Opinion
No. 31585.
February 25, 1935. Suggestion of Error Overruled April 8, 1935.
1. AUTOMOBILES. Constitutional law.
Statute imposing mileage tax in addition to flat tag tax on motor vehicles traveling more than six thousand miles upon public highways, except trucks of less than two and one-half tons, passenger automobiles, taxicabs, motor vehicles used solely to transport school teachers and children, forest and dairy products, material for road purposes, and motor vehicles used in lieu of street cars between municipalities or by hotels or United States or the state, held not to deny equal protection (Laws 1934, chap. 126, secs. 4, 15-18, and sec. 5, subd. 3; Const. U.S., Amend. 14).
2. CONSTITUTIONAL LAW. Legislature has broad discretion as regards "classification," which is not obnoxious to equal protection clause unless manifestly arbitrary ( Const. U.S. Amend. 14).
"Classification" in law, as in other branches of knowledge, is the grouping of things in speculation or practice because they agree with one another in certain particulars and differ from other things in the same particulars.
3. HIGHWAYS.
State, in protecting its investment in public highways, is not subject to the same restrictions as when dealing with private property not affected with public use.
4. AUTOMOBILES. Constitutional law.
Classification of motor vehicles according to carrying capacity or on mileage basis or putting of passenger vehicles and freight vehicles into separate classes for taxation purposes is not arbitrary or violative of equal protection clause of Federal Constitution (Laws 1934, chap. 126, secs. 4, 15-18, and sec. 5, subd. 3; Const. U.S., Amend. 14).
5. AUTOMOBILES. Constitutional law.
Statute imposing privilege tax on motor vehicles used partially on streets of "municipalities," which are governmental units of the state, held not to deny equal protection, though no part of tax is returned to municipalities (Laws 1934, chap. 126, sec. 1, subd. 9; Const. U.S. Amend. 14).
6. CONSTITUTIONAL LAW.
Courts will not pass on issues of fact in determining whether classification for taxation purposes is justified, but will assume truth of Legislature's findings of fact upon which statute was based, unless contrary is apparent to all reasonable minds.
APPEAL from chancery court of Jones county.
HON. A.B. AMIS, SR., Chancellor.
Suit by the state, on the relation of Greek L. Rice, attorney-general, and Joe S. Price, state auditor of public accounts, against the Evans-Terry Company. From a decree for defendant, complainants appeal. Reversed, and judgment for complainants.
W.W. Pierce, assistant attorney-general, for appellants.
The power of the state to levy and collect taxes exists independently of the Constitution of the United States, and there is no restriction on the right of the legislature to raise funds for the maintenance of roads in this state.
Union Pacific Ry. Co. v. Peniston, 85 U.S. 5, 21 L.Ed. 787; Hager v. Walker, 129 Am. St. Rep. 284; State v. Lawrence, 108 Miss. 291.
The public highways of the state are public property owned by the state and their primary and preferred purpose is for public use in the ordinary way and their use in the furtherance of a commercial business enterprise is special and extraordinary, which the legislature may prohibit on condition as it sees fit.
Packard v. Banton, 264 U.S. 104, 68 L.Ed. 596; Stephenson v. Binford, 287 U.S. 251, 77 L.Ed. 288; Sproles v. Binford, 286 U.S. 374, 76 L.Ed. 1167; Continental Baking Co. v. Woodring, 286 U.S. 352, 76 L.Ed. 1155; Hudson et al. v. Stuart, 166 Miss. 339.
The state in dealing with its own property and in protecting its investment in public roads devoted to a public use is not subject to the same restrictions as when dealing with property of its citizens not affected with a public use.
Packard v. Banton, 264 U.S. 104, 68 L.Ed. 596; Stephenson v. Binford, 287 U.S. 251, 77 L.Ed. 288; Riley v. Ayer Lord Tie Co., 147 Miss. 105.
