(209 P.) CAMAS STAGE CO., Inc., v. KOZER, (Supreme Court of Oregon. July 29, 1922.) 1. Constitutional law 48-Construction supporting validity of act preferred. Where a statute is fairly susceptible of a construction sustaining the validity of the act and a construction rendering it unconstitutional, the former construction must be adopted. 2. Statutes 184-Declared purpose controlling unless incompatible with effect. The declared purpose of an act is to be accepted as true, unless incompatible with its meaning and effect. 3. Commerce 10-Congress not having acted, state automobile law, requiring registration of interstate automobiles, valid. tration fees before driving them on the highways, or has been established by the evidence, the presumption is that the license fee is reasonable. 8. Statutes -214-Magazine article held not authority as to meaning. An article published in a magazine is not authority by which the court can ascertain the meaning of a statute. 9. Licenses 7 (2)—Graduate fee for operating automobiles on highway held valid. Gen. Laws 1921, p. 707, as amended by Gen. Laws (Sp. Sess.) 1921, p. 23, imposing a graduate automobile license fee dependent on the weight of the car, the revenue so derived, being used for highway purposes and . valid enactment, for its object is to preserve being a privilege and not a property tax, is a the highways and the public welfare. 193-Stat 10. Licenses 7(1)-Taxation Congress having passed no statute on the subject, Gen. Laws 1921, p. 707, §§ 4, 37, 51, and section 25 as amended by Gen. Laws (Sp. Sess.) 1921, p. 24, § 3, requiring automobile Gen. Laws 1921, p. 707, imposing a privowners to pay registration fees before drivilege tax on automobiles, and section 26 thereing their cars on the highway, are not viola- of, exempting automobiles from paying an ad tions of Const. U. S. art. 1, § 8, authorizing valorem tax, is valid. Congress to regulate interstate commerce, as applied to a nonresident corporation operating. motor vehicles for hire between a point within and a point without the state. 4. Constitutional law 287-State automobile law, requiring registration, valid ́exercise of police power. Gen. Laws 1921, p. 707, as amended by Gen. Laws (Sp. Sess.) 1921, p. 23, requiring owners of motor vehicles to pay registration fees before driving them on the highways, being an enactment within the state's police power, is not violative of Fourteenth Amendment of the federal Constitution as applied to a nonresident corporation. 5. Corporations 642(1) -Foreign corporation, operating bus line between point within and point without the state, held "doing business within the state." Equity 66-Maxim one seeking equity must do equity applied. In an action to restrain the state from collecting automobile registration fees, where plaintiff admitted that there was some money due to the state, the maxim one who seeks equity must do equity applies. Appeal from Circuit Court, Marion County; George G. Bingham, Judge. Action by the Camas Stage Company, Incorporated, against Sam Kozer, as Secretary of State of Oregon. Judgment for defendant, and plaintiff appeals. Affirmed. This is a suit in equity. The plaintiff is a corporation of the state of Washington, engaged in operating motor vehicles carrying A foreign corporation, engaged in carrying passengers for hire within the state of Washpassengers for hire by motor vehicles between ington and between the states of Washington a point within and a point without the state, and Oregon, and, while thus engaged, drives is doing business within the state within Gen. its motor vehicles over the highways of the Laws 1921, p. 734, § 37, exempting nonresi- state of Oregon. Sam Kozer, the defendant, dents from paying automobile license fees, and is Secretary of State of Oregon, and, by virproviding that foreign corporations doing busi- tue of his office is required to enforce the ness within the state shall be considered resi-provisions of the Oregon Motor Vehicle Law. dents. 6. Licenses 35-Party claiming exemption must present clear case. Automobile owner, claiming an exemption from a statute imposing a license on automobiles, has the burden of proving the exemption, and must present a clear case. 7. Licenses 7(9)-Fee presumed reasonable. Since nothing to the contrary appears on the face of Gen. Laws 1921, p. 707, as amended by Gen. Laws (Sp. Sess.) 1921, p. 23, requiring owners of motor vehicles to pay regis The purpose of this suit is to restrain the secretary of state from enforcing the pro visions of the Motor Vehicle Law in the matter of collecting registration fees demanded by him. The Oregon Motor Vehicle Law provides that * "Every owner of a motor vehicle shall, before he operates or drives the same upon the highways of this state," cause the same to be registered. Section 4, chapter 371, General Laws of Oregon, 1921. Section 25, chapter 371, General Laws of Oregon 1921, as amended by section 3, chap For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ter & General Laws of Oregon, Special Session 1921, establishes the fees required to be paid to the secretary of state upon registration and before the issuance of license, as