Summary
In State v. Seraphine (1954), 266 Wis. 118, 62 N.W.2d 403, the court considered this contention in respect to an overload violation and held the statutory scheme of graduated penalties and the particular fine involved were constitutional. Also see: State v. Naczas (1959), 8 Wis.2d 187, 189, 190, 98 N.W.2d 444.
Summary of this case from State v. Trailer Service, Inc.Opinion
January 8, 1954 —
February 2, 1954.
APPEALS from three judgments of the municipal court for the eastern district of Waukesha county: SCOTT LOWRY, Judge. Affirmed.
For the appellants there was a brief and oral argument by A. L. Tilton of Milwaukee.
For the respondent there was a brief by the Attorney General and Stewart G. Honeck, deputy attorney general, and William A. Platz, assistant attorney general, and oral argument by Mr. Honeck and Mr. Platz.
The defendant Edward Lutz Sand Gravel Company, Inc., was charged with two separate violations of sec. 85.47 (1) (a), Stats. The defendant Milton Vernon Seraphine was charged with a violation of sec. 85.47 (1) (d). These statutory provisions limit the weight of loads to be hauled over the highways of the state, and the penalties for overloading are graduated so that the greater the overload the greater the fine provided. It was not disputed that the trucks were overloaded, nor was there any dispute as to the extent of the overload. With reference to the violations with which the Lutz Sand Gravel Company, Inc., was charged, the facts were stipulated as follows:
"That on the 25th day of June, 1952, defendant's driver and employee, Francis Hillier, was operating a Mack tandem-axle motor truck over and along the marked route of U.S. Highway No. 41 and within the corporate limits of the village of Menomonee Falls, Waukesha county, Wisconsin.
"That at the aforesaid time and place the gross weight with load imposed on said highway by two consecutive axles of said truck was 38,150 pounds. That the distance between the first and last axles of the group under consideration was four feet to the nearest foot.
"That on the 25th day of June, 1952, defendant's driver and employee, Harold Knepel, was operating a White single-axle motor truck along the marked route of U.S. Highway No. 41 and within the corporate limits of the village of Menomonee Falls, Waukesha county, Wisconsin.
"That at the aforesaid time and place the gross weight with load of the rear axle of said motor truck was 21,620 pounds."
With reference to the offense with which the defendant Milton Vernon Seraphine was charged, the facts were stipulated as follows:
"That on the 25th day of June, 1952, the defendant did operate a tractor-trailer motor-vehicle combination over and along U.S. Highway No. 41 within the corporate limits of the village of Menomonee Falls, Waukesha county, Wisconsin.
"That at the aforesaid time and place the gross weight with load imposed on said highway by two consecutive axles of said motor vehicle was 33,750 pounds. That the distance between the first and the last axles of the group under consideration was four feet to the nearest foot."
Pleas of not guilty were entered on the ground that the statute was unconstitutional. The trial court found the defendants guilty as to each offense charged. The defendant Edward Lutz Sand Gravel Company, Inc., was sentenced to pay two separate fines, one of $267.20 and the other $868.50, and the defendant Milton Vernon Seraphine was fined $275. Separate appeals were taken from each of the judgments, and the appeals were consolidated by stipulation.
Secs. 85.47 (1) (a) and (d), Stats., deal with overloads on Class "A" highways. It is the first contention of the defendants upon this appeal that the state failed to prove that the highway upon which the defendants were traveling at the time of the alleged violations was a Class "A" highway. The statutes provide that state trunk highways and connecting streets shall be designated as Class "A" highways. The highways in this state designated as United States highways are actually a part of the state trunk highway system. Thus, the stipulations indicate that the three alleged violations occurred on a street in the village of Menomonee Falls, constituting a part of the marked route of U.S. Highway 41. The weight limitations on Class "B" highways are less than those provided for on Class "A" highways. Thus it was to the advantage of the defendants to be charged with violations upon a Class "A" highway. They were not prejudiced thereby, but in any event the stipulations, in view of the various statutory provisions, show that the alleged violations were upon a Class "A" highway.