Chapter 126 of the General Laws of Mississippi 1934, amendatory to House Bill No. 3 of the Acts of the Mississippi Legislature, Extraordinary Session 1932, and chapter 135 of the General Laws of Mississippi 1932, is not unconstitutional and void because of the classifications, exemptions and partial exemptions therein contained.
The provisions of the statute exemption from the permit carrier class, motor vehicles engaged solely and exclusively in transporting school children and teachers to and from public schools, and motor vehicles engaged exclusively in the transportation of agricultural, forest and/or dairy products when such agricultural, forest and/or dairy products are owned by the producer, or where forest products are being transported not exceeding fifty miles in their raw or unmanufactured state or as lumber, and motor vehicles engaged in hauling sand, gravel, dirt, stone and/or aggregate for road building purposes only, and motor vehicles used in lieu of street cars in or between municipalities or by a hotel exclusively for its patrons and employees operating not exceeding fifteen miles from such hotel, and taxi cabs within the city limits of a municipality, or not exceeding three miles therefrom, and motor vehicles used by employees of the United States on official business, and motor vehicles used and operated exclusively by the United States, the state of Mississippi or by its subdivisions, does not render the statute unconstitutional.
Hudson et al. v. Stuart, 166 Miss. 339; Continental Baking Co. v. Woodring, 286 U.S. 352, 76 L.Ed. 1155; Carley Hamilton, and Cottingham et al. v. Snook, 281 U.S. 66, 74 L.Ed. 704; State ex rel. Wisconsin Allied Truck Owners' Assn., et al. v. Public Service Commission of Wisconsin, 242 N.W. 668; Hicklen v. Coney, 290 U.S. 169, 78 L.Ed. 247; Hoover Motors Express Co., Inc., et al. v. Fort, 72 S.W.2d 1052.
The classification of motor vehicles according to carrying capacity does not violate the fourteenth amendment of the constitution of the United States, nor the corresponding section of the state constitution.
Carley Hamilton, and Cottingham et al. v. Snook, 281 U.S. 66, 74 L.Ed. 704; Hicklen v. Coney, 290 U.S. 169, 78 L.Ed. 247; Hudson et al. v. Stuart, 166 Miss. 339.
The selection of a mileage basis in levying a privilege tax on motor vehicles is not violative of the fourteenth amendment of the constitution of the United States.
Continental Baking Co. v. Woodring, 286 U.S. 352, 76 L.Ed. 1155; Columbus Greenville Ry. Co. v. Miller, 283 U.S. 96, 75 L.Ed. 861; Chesapeake Ohio R.R. Co. v. Conley, 230 U.S. 513, 57 L.Ed. 1597; Pullman Co. v. Adams, 78 Miss. 814, 47 L.Ed. 877; Zemurray v. Bouldin, 87 Miss. 583.
The classification of passenger vehicles separately from freight carrying vehicles and levying a tax thereon differently does not violate the state or federal constitution.
Hudson et al. v. Stuart, 166 Miss. 239; Sproles v. Binford, 286 U.S. 374, 76 L.Ed. 1183; Hicklen v. Coney, 290 U.S. 169, 78 L.Ed. 247; Hendricks v. Maryland, 253 U.S. 610, 59 L.Ed. 385; Kane v. New Jersey, 242 U.S. 160, 61 L.Ed. 222; Carley Hamilton, and Cottingham v. Snook, 281 U.S. 66, 74 L.Ed. 704.
Chapter 126 of the General Laws of Mississippi 1934 is not unconstitutional because it imposes a privilege tax upon motor vehicles used exclusively or partially upon the streets of incorporated municipalities even though no part of the tax is returned to the municipalities.
State ex rel. Mitchell v. Jackson, 126 So. 2, 156 Miss. 306; Carley Hamilton, and Cottingham v. Snook, 281 U.S. 66, 74 L.Ed. 704; Nashville, Chattanooga St. Louis Ry. Co. v. Wallace, 288 U.S. 249, 77 L.Ed. 730; Eastern Air Trans. v. South Carolina Tax Commission, 285 U.S. 147, 76 L.Ed. 673; Trinityfarm Construction Co. v. Grosjean, 291 U.S. 446, 78 L.Ed. 918.
