State v. Pate , 47 N.M. 182 ( 1943 )

The following propositions are settled on high authority.

The implication always exists that no violation of the constitution has been intended by the legislature. State v. Sargent, 24 N.M. 333, 171 P. 790.

The legislature has a wide range of discrimination in classifying, and where there is some support of taste, policy, difference of situation or the like, even if such reasons may seem to the court to be poor ones, the Fourteenth Amendment to the Constitution of the United States and corresponding provision of our Constitution are not violated. The question is "could it have seemed reasonable to the legislature even though such basis seems to the court to be unreasonable?" Davy v. McNeill, 31 N.M. 7, 240 P. 482, 486.

It is a well recognized rule in the federal and state courts that the regulation of motor vehicles is an exercise of the police power of the state, and that the state has a right, without being charged with discrimination as against a nonresident, to require all persons who use the highways of that state to comply with its registration laws. Hendrick v. Maryland,235 U.S. 610, 622, 35 S. Ct. 140, 59 L. Ed. 385; Kane v. New Jersey, 242 U.S. 160, 167, 37 S. Ct. 30, 61 L. Ed. 222.

"And these authorities hold that a state may regulate the use of its highways by any person using them with an automobile, and the fact that it grants certain exemptions to certain classes of citizens in other states or countries does not warrant a person, not coming within that exemption, to complain that it deprives him of equal protection of the law as guaranteed by the Fourteenth Amendment to the Constitution." Bailey v. Smith, D.C., 40 F.2d 958, 959.

The Supreme Court of the United States in Barbier v. Connolly,113 U.S. 27, 5 S. Ct. 357, 360, 28 L. Ed. 923, decided: "Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, is carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment."

Mr. Justice Field in his opinion in that case, pointed out that the Fourteenth Amendments is for the protection of rights, and that if no substantial right is invaded, the execution of legislative powers is not obnoxious to any constitutional provision.

Since the nonresident owner of an automobile is not entitled to any immunity from being placed on the same basis as resident owners of automobiles, I am unable to see how he has any "substantial right" which was impaired because the legislature, in carrying out a public purpose, limited the application of the exemption extended to nonresidents by imposing a condition that he should enjoy this exemption only if he did not accept gainful employment in this state while enjoying it.

"Those who seek shelter under an exemption law must present a clear case, free from all doubt, as such laws, being in derogation of the general rule, must be strictly construed against the person claiming the exemption and in favor of the public." 17 R.C.L. p. 522, § 42.

And in Harper v. England, infra [124 Fla. 296, 168 So. 406] it was held: "It is also held that under a registration law, such as that we have under consideration, the collection of a fee for registration is the rule and the exemption is the exception to the rule. Therefore, he who claims the exemption bears the burden of establishing his right to it. 1 Cooley on Taxation (3d Ed.) 456; Camas Stage Co. v. Kozer, 104 Or. 600, 209 P. 95, 25 A.L.R. 27."

The idea of making a distinction between nonresident owners of automobiles who drive them in states other than the residence of such owners for pleasure or for profit, is not new. See Cyclopedia of Automobile Law, Huddy, 9th Ed. sec. 159.

Likewise, making the definition of the term "nonresident" to turn upon the circumstance of employment by the driver in gainful occupations is not new. In South Carolina, the legislature provided in 1930, Code 1932, § 5897, for an annual license tax on motor vehicles, and also provided: "For a period of ninety (90) days in any given year no nonresident owner of a passenger motor vehicle duly registered in and licensed by another State shall be required to pay the annual license required by section 5896 for a passenger motor vehicle, except where such vehicle is used regularly or periodically in this State for business orcommercial purposes." (Emphasis supplied.)

Another section authorizes the state highway department to promulgate rules and regulations defining any word or term used in the pertinent statutes and that such regulations shall have the full force and effect of law.

Pursuant to the authority given, the department made the following rule or regulation:

"The term `non-resident,' as used in the sections therein referred to, is hereby defined to mean any person, firm or corporation not engaged in any business, profession, occupation or employment in the State of South Carolina.

"Any person who moves into the State of South Carolina for the purpose of engaging in any business, profession, occupation or employment, immediately becomes a resident of this State and is immediately liable to the State for the payment of regular motor vehicle license fees in case such person operates a motor vehicle in the State, but for administration purposes the motor vehicle division, its officers, and agents, are hereby authorized and directed to allow any such person a period of ten (10) days, without penalty, in which to secure motor vehicle license or licenses."

The Supreme Court of South Carolina in Stovall v. Sawyer,181 S.C. 379, 187 S.E. 821, held this act constitutional. It is proper to say that the exact constitutional question here involved was not there raised and it is cited as an example of legislation similar to our own.

If we start out with the proposition that resident owners of motor vehicles are to pay the registration fees, then we discover that Chapter 165, § 1(a) Laws 1941, may be considered as establishing a rule of evidence to determine the question of residence, similarly, as it was done in South Carolina, Florida and Kentucky.

