 109, § 6, wherein it was provided that “for each electric-motor vehicle used for pleasure purposes” a fee of four dollars was to be paid. My conclusion then is, that the legislature in the act of 1927, in defining a motor vehicle, meant a self-propelled motor vehicle, and that a trackless trolley is not included in that term because the power to operate it must come from without
at the time of operation.
I do not think that we can reach the conclusion that such trolleys are not within the definition, by getting rid of the statutory definition. Nor can we do so by saying that a trackless trolley is a streetcar because, if the definition of a motor vehicle included a streetcar, it would be a motor vehicle. Nor did the law permitting the trolleys to be substituted for street-ears furnish a reason for exempting them from the tax if they otherwise come within the definition, because the Code, § 94-1010,' provides that nothing therein contained should exempt trackless trolleys and the operation thereof from any other taxes or licenses now imposed by law. The acts of the legislature did not in their definitions of motor vehicles, as construed from the contexts, include other than self-propelled vehicles. The court has just recently construed another act by its context, and this and similar cases are satisfactory authority for my conclusion.
Gainesville Midland R. Co.
v.
Allen,
72
Ga. App.
736 (
While a New York court did not have the trackless-trolley question before it, it held that a motor vehicle, as defined by a New York statute, included what is generally known as an automobile, and nothing else. That statute defined motor vehicles as
all vehicles propelled by any power other than muscular power,
with certain exceptions, none of which was a trackless trolley or similar vehicle. People
v.
Congress Radio Inc.,