The statute is not unconstitutional because all trucks of less than two and one-half tons carrying capacity are not required to have speedometers.
Hudson et al. v. Stuart, 166 Miss. 339; Continental Baking Co. v. Woodring, 286 U.S. 352, 76 L.Ed. 1155; Sproles v. Binford, 286 U.S. 374, 76 L.Ed. 1167; Hicklen v. Coney, 290 U.S. 169, 78 L.Ed. 247; Quong Wing v. Kuykendall, 283 U.S. 59, 56 L.Ed. 351; State Tax Commission v. Flora Drug Co., 148 So. 373; Beers et al. v. Glynn, 211 U.S. 477, 53 L.Ed. 290.
The statute as a whole is not unconstitutional because of the sliding scale of automatic reductions in the amount of tax provided for in subparagraph 8 of section 2 thereof.
Hudson et al. v. Stuart, 166 Miss. 339; State ex rel. Knox v. Gulf, Mobile Northern R.R. Co., 138 Miss. 70; Stingley v. Jackson, 140 Miss. 19.
There is a presumption in favor of the constitutionality of the statute and the burden of showing some factual basis to overthrow this presumption rests upon appellee.
O'Gorman Young v. Hartford, 282 U.S. 251, 75 L.Ed. 328.
The court here must assume that the legislature paid due heed to all economic considerations in making classifications of motor vehicles for the purpose of imposing a privilege tax.
Portland Van Storage Co. v. Hoss, 81 A.L.R. 1136.
S.B. Thomas, of Greenville, for appellee.
Chapter 126 of the General Laws of Mississippi of 1934, amendatory of House Bill No. 3 of the Acts of the Mississippi Legislature, Extraordinary Session of 1932, and chapter 135 of the General Laws of Mississippi of 1932 is unconstitutional and void because of the classifications, exemptions and partial exemptions therein contained.
The exemptions granted under the statute render the act unconstitutional and void and deny to the appellee the equal protection of the law as guaranteed under the fourteenth amendment of the constitution of the United States and article 14 of the bill of rights of the constitution of the state of Mississippi.
Smith v. Cahoon, 283 U.S. 553, 75 L.Ed. 1264, 51 S.Ct. 582.
Hannah Simrall, of Hattiesburg, for appellee.
The legislature in dealing with trucks of two and one-half tons carrying capacity, expressly and deliberately pursued a different course to what it pursued with reference to the trucks of less than two and one-half tons carrying capacity by expressly requiring the said trucks of two and one-half tons and up to be provided with a speedometer and to keep and make daily and monthly reports and pay the said mileage tax.
If this act is to be given the construction contended for by the appellant in this case, we find these tax gatherers saying to the operator of the two and one-half ton truck that you must lay down your mileage tax for every mile that you travel either on the public highways of the state, or the streets of a municipality, and saying to the taxicab operator who operates within the municipality or within a radius of three miles thereof, and to the busses that are used in lieu of street cars, either in municipalities, or between municipalities, and to the hotels who operate busses for their patrons and employees not exceeding fifteen miles distant from the hotel, that we are excusing you from any such mileage tax.
The classification is arbitrary, fanciful and wholly lacking in reasonable foundation.
The tax is unreasonable in amount.
The Fourteenth Amendment to the Constitution of the United States, and Article Fourteen of the Constitution of the state of Mississippi, and the decisions of the courts of last resort of the United States and of the state of Mississippi, positively forbid the legislature to make discriminatory classifications. That is to say, classifications that are not based on some substantial difference or reason.
Lowry, Insurance Commissioner, v. City of Clarksdale, 122 So. 195, 197, 154 Miss. 155; Smith v. Cahoon, 75 L.Ed. 1264; Adams, State Revenue Agent, v. Standard Oil Co., 97 Miss. 879, 53 So. 692.