follows: "Motor vehicles, except motor trucks, shall pay the following fees, based on the light weight of such vehicle, to wit: Weighing 1,700 pounds or less..... Weighing over 1,700 pounds and not over 2,100 pounds Weighing over 2,100 pounds and not over 2,500 -pounds tion 8, article 1, of the Constitution of the United States, and for other reasons hereinafter noted. The defendant filed his demurrer, challenging the sufficiency of the complaint and the jurisdiction of the court of the subject-matter of the suit. The demurrer was sustained, and the suit dismissed. Plaintiff assigns error of the court in sustaining defendant's $15.00 demurrer and in rendering and entering a 22 00 decree dismissing its amended complaint. Dan E. Powers and F. E. Swope, both of Portland, for appellant. 28 00 Weighing over 2,500 pounds and not over 2,900 pounds 34.00 Weighing over 3,300 pounds and not over 3,700 pounds 47 00 Weighing over 3,700 pounds and not over 4,100 pounds Weighing over 4,100 pounds and not over 4,500 pounds Weighing over 4,500 pounds and not over 4,900 pounds Weighing over 4,900 pounds and not over 5,300 pounds Weighing over 5,300 pounds and not over 5,700 pounds 79 00 I. H. Van Winkle, Atty. Gen., and Grace E. Smith, Asst. Atty. Gen., for respondent. BROWN, J. (after stating the facts as above). There is a marked difference be55 00 tween the regulatory act designated chapter 62 00 136, Laws of 1905, under which 218 automobiles were registered and the regulatory law 71 00 in force in 1921, under which 118.615 motor vehicles were registered. The legislation of this state, in providing millions upon millions of dollars for the construction and reconstruction of highways, has kept pace with the ever-increasing number of motor vehicles "Motor busses shall pay $4 for each passen- used upon the roads of the state. The legisger, in addition to the fees prescribed accord-lative assembly, in the enactment of regulaing to the weight of the motor vehicle, at the rated passenger capacity, allowing twenty inches of seating space for each passenger." Weighing over 5,700 pounds.. 97 00 The weight and seating capacity of each of plaintiff's motor vehicles so operated is as follows: One White automobile, bearing Washington license No. 185087; weight 4,500 pounds; seating capacity, 12 passengers. One White automobile, bearing Washington license No. 185086; weight 4,810 pounds; seating capacity, 12 passengers. One White automobile, bearing Washington license No. 185088; weight 5,415 pounds; seating capacity, 12 passengers. One White automobile, bearing Washington license No. 185089; weight 5,800 pounds; seating capacity, 15 passengers. If the provisions of the Oregon Motor Vehicle Law are enforced against the plaintiff, the company will be compelled to pay a respective license fee, or tax, of $110, $119, $136, and $157, on the motor vehicles described above. Such "registration and license fees imposed by this act shall be in lieu of all other taxes and licenses" exacted by the state upon the vehicle so registered and licensed. Section 26, c. 371, Gen. Laws of Oregon, 1921. * Section 37 of the act of 1921 provides for the exemption of nonresident owners, but such favor does not include a foreign corporation conducting business in Oregon. Plaintiff avers that the Oregon Motor Vehicle Law, in so far as it attempts to require it to pay an annual license fee, or tax, upon each of its motor vehicles, is void, in that it is in contravention of subdivision 3, sec tory laws, has declared the necessity for good roads in the successful operation thereon of the motor vehicle, and likewise has recognized, the destructive character of such vehicles when driven upon the highways. That we shall learn and give effect to the intention of the Legislature is a primary rule in the exposition of statutes. The Oregon Motor Vehicle Law is the written expression of the legislative will relating to the regulation of certain vehicles that may be operated upon the highways of this state. We have searched all the laws enacted by our legislative assembly pertaining to the regulation of motor vehicles, for the purpose of discovering the legislative will. The plaintiff asserts that this act, as applied to it, offends against the interstate commerce clause of the Constitution of the United States. [1] A rule so commonplace that it requires no citation of authority to sustain it is that where a statute is fairly susceptible of two constructions, one of which sustains the validity of the act while the other will render it unconstitutional, the construction that will support the validity of the law must be adopted. The Legislature declared that the "purpose, object and intent" of the Motor Vehicle Law "is to provide a comprehensive system for the regulation of all motor and other vehicles." [2] We hold that "The declared purpose of the act is to be accepted as true, unless incompatible with its meaning and effect." White Dental Mfg. Co. (209 P.) v. Commonwealth, 212 Mass. 35, 98 N. E. 1056, able sums for the use of such booms in the Ann. Cas. 1913C, 805, 808, citing Hazen v. Es- | floating of logs from a point within the state sex Co., 12 Cush. (Mass.) 