It is next contended that the statutes are unconstitutional in that the penalty sections provide for excessive fines, in violation of sec. 6, art. I of the Wisconsin constitution. The parties agree that the rule to be followed in determining whether or not a fine is excessive is correctly stated in 24 C. J. S., Criminal Law, p. 1191, sec. 1978 c., as follows:
"The courts are reluctant to say that the legislature has exceeded its power in authorizing excessive fines, and as a general rule will not do so except in a very clear case; and, therefore, the widest latitude should be given to the discretion and judgment of the legislature in determining the amount necessary to accomplish the object and purpose it has in view. In determining whether a fine authorized by statute is excessive in the constitutional sense, due regard must be had to the object designed to be accomplished, to the importance and magnitude of the public interest sought to be protected, to the circumstances and the nature of the act for which it is imposed, and in some instances, to the ability of accused to pay. In order to justify the court in interfering and setting aside a judgment for a fine authorized by statute, the fine imposed must be so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances. . . ."
Although constitutional questions were not raised, this court passed upon penalties in several cases for violations because of overloading trucks, and fines much in excess of those before us were approved. State v. Stang Tank Line, 264 Wis. 570, 59 N.W.2d 800; State v. Friedrich Loots Co. 264 Wis. 577, 59 N.W.2d 803. Applying the rule quoted above, we cannot find that the fines in question are so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is proper.
Attention is called to the fact that the legislature in 1953 reduced the penalties for overloads upon the highways. This is no proof that the original schedules were excessive in the sense referred to in the state constitution. The defendants contend that the penalties are excessive in the constitutional sense in that small truckers might be forced out of business by one flagrant violation. No claim is made that the penalties were so excessive in the present cases that either of the defendants will be forced out of business. The evident purpose of overloading is profit, and the greater the overload the greater the profit if the operator is not detected sufficiently often and the penalty is not sufficiently severe to make overloading unprofitable. The certainty and the frequency of the conviction act together to determine what penalty is adequate to discourage the unlawful practice. A graduated fine, as the statute imposes, does not appear to us to be unreasonable nor excessive even in its higher brackets. A small overload which may occur through carelessness is covered by the tolerance permitted by statute or is lightly punished. A large overload implies affirmative intent to violate the law for mercenary motives. The legislature has great discretion in prescribing the penalty which it deems appropriate to deal with the evil to be controlled. The graduated scale of penalties in the statute we are considering does not exceed such constitutional discretion.
The defendants next contend that the statutes in question are not a valid exercise of the police power in that the penalties are higher than are needed to protect the highways of the state. The operation of motor vehicles upon the highways of the state is a privilege and not a property right, and is subject to reasonable regulations under the police power. State v. Stehlek, 262 Wis. 642, 56 N.W.2d 514. In effect the defendants argue that the statutes are not a valid exercise of the police power because of the severity of the penalties. Since we have determined that the penalties are not excessive in the constitutional sense, it must be held that the statutes are a valid exercise of the police power by the legislature.
The defendants next contend that these statutes abrogate the power of the judiciary in that the trial judges are given no discretion as to the penalties to be imposed. This argument was made in the Stang and Friedrich Cases, supra. Those decisions are controlling here.
Finally, the defendants contend that the statutes violate the equal-protection clauses of both the state and federal constitutions. This argument is based primarily upon an opinion of the attorney general of Wisconsin that trucks owned by counties and other municipalities are exempt from the statutes. Municipally owned trucks are not specifically excluded by the statute, and the opinion of the attorney general that they are exempt is based on the doctrine of sovereign immunity. Statutes are not subject to attack because they do not cover the entire field. Exemptions based upon proper classifications have been upheld by this court. State ex rel. Wisconsin Truck Owners Asso. v. Public Service Comm. 207 Wis. 664, 242 N.W. 668. We can see no merit in the final contention of the defendant.
By the Court. — Judgments affirmed.