The amount of the charges and the method of collection are for the legislature to determine so long as they are reasonable and conform to some fair and practical standard.
Hudson v. Stuart, 145 So. 711, 166 Miss. 329.
If the equal protection and due process of law provisions of the state and federal constitutions do not rise to protect the appellee against this unreasonable and unjust demand, said provisions are of little avail to the ordinary citizen.
Portland Van Storage Co. v. Haas, 81 A.L.R. 1136; Sprout v. South Bend, 277 U.S. 163, 72 L.Ed. 833.
It is respectfully submitted that the attempt on the part of the state of Mississippi to require this appellee to pay a tax based on the damage that a motor vehicle does to the municipal streets, when no part of the tax so imposed and collected is used for the purpose of repairing said streets, is not only strictly prohibited by the state and federal constitutions, but that this fact has been judicially determined by the Supreme Court of the United States.
State v. Lawrence, 105 Miss. 568, 51 So. 975.
Brunini Hirsch, of Vicksburg, for appellee.
No court has yet sustained any tax that went to the extent of destruction. On the other hand, they have repeatedly and continuously held that the tax must be reasonable under all of the circumstances and facts at the time of being laid.
McCulloch v. Maryland, 4 L.Ed. 579; Railway Co. v. Brennan, Sheriff, 69 Miss. 103, 107; Pond on Public Utilities (3 Ed.), page 840; Hendrick v. Maryland, 235 U.S. 610, 59 L.Ed. 385; Hudson v. Stuart, 145 So. 611, 166 Miss. 339, 348.
It is submitted that the tax exacted in the instant case of the operators of motor vehicles used by wholesalers in and about their ordinary business is wholly unreasonable and does not conform "to some fair and practical standard."
What was the primary moving cause of the war of the revolution? It was unjust taxation. In countries less stable and conservative than these United States, this mileage tax, when considered along with the other taxes on motor vehicles, would create a revolution, that is, in Mexico and in any of the countries of the south of us.
In the case of Riley, State Auditor, v. Ayer Lord Tie Co., 113 So. 214, 417 Miss. 105, the state undertook to impose a privilege or license tax of twenty-five cents per thousand feet on timber treated by a creosoting plant, and it was held unconstitutional and void in that it denied equal protection of law in imposing a prohibitive tax for carrying on the business of creosoting timber.
The denial of the use of the highways to the wholesale merchants, retail merchants, and other user of motor vehicles in the ordinary operation of their businesses, we submit, is unreasonable, prohibitive and destructive, unfair and unjust.
Cooley on Taxation, January, 1876, Preface, and pages 140 243 (2 Ed.); Mayor et al. v. Streckfus Steamers, 150 So. 215, 167 Miss. 857; Clark v. State, 152 So. 820, 169 Miss. 369; Ex parte Dickey, 76 W. Va. 576, 85 S.E. 785.
As to the mileage tax, the common carrier and the contract carrier are put in the same class with the trucks of the citizens who are using them in the ordinary course of their business, while hotel busses, jitneys, etc., have been favored and exempted from the taxes and requirements put upon commercial motor vehicles.
We submit that the classification of the common carrier and contract carrier, using motor vehicles, along with the operators of trucks used incidentally and in and about their ordinary business was unjust, unfair, arbitrary and discriminatory.
