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State, ex Rel. v. Wallace

Supreme Court of Ohio
Jun 25, 1941
35 N.E.2d 167 (Ohio 1941)


No. 28587

Decided June 25, 1941.

Motor vehicles — Annual license tax — School busses exempt — Section 6295-1, General Code, constitutional.

Section 6295-1, General Code, as it relates to the exemption of described "school busses" from the annual motor vehicle license tax, represents a valid exercise of legislative power, not in conflict with the state or federal Constitutions.


The relatrix, Dorothy Walls, brings this original action in mandamus against Cylon W. Wallace, Registrar of Motor Vehicles of the state of Ohio, as respondent, to require him to collect an annual license fee from the owners or all "school busses" registered in the state of Ohio.

It is alleged by the relatrix in her petition that she is a citizen of the United States and of the state of Ohio; that she resides in Mahoning county, owns a registered motor vehicle, holds an Ohio driver's license, and brings the action on behalf of herself, all other taxpayers in Ohio similarly situated, and the state of Ohio; that before commencing the action she made written demand on the respondent to collect and to direct his deputy registrars and agents to collect such annual motor vehicle license tax on "school busses," and also made written demand on the Attorney General of Ohio to require the collection of such tax, which demands were refused.

Relatrix, in her petition, centers attack on the constitutionality of that part of Section 6295-1, General Code, reading as follows:

"No school bus as hereinafter defined shall be required to pay the annual license tax provided for in Section 6291 of the General Code. The term 'school bus' as used herein shall be construed to mean any vehicle, however owned, used exclusively to transport school children, either to and/or from school, or to and/or from any school function, having a seating capacity of more than five persons exclusive of the driver."

Relatrix avers that the portion of the statute quoted violates Section 1 of the Fourteenth Amendment to the Constitution of the United States, known as the equal protection clause, Section 2, Article I of the Constitution of Ohio, relating to equal protection and providing that "no special privileges or immunities shall ever be granted, that may not be altered, revoked or repealed by the General Assembly," and Section 2, Article XII, of the Ohio Constitution, requiring certain property to be taxed by uniform rule according to value. Relatrix makes the sweeping statement that Section 6295-1, General Code, "denies equal protection and benefits, and is unreasonable, arbitrary, discriminatory and partial, and constitutes unjust, capricious, class legislation."

Specific allegations are made that the statute in issue grants "rights and privileges to some which are withheld from others in the same substantial situation as relator"; that it is repugnant to the principle of uniformity in not limiting "the exemption to public property used exclusively for any public purpose"; that it deprives the state of Ohio of a large amount of revenue and injures the relatrix personally because "by the collection of the said license taxes now illegally exempted, this relatrix would undoubtedly have a lesser rate of taxation and enjoy the use of additional improved highways, and better maintenance thereof"; and that the statute constitutes "a most flagrant example of the abuse of legislative power."

Respondent demurs to the petition on two grounds:

"1. The relatrix has no legal capacity to bring this action; and

"2. The petition does not state facts sufficient to constitute a cause of action."

It is upon the demurrer to the petition that the case is submitted for decision.

Mr. William P. Barnum and Mr. Harry T. Rapport, for relator.

Mr. Thomas J. Herbert, attorney general, and Mr. Ansel H. Wilson, for respondent.

While the capacity of the relatrix to maintain this action is not wholly free from doubt, we believe such right should be recognized under the holdings and language in a number of cases decided by this court. See State, ex rel. Downing, Pros. Atty., v. Powers, Chief of Div. of Securities, 125 Ohio St. 108, 110, 180 N.E. 647, 648, and cases therein cited; State, ex rel. Struble, v. Davis et al., Tax Commission, 135 Ohio St. 593, 595, 22 N.E.2d 81, 82; 25 Ohio Jurisprudence, 1163, Section 222 et seq.; 34 American Jurisprudence, 870, Section 81 et seq.

We approach consideration of the second branch of the demurrer remembering the established rule that every reasonable presumption must be indulged in favor of the constitutionality of a statute. 8 Ohio Jurisprudence, 154, Section 58.

We must likewise be mindful of the fact that the annual motor vehicle license tax is an excise and not a property tax, and is therefore not affected by Section 2, Article XII, of the Constitution.

Speaking of the wide powers of the General Assembly in connection with the imposition of excise taxes, this court recently said, in State, ex rel. Brunenkant, v. Wallace, Registrar of Motor Vehicles, 137 Ohio St. 379, 383, 30 N.E.2d 696, 698:

"The General Assembly has broad discretion with respect to classification of persons and property in the enactment of legislation imposing an excise tax. As long as there is a reasonable basis for the creation of classes and the exemption of a class is not discriminatory nor arbitrary, the courts will not interfere on the ground that the classification renders the law unconstitutional."

In our opinion this principle is pertinent to the present cause and operates against the relatrix. Such principle has been invoked and applied by many courts in upholding the constitutionality of legislation exempting from a license tax "school busses" employed in transporting children to and from school, and other classes of vehicles used for specified purposes. The cases in which the principle has been applied recognize the extensive authority of the legislative branch of the government in the regulation and supervision of the highways of the state, and the latitude which must be accorded that branch in classifying the vehicles making use of such highways. They further recognize that the transportation of children in connection with school activities is in furtherance of their educational pursuits, in which the state has an interest. The conclusion is therefore reached in practically all, if not in all, of the cases that laws exempting "school busses" from a motor vehicle license tax are valid, being neither discriminatory, unreasonable, arbitrary, nor a denial of the equal protection of the laws. Continental Baking Co. v. Woodring, Governor, 286 U.S. 352, 76 L.Ed., 1155, 52 S.Ct., 595, 81 A. L. R., 1402; Smallwood v. Jeter, 42 Idaho 169, 244 P. 149; Ex parte Iratacable, 55 Nev. 263, 30 P.2d 284; 109 A. L. R., 580, annotation; 6 Berry on Automobiles (7 Ed.), 81, Section 6.49; 1 Blashfield Cyclopedia of Automobile Law and Practice (Perm. Ed.), 140, Section 164; 1-2 Huddy Cyclopedia of Automobile Law (9 Ed.), 432, Section 205.

Entertaining the view that the petition herein does not state a cause of action, the demurrer thereto is sustained and, it being agreed that such ruling is dispositive of the case, the writ is denied.

Writ denied.


HART and BETTMAN, JJ., dissent.

MATTHIAS, J., not participating.

Summaries of

State, ex Rel. v. Wallace

Supreme Court of Ohio
Jun 25, 1941
35 N.E.2d 167 (Ohio 1941)
Case details for

State, ex Rel. v. Wallace

Case Details


Court:Supreme Court of Ohio

Date published: Jun 25, 1941


35 N.E.2d 167 (Ohio 1941)
35 N.E.2d 167

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