Another example may be found by reading Harper v. England,124 Fla. 296, 168 So. 403, where the Supreme Court of Florida discusses the Florida statutes. It seems that an enactment of 1917, as amended in 1925 and in 1927, declared that the provisions of the registration act should not apply to a motor vehicle owned by a non-resident of the State provided that he had complied with the laws of the state of his residence relative to motor vehicles, and then provided: "But such exemption shall not apply to motor vehicles operated for hire." Comp.Gen. Laws Fla. 1927, § 1293.

It would be difficult to assume that using an automobile for hire was any more detrimental to the highways than the use of such vehicle for pleasure. Yet one may easily conjecture that a state such as Florida with its many attractions to tourists and pleasure seekers could discover a reason for making a distinction between pleasure driving and driving for hire. A little later in 1933, the Florida legislature enacted the following statute:

"The provisions of law authorizing the operation of motor vehicles over the highways of the State of Florida by non-residents of this State when such vehicles shall be duly registered or licensed under the laws of some other State or foreign country, shall not apply to any non-resident who shall accept employment or engage in any trade, profession or occupation in this State. In every case where a non-resident shall accept employment or engage in any trade, profession or occupation in the State of Florida, such non-resident shall be required to register his motor vehicles in this State if such motor vehicles are proposed to be operated on the highways of the State of Florida." Laws Fla. 1933, c. 16085, § 3(17).

Diligent search does not disclose that this Florida enactment of 1933 has been questioned on constitutional grounds. However, the Attorney General of Florida rendered an opinion appearing at page 554 of Biennial Report of the Attorney General, 1937-1938 in which he said: "The above statutory provision quite obviously was enacted for the purpose of requiring winter tourists to pay a license tax for operating their motor vehicles on the highways of the State if they were in competition with citizens of Florida for available employment in the State. To put the matter plainly, if a non-resident comes to Florida and obtains employment that might otherwise be available for a resident then the law requires such non-resident to obtain a Florida license tag for his automobile."

It thus appears that the suggested reason for the classification has found lodgement in minds of others than the appellant and the writer of this opinion. I agree with the Attorney General of Florida that it is obvious.

Even before the amendment of the Florida statute, the Supreme Court of Florida had ruled that the otherwise resident of another state became a resident of Florida, within the intent and meaning of the earlier statute, by reason of the fact that he was employed in the canning industry in Florida for approximately five months in each year. Robinson v. Fix, 113 Fla. 151,151 So. 512.

An ordinance of the City of Paducah imposing a license tax on persons operating automobiles therein including nonresidentsusing automobiles as means of conveyance to and from work in thecity, was held to be valid as against contention that such classification was unreasonable, discriminatory or lacking in uniformity. See Johnson v. City of Paducah, 285 Ky. 294,147 S.W.2d 721.

In State v. Zimmerman, 181 Wis. 552, 561, 196 N.W. 848, it was decided that the taxing of the automobile used for strictly private purposes is a tax upon the privilege of using the highways of the state, while the tax upon the owner of a motor vehicle by a person gainfully employed may be considered not only a tax upon the privilege of using the highways, but also a tax upon the occupation of one so engaged.

Now, as to the statutes of other states, more or less similar in purpose to our own and which do not appear to have been the subject of litigation:

Colorado Code 1935, vol. 2, Chapter 16, § 115. Usual exemptions of foreign licensed automobiles, but exemption shall not apply where nonresident is engaged in business in Colorado and operates car in said business.

Revised Code of Delaware 1935, § 5540 et seq., similar to Colorado. Georgia Code 1933, § 68-221, exempts foreign licensed cars for thirty days and then declares: "Provided, no resident shall be allowed to operate a motor vehicle within this State under a license issued by another State."

Idaho Code Annotated 1932, § 48-120, (Act of 1927) — Exemptions for nonresidents similar to New Mexico, but provides: "Any transient person or resident of another state sojourning within the state of Idaho for a period of more than sixty days and engaged during that period in a gainful occupation shall for the purposes of this chapter, be classed as a resident of this state."

Louisiana General Statutes 1932, § 5174. Usual exemptions for foreign vehicles are provided, followed with the provision: "Every nonresident person, regularly employed in or carrying on a business within this state and owning and regularly operating, in such business or in connection therewith, any motor vehicle, trailer or semitrailer within this state, shall be required to register each vehicle and pay the same license taxes therefor as is required with reference to like vehicles owned by residents of this state." (Acts 1932 No. 20, § 20.)

Revised Statutes of Maine, 1930, page 574, c. 29, § 40. Exempts foreign cars from registration or license fee if not used for hire.

Compiled Laws of Michigan 1929, § 4643, exempts resident owners of motor vehicles owned and operated by persons who have paid license fee in other states, etc. and then provides: "This exemption, however, shall not apply to pleasure vehicles operating within this state for a period exceeding ninety (90) days and to commercial vehicles operating within this state for a period exceeding ten (10) days, and in no case where the owner of such motor vehicle is a resident of the state of Michigan."