Vicksburg Bank v. Worrell, 67 Miss. 47; State v. Lawrence, 66 So. 745, 108 Miss. 291; Hager v. Walker, 129 Am. St. Rep. 284; Gulf, Colorado Sante Fe Ry. Co. v. Ellis, 165 U.S. 150; State v. Loomis, 115 Mo. 307; In re Grice, 79 Fed. 627; Connelly v. Union Sewer Pipe Co., 184 U.S. 540; 21 Am. Eng. Encyc. of Law (2 Ed.), 800; Adams, State Revenue Agent, v. Standard Oil Co., 53 So. 692, 97 Miss. 879; 4 Encyc. U.S. Supt. Ct. Rep. 362, 363; Ohio Oil Co. v. Conway, 281 U.S. 146, 74 L.Ed. 775; Standard Oil Co. v. Fox, 6 F. Supp. 494; Weaver v. Palmer Bros., 270 U.S. 402, 46 S.Ct. 320, 70 L.Ed. 654; Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389, 401, 48 S.Ct. 553, 72 L.Ed. 927; Panhandle Oil Co. v. Mississippi, 277 U.S. 218, 48 S.Ct. 451, 72 L.Ed. 857, 56 A.L.R. 583; Airway Electric Appliance Corporation v. Day, 266 U.S. 71, 82, 45 S.Ct. 12, 69 L.Ed. 169; Greene v. Louisville R. Co., 244 U.S. 499, 61 L.Ed. 1280; Iowa National Bank v. Bennett, 284 U.S. 239, 76 L.Ed. 265.
In section 5 of the act, between subdivisions 1 and 2, there is an arbitrary and unreasonable discrimination, that is, a discrimination within the classification itself.
This discrimination within the classification itself renders the entire act void and ineffective.
In our appeal to this court to retrace its steps towards giving to the citizen his full protection as originally intended under the constitution, we find much comfort in the recent trend of the decisions.
The Nature of the Judicial Process, by Mr. Justice CARDOZO, pages 66, 67, 76, 77, 80, 82, 83, 84, 88, 89, 91, 92, 93, 112, 113, 135 to 138, and 150 to 152.
Argued orally by W.W. Pierce, for the state, and by T.C. Hannah, for appellee.
Appellants in their bill against appellee charged that appellee owned certain motortrucks of two and one-half tons and more carrying capacity, on which it had paid the state the annual privilege tag tax, as required by section 4 of chapter 126, Laws of 1934; that its motortrucks, however, had traveled more than six thousand miles upon the public highways of the state, and therefore appellee owed the mileage tax imposed by section 5 of the act, for which a decree was asked; that appellee was required to have its trucks equipped with speedometers as provided by section 15, and to keep daily records as provided in section 16, and to make reports as required by section 17, and to pay the taxes required by section 18.
Appellee, in its answer, admitted the material allegations of facts in the bill, but averred that section 5 of the act (the mileage tax provision) was violative of the equal protection clause of the Fourteenth Amendment of the Federal Constitution, and therefore void, assigning the following reasons: That upon payment of the tax provided by section 4 of the act appellee acquired the right to use its motortrucks on the public roads and streets of the state for the full twelve-month period; that the restriction found in subdivision 3 under section 5, limiting the privilege to only six thousand miles, was unreasonable and arbitrarily discriminatory; that the mileage tax imposed by section 5 of the act applies to mileage traveled on the public highways outside of municipalities and does not embrace municipal streets; that it is physically impossible for appellee to keep separate records of the mileage traveled by its trucks on public highways and on municipal streets, and for that reason the act is void for uncertainty; that if, on the contrary, the act includes municipal streets, it will be null and void, because the legislature was without power to impose a tax on appellee's trucks for mileage traveled on municipal streets, "particularly when no part of the fund goes into the municipal treasury;" that the classification of trucks according to carrying capacity, and the exemption from the mileage tax of trucks of less than two and one-half tons carrying capacity, private passenger automobiles, and taxicabs, is an unreasonable and arbitrary classification and renders the mileage statute void.
Appellee introduced evidence tending to show that it was very difficult to determine what character and tonnage of motor vehicle did the most damage to the public highways.
