APPEAL from the Circuit Court of Sangamon County; the Hon.
CLEM SMITH, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 23, 1952.
This is a direct appeal by the Secretary of State, the Auditor of Public Accounts and the Treasurer of the State of Illinois, defendants below, from a final decree of the circuit court of Sangamon County, which declared unconstitutional and void an act of the Sixty-seventh General Assembly, approved by the Governor of Illinois on July 9, 1951, entitled "An Act to amend Sections 9, 11a and 20 and to repeal Sections 9b, 9c, 9d, 9e, 9f, 9g, 9h, 9i, 9j, 9k and 9l of the `Motor Vehicle Law,' approved June 30, 1919, as amended," (Laws of 1951, p. 1147,) and which enjoined and restrained the defendants from expending public funds in the administration and enforcement of the act and from doing any acts to enforce or administer the act.
In substance, section 9 of the Motor Vehicle Law as amended by the 1951 act (Ill. Rev. Stat. 1951, chap. 95 1/2, par. 9) imposed on all owners of vehicles of the second division as defined in the act (trucks, busses, tractors, semitrailers, trailers, etc.) for the use of the public highways a substantially increased flat annual license tax, graduated in amount by brackets, according to gross weight, including weight of the vehicle and maximum load. Subsections (h), (h-1), and (i) to (i-4) inclusive, of said section, classified vehicles as to the number of wheels as well as gross weight. Subsection (j) provides that a self-propelled vehicle operated as a tractor and one semitrailer shall be considered as one vehicle in computing fees, but that a semitrailer used with any device for converting it to a trailer or attached to a leading trailer or a semitrailer shall be licensed as a trailer. Subsection (k) provides that each additional semitrailer to be used with a tractor, licensed as above, shall pay a license fee of $5.
Subsection (l) imposes a license tax on trailers graduated in brackets according to gross weight, including weight of trailer and maximum load, but different from other classifications in both weight brackets and tax. Thereafter, said subsection imposes a graduated license tax according to gross weight on "Two axle vehicles which are designed and used for transporting more than seven passengers entirely within the territorial limits of a single municipality or a single municipality and municipalities contiguous thereto, or a close radius thereof, are equipped with hydraulic shock absorbers and whose rates for transportation are subject to the regulation of the Illinois Commerce Commission," at a substantially lesser rate than is imposed on other four-wheel vehicles in the same general gross-weight bracket.
The last paragraph of said section 9 as amended exempts, from the operation of the act, farm tractors, traction engines, certain specifically described farm machinery, "or like vehicles, trailers or semi-trailers used in connection therewith, which are used primarily in the agricultural pursuits of the owner thereof or in connection with the agricultural pursuits of others, * * * but nothing in this proviso shall exclude from registration, truck tractors, trucks, trailers or semi-trailers engaged in transporting agricultural products."
The amendatory act of 1951 also repealed outright former sections 9b to 9l, inclusive, of the Motor Vehicle Law (Ill. Rev. Stat. 1949, chap. 95 1/2, pars. 10a to 10k, incl.,) which sections provided for an optional mileage weight license tax in lieu of a flat weight tax on vehicles of the second division at the election of the vehicle owners under certain conditions.
Section 11a and 20 of the Motor Vehicle Law (Ill. Rev. Stat. 1951, chap. 95 1/2, pars. 12a and 22,) were amended by striking therefrom all reference to the optional mileage weight taxes previously contained therein. Otherwise, they are identical with the previously existing sections.
Section 20 of the act (Ill. Rev. Stat. 1951, chap. 95 1/2, par. 22,) specified the manner of application of the act to nonresident owners and, in order to effectuate the purpose of the section, authorizes the Secretary of State to enter into reciprocal agreements with responsible officers of other States as to license fees, permits, and flat taxes, under which nonresidents' second division vehicles may be operated in Illinois without an Illinois registration, provided like privileges are accorded to vehicles owned by Illinois citizens.