Mason's Minnesota Statutes, 1927, § 2684-1 limits exemptions of foreign motor vehicles to owners who are citizens of states or Canadian provinces adjoining Minnesota. Then by amendments of 1927, 1931 or 1935, Mason's Minn.St.Supp. 1936, § 2684-6, it is provided: "Every non-resident * * * carrying on business within this State and owning and regularly operating in such business any motor vehicle within this State shall be required to register each such vehicle and pay the same tax and penalties, if any, therefor, as is required with reference to like vehicles owned by residents of Minnesota."

Mississippi Code, 1930, § 5616 — Exemption of nonresident owners of motor vehicles who shall have paid registration fee elsewhere and providing that the exemption "shall not apply to any motor vehicle, trailer or semi-trailer operated within this state for the transportation of persons for hire or of property for hire or otherwise."

Revised Codes of Montana, 1935, contains the usual exemption of foreign licensed motor vehicle. Then in 1929 (See Code, § 1760.7) it was provided: "Before any foreign licensed motor vehicle shall be operated on the highways of this state for compensation or profit, or the owner thereof is using the vehicle while engaged in gainful occupation or business enterprise, in the state of Montana, including highway work, the same shall be registered and licensed in this state in the same manner as is required in the case of domestic owned vehicles of similar character not heretofore registered or licensed," etc.

Nevada Compiled Laws, Supp. 1931-1941, § 4435.16, has the usual exemptions for foreign licensed vehicles but provides: "A nonresident owner of a vehicle of a type subject to registration in this state who, while residing in this state, accepts gainful employment within this state shall for the purposes of and subject to the provisions of this act be considered a resident of this state and pay such registration fees as provided for in this act."

Oklahoma Statutes 1941, Title 47, § 22.12. This refers to acts of 1941, page 185, § 13. It refers to nonresidents, registration, etc., and after providing exemptions to foreign licensed cars, concludes: "Provided also, such foreign vehicle owned by a non-resident person shall not be required to be registered in this State unless being used in the furtherance of a commercial or industrial enterprise."

Oregon Compiled Laws Annotated, 1940, vol. 8, § 115-132. This Oregon statute is rather elaborate and reflects, according to the footnotes, amendments in 1923, 1927, 1929, 1931, 1933 and 1935. In brief the provisions are that nonresident owner of a motor vehicle licensed in another state shall, not later than 24 hours after commencing to operate on any highway in Oregon, apply to the Secretary of State or other agency which has been designated by the Secretary of State, for a permit. It is then provided that upon the receipt of said application the Secretary of State, if satisfied of certain facts including a showing by the applicant "That he has not and is not engaged in any gainful employment in this state" a permit will be issued, etc.

In still other states, the classification is made to turn on the use of the nonresident car in connection with the nonresident's occupation in the state.

It will be noticed that the language is varied and it would be rather difficult to say that if a nonresident has accepted gainful employment in the state and uses his automobile even for nothing more than driving to and from his work, he is not operating it in furtherance of his employment or in connection with his employment.

The value of this research and citations as a result thereof is to emphasize that when so many states of the Union have followed the same policy of classification as did the New Mexico Legislature without drawing a challenge on constitutional grounds, our court should avoid a conclusion that such classification is entirely without reason and is arbitrary and capricious, and therefore offensive to the Fourteenth Amendment.

Seeking a basis for the classification which may have seemed reasonable to our legislature of 1941 (and the legislatures of Kentucky, South Carolina, Florida, and other states mentioned supra) it may be judicially noticed that the class of non-resident owners of automobiles remaining in the state for three months and not gainfully employed is made up largely of tourists drawn to New Mexico by its renowned climate and historic background. This class are usually free spenders and it may be that the legislature thought this circumstance would compensate for the loss of license fees. If the concession to use the highways of the state by this class for three months without contributing through payment of license fees may have been thought by the legislature to be reasonable, I am unable to say that the curtailment of the concession in case the visitors enter into competition with the resident toiler is unreasonable. It has been suggested on behalf of appellee that an enforcement of the act may keep seasonal labor from coming here in time of need to pick the cotton and the cantaloupe. On the other hand it has been suggested that the theory of restrictions in the form of tariffs and license fees to supposedly protect home markets and home laborers, has much support. The arguments pro and con on these respective theories of economic advantage are many and they are vigorously waged. That it had seemed reasonable to the legislatures of South Carolina, Florida, Kentucky, Idaho, Louisiana, Minnesota, Montana, Nevada, Oregon and other states to base a distinction as between nonresidents who entered the state upon pleasure bent and those who came to enter into competition with home labor and local business, affords support to our legislature of 1941, in making a similar distinction. At any rate, the idea was not new in 1941 and our legislature doubtless weighed the economic advantages and acted with deliberation and advisedly.

I do not aspire to substitute my judgment for that of the legislature. Being convinced that the Act could "have seemed reasonable to the legislature" precision requires that I do not concur in what appears to me an intrusion upon the legislative department. I dissent.