Appellee's attack is on the mileage tax above six thousand miles, which is required in addition to the flat tag tax. Hudson v. Stuart, 166 Miss. 339, 145 So. 611, comes very near deciding every question involved in the present case. The principles laid down in the opinion in that case and the supporting authorities cited, we think, apply to this case, and lead inevitably to the conclusion that the statute involved is not violative of the equality clause of the federal constitution. The cases referred to in that case are: Continental Baking Co. v. Woodring (D.C.), 55 F.2d 347; Id., 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155, 81 A.L.R. 1402; Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167; Westfalls Storage, Van Express Co. v. City of Chicago, 280 Ill. 318, 117 N.E. 439; Kellaher v. City of Portland, 57 Or. 575, 110 P. 492, 112 P. 1076; State ex rel. Wisconsin Allied Truck Owners' Ass'n. v. Public Service Commission, 207 Wis. 664, 242 N.W. 668.
Classification in law, as in other branches of knowledge, is the grouping of things in speculation or practice because they agree with one another in certain particulars and differ from other things in the same particulars. The Legislatures have wide discretion of classification when establishing classifications for the welfare of those for whom they legislate. The classification to be obnoxious to the equality clause of the Fourteenth Amendment to the Federal Constitution must be manifestly arbitrary and unreasonable and not possibly so. Atchison, Topeka Santa Fe R. Co. v. Matthews, 174 U.S. 96, 19 S.Ct. 609, 43 L.Ed. 909; Clark v. Kansas City, 176 U.S. 114, 20 S.Ct. 284, 44 L.Ed. 392; Missouri, Kansas T. Ry. Co. v. Cade, 233 U.S. 642, 34 S.Ct. 678, 58 L.Ed. 1135; Bachtel v. Wilson, 204 U.S. 36, 27 S.Ct. 243, 51 L.Ed. 357.
The discriminations which are alleged to be unreasonable and arbitrary, and therefore violative of equal protection, are exemption of trucks of less than two and one-half tons, passenger automobiles, cars engaged solely and exclusively in the transportation of children and teachers to and from public schools, those engaged exclusively in the transportation of agricultural, forest, and dairy products when such products are owned by the producer, or when forest products are being transported not exceeding fifty miles in their raw or manufactured state or as lumber, and in hauling sand, gravel, dirt, and stone for road-building purposes only, and where used in lieu of street cars in or between municipalities, or by hotels exclusively for its patrons and employees, operating not exceeding fifteen miles from such hotel, and taxicabs used within the city limits of a municipality or not exceeding three miles therefrom, and cars used by employees of the United States on official business, or exclusively for the United States, the state of Mississippi, or its subdivisions.
The state, in dealing with the public roads which belong to it, and in protecting its investment in the public roads, is not subject to the same restrictions as when dealing with private property not affected with the public use. Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257, 68 L.Ed. 596; Stephenson v. Binford, 287 U.S. 251, 53 S.Ct. 181, 77 L.Ed. 288, 87 A.L.R. 721; Riley v. Ayer Lord Tie Co., 147 Miss. 105, 113 So. 214. The classification of motor vehicles according to carrying capacity is not an arbitrary and unreasonable classification, and therefore not violative of equality. Carley Hamilton v. Snook, 281 U.S. 66, 50 S.Ct. 204, 74 L.Ed. 704, 68 A.L.R. 194; Hicklin v. Coney, 290 U.S. 169, 54 S.Ct. 142, 78 L.Ed. 247; Hudson v. Stuart, supra. Most of the classifications in this statute have already been held valid. Hudson v. Stuart, supra; Continental Baking Co. v. Woodring, supra; Carley Hamilton v. Snook, supra; State ex rel. Wisconsin Allied Truck Owners' Ass'n v. Public Service Commission, supra; Hicklin v. Coney, supra; Hoover Motor Express Co., Inc., v. Fort, 167 Tenn. 628, 72 S.W.2d 1052.
A classification on a mileage basis in levying a privilege tax on motor vehicles does not violate equality. Continental Baking Co. v. Woodring, supra; Columbus Greenville Ry. Co. v. Miller, 283 U.S. 96, 51 S.Ct. 392, 75 L.Ed. 861; Chesapeake Ohio R. Co. v. Conley, 230 U.S. 513, 33 S.Ct. 985, 57 L.Ed. 1597; Pullman Co. v. Adams, 78 Miss. 814, 30 So. 757, 84 Am. St. Rep. 647; Id., 189 U.S. 420, 23 S.Ct. 494, 47 L.Ed. 877; Zemurray v. Bouldin, 87 Miss. 583, 40 So. 15.