The plaintiffs brought this suit as citizens and taxpayers of the State of Illinois on behalf of themselves and all other taxpayers of the State pursuant to the statute authorizing suits in equity by taxpayers, in proper cases, to restrain the disbursement of public moneys by officers of the State. (Ill. Rev. Stat. 1951, chap. 102, pars. 11-16.) Each of the plaintiffs is a citizen, a taxpayer, the owner of a truck currently and properly registered, and the holder of a certificate of convenience and necessity as a local carrier under the provisions of the Illinois Truck Act. Ill. Rev. Stat. 1951, chap. 95 1/2, pars. 240-282.
The complaint filed by the plaintiffs directly challenged the constitutionality of the amendatory act in question in numerous respects which may be summarized as follows:
I. By ignoring the difference in use of the highways by the various established classes of vehicles, viz: line-haul and other common carriers, local carriers, private carriers, contract carriers and specialized carriers, said act imposes a burdensome graduated flat tax which,
a. Bears no fair relation to the privilege of using the highways and is in violation of sections 1 and 2 of article IX of the constitution.
b. Has no consistent theme of classification, contrary to sections 1 and 2 of article IX and to section 22 of article IV of the constitution.
c. Thereby is discriminatory as between classes of users and confiscatory as to some, in violation of section 2 of article II of the Illinois constitution, and the fourteenth amendment to the constitution of the United States.
II. The amendment violates article III and section 2 of article II of the constitution in the following respects:
a. It creates a favored class of two-axle busses operating in a municipality or municipalities or "close radius thereof" without defining said terms.
b. It bases the tax on "maximum load" while giving no standard for determining the same.
c. It creates confusing and indefinite classifications and omits vehicles authorized by law to use the road.
d. It authorizes the Secretary of State to enter into reciprocal agreements with responsible officers of other States, which is in violation of section 8 of article I of the constitution of the United States.
e. It creates an indefinite agricultural exclusion.
f. It creates a confusion as to trucks of school districts or imposes a heavy tax thereon, which is in violation of sections 3 and 10 of article IX of the Illinois constitution.
III. The heavy flat tax imposed discriminates against Illinois residents and nonresidents from nonreciprocal States in favor of nonresidents from reciprocal States, and imposes an undue burden on interstate commerce in violation of section 8 of article I of the constitution of the United States, and is arbitrary and discriminatory in violation of section 2 of article II of the Illinois constitution and the fourteenth amendment to the constitution of the United States.
The trial court, after hearing the evidence, found the act unconstitutional on each of the counts alleged and entered an injunction order as previously stated.
Both parties attach importance to the historical development of the motor vehicle law in Illinois and a correct understanding thereof is pertinent to the decision in this case, particularly as concerns vehicles in the second division (all vehicles other than those designed for carrying not more than seven persons.)
The original Motor Vehicle Law was approved on June 30, 1919, and, as amended from time to time, remains in effect today. (Ill. Rev. Stat. 1951, chap. 95 1/2, pars. 1 et seq.) Section 3 of the original act fixed maximum weights and dimensions of vehicles and was amended from time to time until finally repealed in 1935 upon adoption of the Uniform Act Regulating Traffic on Highways, (Ill. Rev. Stat. 1951, chap. 95 1/2, pars. 98 et seq.,) which covered the same subject matter.
Section 9 of the act, since its adoption, has continuously imposed a flat annual license fee for the use of the highways upon second division vehicles, based upon gross weight of the vehicle and maximum load, graduated in amount according to weight brackets or classifications. Amendments from time to time added new weight brackets, revised existing weight brackets, and established separate classifications and brackets for special types of vehicles such as trailers, semitrailers, combinations and busses. Until the 1951 amendment in question, no significant or substantial increases had been made in license fees imposed by section 9. The section, as originally enacted, exempted tractors, traction engines, or other similar vehicles used exclusively in agricultural pursuits, from its application. This proviso excluding farm vehicles was amended in 1931 by adding a number of specifically described agricultural machines and the following language: "or other similar vehicles or trailers, or semi-trailers used in connection therewith which are used primarily in the agricultural pursuits of the owner thereof or in connection with the agricultural pursuits of ...