475; Flint v. Stone to a point outside thereof, or vice versa. Tracy Co., 220 U. S. 107, 31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312. The character of the registration fees may be determined from the act. Section 51 of chapter 371, General Laws of Oregon 1921, enacts: "The provisions of this act contained are declared to be an exercise of the police powers of the state of Oregon, and this act shall be known as the 'Oregon Motor Vehicle Law.'" While not absolutely controlling, the legislative designation is an important factor in determining the character of the tax im- | posed. Portland v. Portland Ry., Light & Power Co., 80 Or. 271, 305, 156 Pac. 1058, citing Gray, Lim. of Tax. Power, p. 42; Briedwell v. Henderson, 99 Or. 506, 514, 195 Pac. 575. [3] Among the powers expressly granted to the national government is the control of interstate commerce. Article 1, § 8, of the Constitution, provides that to "The Congress shall have power regulate commerce with foreign nations, and among the several states. Congress has exercised the power granted it in relation to interstate commerce in a variety of acts, but it has passed no statute that in any way inhibits the exaction by the state of the fees in question by way of compensation from the plaintiff for the privilege of driving its motor cars over the highways of this state. State laws may affect interstate commerce without conflicting with the constitutional provision appealed to. In Transportation Co. v. Parkersburg, 107 U. S. 691, 699, 2 Sup. Ct. 732, 27 L. Ed. 584, it was held that a state may erect or authorize the construction of wharves along the banks of its navigable rivers which are used for commerce between the states, and charge, or authorize to be charged, wharfage fees for the privilege of receiving and landing thereon passengers and freight which come from other states, without infringing upon the commerce clause of the Constitution of the United States. In Huse v. Glover, 119 U. S. 543, 7 Sup. Ct. 313, 30 L. Ed. 487, it was held that a state may construct locks in such rivers in order to improve the navigation thereof, and charge reasonable tolls to persons using such locks while engaged in interstate commerce. In Lindsay & Phelps Co. v. Mullen, 176 U. S. 126, 20 Sup. Ct. 325, 44 L. Ed. 400, it was held that a state may construct or authorize the construction of booms for the purpose of increasing the facilities with which the business of floating and gathering logs may be conducted thereon, and lawfully charge, or authorize to be charged, reason209 P.-7 The case of Kane v. New Jersey, 242 U. S. 160, 37 Sup. Ct. 30, 61 L. Ed. 222, affirming 81 N. J. Law, 594, 80 Atl. 453, L. R. A. 1917B, 553, Ann. Cas. 1912D, 237, is illuminating, instructive, and strictly in point. The New Jersey statute (P. L. 1908, p. 615, § 4) provides, among other things, that: "Every resident of this state, and every nonresident, whose automobile shall be driven in this state, shall, before using such vehicle on the public highways, register the same, and no motor vehicle shall be driven unless so registered." Kane, a resident of the state of New York, while driving his automobile along the highways of the state of New Jersey on a journey from his place of residence to some point in the state of Pennsylvania, was arrested for violating the Motor Vehicle Law of New Jersey, charged with not having registered his machine or paid the fee required for such registration. Prosecution for his offense followed the arrest, resulting in his conviction. The conviction was affirmed in the review of the cause in the Supreme Court, and by the Court of Errors and Appeals of the state of New Jersey. On a review of that case in the Supreme Court of the United States, Mr. Justice Brandeis, in speaking for the court, said: "The moneys received from license and registration fees in excess of the amount required for the maintenance of the Motor Vehicle Lepartment are to be applied to the maintenance of the improved highways. * * The following facts were stipulated: Kane had been duly licensed as a driver under the laws of both New York and New Jersey. He had registered his car in New York but not in New Jersey. * When arrested he was on his way from New York to Pennsylvania. The aggregate receipts from license and registration fees for the year exceeded the amount reVehicle Department, so that a large sum bequired to defray the expenses of the Motor came available for maintenance of the improved roads of the state. Kane contended that the statute was invalid as to him, a nonresident, because it violated the Constitution and laws of the United States regulating interstate commerce and also because it violated the Fourteenth Amendment. * * of motor vehicles on its highways has been re"The power of a state to regulate the use cently considered by this court and broadly sustained. It extends to nonresidents as well as to residents. It includes the right to exact reasonable compensation for special facilities afforded, as well as reasonable provisions to insure safety, and it is properly exercised in imposing a license fee graduated according to the horse power of the