The putting of passenger vehicles and freight vehicles into separate classes and levying a different tax on each class is not violative of equality. Hudson v. Stuart, supra; Sproles v. Binford, supra; Hicklin v. Coney, supra; Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385; Kane v. New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222; Carley Hamilton v. Snook, supra.
In the definitions to the act, subdivision 9 of section 1, it is provided that the term "'public highway' includes the public roads, highways, streets and bridges in this state." The statute does not violate equality because it imposes a privilege tax upon motor vehicles used partially on the streets of municipalities, even though no part of the tax is returned to the municipality. City of Jackson v. State ex rel. Mitchell, 156 Miss. 306, 126 So. 2; Carley Hamilton v. Snook, supra; Nashville, Chattanooga St. Louis Ry. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730, 87 A.L.R. 1191; Eastern Air Transport, Inc., v. South Carolina Tax Commission, 285 U.S. 147, 52 S.Ct. 340, 76 L.Ed. 673; Trinityfarm Construction Co. v. Grosjean, 291 U.S. 466, 54 S.Ct. 469, 78 L.Ed. 918. Furthermore, the streets of municipalities are state highways in a large sense. Municipalities are governmental units of the state, and under our public highway laws, some of the main thoroughfares of municipalities have been constructed, in part at least, at state expense.
We see no constitutional objection to the Legislature exempting entirely all trucks of less than two and one-half tons, and the same is true of the other motor vehicles exempt by the statute from the mileage tax. In determining whether a classification is justified, the courts will not pass on issues of fact; they will assume that the findings of fact by the Legislature upon which the statute is based in reality existed, unless it is apparent to all reasonable minds that they were nonexistent.
To sustain its position appellee relies largely on Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264. We do not think the case at all in point. In that case there was a Florida statute involved; it put private carriers in practically the same category as public carriers, and required them, when operating between fixed termini or over a regular route, to obtain certificates of public convenience and necessity as a condition precedent to the right to use the public highways of the state. The court held that the act was beyond the power of the state; that the Legislature could not make a public utility out of a private utility; that to do so constituted the taking of private property for public use without due compensation, and was therefore violative of due process. Michigan Public Utilities Commission v. Duke, 266 U.S. 570, 45 S.Ct. 191, 69 L.Ed. 445, 36 A.L.R. 1105, and Frost Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101, 47 A.L.R. 457, referred to in the opinion in that case, are to the same effect. The court further held that a provision of the statute requiring private carriers in addition to the certificate of public necessity and convenience, to furnish a bond or insurance policy to indemnify the public against injuries, but exempting from such requirement transportation companies engaged exclusively in transporting agricultural, horticultural, dairy, and other farm products, and fish, oysters, or shrimp, from the point of production to the assembling or shipping point en route to primary market, and motor vehicles used exclusively in transporting and delivering dairy products, was, in that respect, a denial of equality, and therefore a void discrimination. The court held that the statute in this respect related to the public safety, which was a matter of grave concern, as the highways became increasingly crowded with motor vehicles; and that there was no doubt of the power of the state to insist upon suitable protection for the public against injuries through the operations on its highways of carriers for hire, whether they were common carriers or private carriers; but in establishing such a regulation there did not appear to be any justification for making a distinction between those who carry for hire farm products, or milk or butter, or fish or oysters, and those who carry for hire bread or sugar, or tea or coffee, or groceries in general, or other useful commodities; and that it was manifest that one endangered the public safety as much as the other. The requirement had nothing to do with the relative damage done highways by motor vehicles of different capacities nor the public policy of exempting from taxes motor vehicles carrying certain character of commodities for the purpose of promoting the general welfare. The validity of the mileage tax provided by the statute was not passed on. The court never reached that.
Reversed, and judgment for appellants.