State v. Healow , 98 Mont. 177 ( 1934 )

The first question discussed in the foregoing opinion is whether Chapter 184, Laws of 1931, violates section 23, Article V, of our Constitution, as contended by defendants. My associates say that the question has been foreclosed by the cases ofBarney v. Board of Railroad Commrs., 93 Mont. 115, 17 P.2d 82, and Fulmer v. Board of Railroad Commrs., 96 Mont. 22,28 P.2d 849, 855. With this I do not agree. In theBarney Case no mention was made of section 23, Article V, of our Constitution. It dealt only with other constitutional provisions. General expressions used in a court's opinion are to be taken in connection with the case under consideration. (Williams v. Anaconda Copper Min. Co., 96 Mont. 204, 29 P.2d 649.) Whether general expressions used in the Barney Case to sustain the Act against certain objections can be relied upon to sustain the Act as against a different objection, as here, ought to receive the consideration of this court.

Section 23, supra, provides as follows: "No bill, except general appropriation bills, and bills for the codification and general revision of the laws, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any Act which shall not be expressed in the title, such Act shall be void only as to so much thereof as shall not be so expressed."

In the Barney Case, as against the objection there made, much stress was laid upon section 22 of Chapter 184, which provides as follows: "Nothing in this Act shall be construed as converting or attempting to convert a private carrier into a common carrier, and it is hereby declared that this Act is intended primarily as a regulation of the public highways of the State of Montana." It was this legislative declaration that was held to be "entitled to gravest consideration" in the BarneyCase. The question here is: Is such a declaration in the body of the Act (which is about the only thing in the Act which conforms to the title) sufficient to meet the requirements of section 23, Article V, when many, if not all, of the other provisions of the Act have nothing to do with the regulation of the use of the highways of the state? The Barney Case does not answer the question.

In the Fulmer Case I took the view that the contention of defendants here made has merit, and that certain portions of Chapter 184 are in conflict with this section of the Constitution. My views are set out in a dissenting opinion in that case. The majority opinion in the Fulmer Case, instead of passing upon the question, or instead of holding that the question was foreclosed in the Barney Case, declined to pass upon it and, in effect, reserved the question for further consideration. In that opinion it was stated as follows: "Some question as to the sufficiency of the title of the Act (Chapter 184, supra) was suggested after the argument of the appeal in this court. The matter was not presented to the trial court; hence it had no opportunity to pass upon it. No assignment of error was, nor could have been, made with reference to it on appeal, and no mention thereof occurred either in the briefs or on oral argument. Were we to act upon the suggestion and find it meritorious, we would be compelled to reverse the judgment on a ground not advanced to, nor considered by the lower court in arriving at its conclusion. Under the circumstances, therefore, we have refrained from a discussion of the point and do not now assume to pass upon it."

It seems to me that it cannot now be said that either theBarney or Fulmer Case determines the question whether Chapter 184, or any part of it, meets with the requirements of section 23, Article V, of our Constitution. For the reasons stated in my dissenting opinion in the Fulmer Case, I think the chapter offends against section 23 of Article V. Had the majority opinion in either the Barney or Fulmer Case determined the question adversely to defendants' contention here, I would now be constrained to adopt that conclusion on the ground of staredecisis, but, as stated above, I think neither of those cases decides the question here presented.

On one other point I disagree with the majority opinion in this case. Defendant Kemp was simply an employee of defendant Healow. The question then is: Can the judgment against him stand?

Subdivision (h) of section 1 of Chapter 184 defines a "motor carrier" as follows: "The term `motor carrier,' when used in this Act, means every person or corporation, their lessees, trustees, or receivers appointed by any court whatsoever, operating motor vehicles upon any public highway in the State of Montana for the transportation of persons and/or property for hire, on a commercial basis either as a common carrier or under private contract, agreement, charter, or undertaking."

Kemp, according to the agreed facts, was an employee of Healow and the operator in control of the truck. He was not, however, transporting persons or property for hire as a carrier. He was simply driving the truck for a daily wage paid by his employer, and not by the persons transported or by the owners of the property transported. Nowhere in the Act is there provision made whereby he must obtain a permit. Neither is there a provision in the Act prescribing a penalty for the employee of an individual carrier driving a truck where the owner has not obtained a permit. True, subdivision (b), section 2, makes it unlawful for an employee to operate otherwise than in accordance with the provisions of the Act. It provides: "It shall be unlawful for any corporation or person, its or their officers, agents, employees, or servants, to operate any motor vehicle for the transportation of persons and/or property for hire on any public highway in this State except in accordance with the provisions of this Act."

Section 19 prescribes the penalty and reaches employees of a corporation, but not of an individual. It provides: "Any motor carrier, subject to the provisions of this Act, or, whenever any such motor carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or persons acting for or employed by such corporation, who violates or fails to comply with or who procures, aids, or abets in the violation of any provision of this Act, or who fails to obey, observe, or comply with any lawful order, decision, rule or regulation, direction, demand, or requirement of the board, or any part of provisions thereof, shall be deemed guilty of a misdemeanor and shall, upon conviction thereof, be punished by a fine of not less than Five Dollars ($5.00) nor more than One Hundred Dollars ($100.00), or by imprisonment in the county jail for a period of not more than thirty (30) days, or by both such fine and imprisonment."

There is an obvious reason for providing a penalty for employees of a corporation and not of an individual carrier. The corporation itself cannot be imprisoned, while an individual carrier can. If the employee of an individual carrier is himself a "motor carrier," within the meaning of the Act, then he is subject to the fee prescribed by section 16, in addition to the fee paid by his employer; also he must make the application and pay the prescribed fee provided by other sections of the Act which apply to all motor carriers. Such a construction of the statute is, I think, unwarranted.

In my opinion, if Chapter 184 is valid in all respects, still the judgment against defendant Kemp cannot stand, because the penal provisions of the statute do not apply to an employee of an individual carrier operating without a permit.

I agree with the result reached by the majority to the effect that Chapter 184 does not conflict with section 26, Article V, of our Constitution, but not with all that is said on that subject.