engine. Hendrick v. Maryland, 235 U. S. 610. It is clearly within the discretion of the state to determine whether the compensation for the use of its highways by automobiles shall be determined by way of a fee, payable annually or semi-annual ly, or by a toll based on mileage or otherwise., U. S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1511, * * * In Hendrick v. Maryland, it appeared 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, only that the nonresident drove his automobile 18; Monongahela Nav. Co. v. United States, into the state. In this case it is admitted that 148 U. S. 312, 13 Sup. Ct. 622, 37 L. Ed. he was driving through the state. The distinc- 463; Covington Bridge Co. v. Kentucky, 154 tion is of no significance." U. S. 204, 209, 14 Sup. Ct. 1087, 38 L. Ed. In the case of Hendrick v. Maryland, 235 962; Huse v. Glover, supra; Trans. Co. v. U. S. 610, 622, 624, 35 Sup. Ct. 140, 142 (59 | Parkersburg, supra; Lindsay & Phelps Co. L. Ed. 385) Mr. Justice McReynolds, in expressing the opinion of the court, said: number of those who own such vehicles. As is v. Mullen, supra. [4] The plaintiff invokes the protection of the Fourteenth Amendment to the Constitu tion. That amendment does not offer the plaintiff a refuge from the demands of the Motor Vehicle Law, which is an enactment within the police power of the state. "The movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves. Their success depends on good roads, the construction and maintenance of which are exceedingly The Supreme Court of the United States expensive; and in recent years insistent de- has frequently declared that the limitations mands have been made upon the states for bet-contained in the Fourteenth Amendment ter facilities, especially by the ever-increasing were not designed to limit, or in any way interfere with, the state's exercise of its police power. Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923; Jones v. Brim, 165 U. S. 180, 17 Sup. Ct. 282, 41 L. Ed. 677; L'Hote v. New Orleans, 177 U. S. 587, 596, 20 Sup. Ct. 788, 44 L. Ed. 899; Lochner v. New York, 198 U. S. 45, 53, 25 Sup. Ct. 539, 49 L. Ed. 937, 3 Ann. Cas. 1133. In Barbier v. Connolly, supra, Mr. Justice Field wrote: well known, in order to meet this demand and accommodate the growing traffic the state of Maryland has built and is maintaining a system of improved roadways. Primarily for the enforcement of good order and the protection of those within its own jurisdiction the state put into effect the above described general regulations, including requirements for registration and licenses. A further evident purpose was to secure some compensation for the use of facilities provided at great cost, from the class for whose needs they are essential and whose "But neither the amendment [Fourteenth operations over them are peculiarly injurious. Amendment]-broad and comprehensive as it "In the absence of national legislation cover-is-nor any other amendment, was designed to ing the subject a state may rightfully prescribe uniform regulations necessary for public safety and order, in respect to the operation upon its highways of all motor vehicles--those moving in interstate commerce as well as others. And to this end, it may require the registration of such vehicles and the licensing of their drivers, charging therefor reasonable fees graduated according to the horse power of the engines-a practical measure of size, speed, and difficulty of control. This is but an exercise of the po- If it be a fact that the enforcement of this act in the case at issue may incidentally affect interstate commerce, such regulations will not be for that reason declared invalid. They are lawful until Congress acts. Kane v. New Jersey, supra; Hendrick v. Maryland, supra; Minnesota Rate Cases, 230 interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity." In the case of Union Fishermen's Co. v. Shoemaker, 98 Or. 659, 674, 193 Pac. 476, 481, this court defines "police power" as follows: A concise statement, which emphasizes the thought that the field within which the police power may be exerted is very broad, is found in State v. Redmon, 134 Wis. 89, 105, 114 N. W. 137, 126 Am. St. Rep. 1003, 15 Ann. Cas. 408, 14 L. R. A. (N. S.) 229, where it is said: 'It is the power to make all laws which in contemplation of the Constitution promote the public welfare.' "The police power embraces the whole sum of inherent sovereign power which the state possesses, and, within constitutional limitations, may exercise for the promotion of the order, safety, health, morals, and general welfare of society. 12 C. J. 904; Stettler v. O'Hara, 69 Or. 519, 531, 139 Pac. 743, Ann. Cas. 1916A, 217, L. R. A. 1917C, 944; Mill Creek Coal & Coke Co. v. Pub. Service Com. (W. Va.) 100 S. E. 557, 7 A. L. R. 1081." The term "police power" has sometimes been defined and used in a narrow sense, embracing merely regulations for the preservation of the order, peace, health, morals, and safety of the community. More recently, however, it has been extended to embrace (209 P.) a larger welfare. The police power of the motor vehicles upon the highways of this state is not, and, in the nature of things, state. It is not a tax upon property. It is a cannot be, a fixed and rigid quantity. charge upon privilege. That such a tax is Changed conditions require different regula- constitutional has been so well established tions. by judicial decision that there can be no doubt as to its validity. The Oregon Motor Vehicle Law does not tax the property of plaintiff one dollar. It does, however, exact compensation for the privilege of operating its cars upon the highways of the state. 2 Cooley on Taxation (3d Ed.) at pp. 1125, 1126, says: "There are some cases in which levies are made and collected under the general designation of taxes or some term employed in revenue laws to indicate a particular class of taxes where the imposition of the burden may fairly be referred to some other authority than to that branch of the sovereign power of the state tioned and collected. The reason is that the under which the public revenues are appor [5, 6] The plaintiff asserts exemption from the payment of the fees established by the act, and avers that it is not doing business in this state within the meaning of section 37 thereof. Plaintiff transacts some substantial part of its ordinary business in Oregon. 14a C. J. §§ 3977, 3992. In the conduct of its business it carries passengers for hire, by motor vehicle, from the state of Washington to Portland, Or., and likewise carries passengers for hire from that point in the state of Oregon over the highways of Oregon to the state of Washington. We hold that plaintiff's claim is without merit. Moreover, it is a rule of frequent application that he who would shelter himself under an exemp-imposition has not for its object the raising of tion clause must present a clear case, free from all reasonable doubt, as such laws, being in derogation of the general rule, must be strictly construed as against the person claiming the exemption and in favor of the public. 17 R. C. L. 522; Northwest Auto Co. v. Hurlburt (Or.) 207 Pac. 161; Wallace There is a diversity of expression by the v. Board of Equalization, 47 Or. 584, 86 Pac. 365. In the enforcement of the law under courts as to the term applied to the exacconsideration, the collection of a fee for reg-Auto Co. v. Hurlburt, supra, Mr. Justice Mctions in regulatory measures. In Northwest istration is the rule and exemption the exception; therefore the burden of establishing it is upon him who claims it. 1 Cooley, Taxation (3d Ed.) p. 456. Under the facts in the case at bar, our holding is not inconsistent with the following cases decided on a different set of facts: Hacheny v. Leary, 12 Or. 40, 7 Pac. 329; Bertin & Lepori v. Mattison, 69 Or. 470, 139 Pac. 330; Spaulding v. McNary, 64 Or. 491, 130 Pac. 391, 1128; Vermont Farm Machine Co. v. Hall, 80 Or. 308, 156 Pac. 1073; Deardorf v. Idaho Nat. Harvester Co., 90 Or. 425, 177 Pac. 33; Endicott, Johnson & Co. v. Multnomah Co., 96 Or. 679, 190 Pac. 1109; Major Creek Lumb. Co. v. Johnson, 99 Or. 172, 195 Pac. 177. revenue, but looks rather to the regulation of tion and the other for revenue. Bride wrote: "The courts in speaking of financial exactions of the character herein discussed have times 'privilege taxes.' Again, they are somesometimes called them licenses,' and sometimes spoken of as 'license fees' or license taxes.' But, by whatever name they may be called, they partake of the nature of a tax in many respects, and the designation given in the statute is immaterial, the courts being interested in the substance, rather than in the name. Pac. 575], we held it to be properly called a In Briedwell v. Henderson [99 Or. 506, 195 privilege tax.'" [10] The legislative assembly was empowered to enact a law requiring a tax on privilege, and exempting such property from pay In Briedwell v. Henderson, 99 Or. 506, 195 Pac. 575, we quoted with approval the fol [7] Nothing to the contrary appearing up-ing an ad valorem tax. on the face of the law itself or having been established by evidence, we assume that the amount of the license fee is reasonable.lowing: Huddy on Automobiles, p. 120; Vernor v. Secretary of State, 179 Mich. 157, 146 N. W. 338, Ann. Cas. 1915D, 128; Berry on Automobiles, p. 111. [8, 9] The plaintiff avers that the fee demanded by the law for registration is, in part, a property tax, and offers in support of his contention an article published in a magazine. This article printed in plaintiff's brief is not authority by which we may ascertain the meaning of the law. The Oregon Motor Vehicle Law, by its express terms, exacts a fee frequently called by the courts a "privilege tax" for operating "What classes of property shall be taxed and what shall be exempted except as restricted by the Constitution is a question that rests with the discretion of the Legislature. It is within legislative authority to exempt from other forms of taxation, property which pays a specific tax, whether or not the tax is levied on the property itself or on the right to use it in a certain way." Jasnowski v. Board of Assessors, 191 Mich. 287, 157 N. W. 891. Again, in Bried well v. Henderson, supra, we designated the registration fee a tax on privilege and supported the statement with the following: |