APPEAL from the Superior Court of Cook County; the Hon. GEORGE
M. FISHER, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Plaintiffs appeal directly to this court from a decree of the superior court of Cook County dismissing for want of equity plaintiffs' amended and supplemental complaint for an injunction restraining defendants, the Secretary of State and other law enforcement officers, from enforcing the 1951 and 1953 amendments to the Motor Vehicle Law, (Ill. Rev. Stat. 1951, chap. 95 1/2, pars. 9, 12a and 22; Ill. Rev. Stat. 1953, chap. 95 1/2, pars. 9, 9a-9g, and 12a,) and for an order impounding fees paid pursuant thereto in the State protest fund. The validity of a State statute and revenue of the State being directly involved, the appeal properly comes direct to this court.
The defendants' motion to dismiss and the trial court's decree are based solely on the ground that all issues tendered by the amended and supplemental complaint have been adjudicated adversely to the plaintiffs by the decision of this court in Bode v. Barrett, 412 Ill. 204, Co-ordinated Transport, Inc. v. Barrett, 412 Ill. 321, affirmed in 344 U.S. 583, 97 L.ed. 567, 74 S.Ct. 468, and Agricultural Transportation Association v. Carpentier, 2 Ill.2d 19. The trial court having decided the case on motion to dismiss, all facts well pleaded in plaintiffs' complaint must be taken as true.
There are numerous parties plaintiff to this suit who are residents of the State of Illinois, and who as owners of motor vehicles of the second class (trucks, etc.) applied for registration thereof and paid the demanded fees under protest. The plaintiff Waller is a nonresident of the State of Illinois, a resident of Wichita, Kansas, and the owner of motor vehicles of the second division. He operates as a contract carrier in the States of Kansas, Missouri, and Illinois, and his business in Illinois consists of picking up goods and freight in Illinois and delivering the same to Missouri and Kansas. He does not do any intrastate business in Illinois, and the taxes imposed by the 1951 amendment are such that it will not be economically feasible for him to continue to conduct interstate commerce between Illinois, Missouri, and Kansas. The plaintiff Waller purports to sue in a representative capacity on behalf of all owners of motor vehicles of the second division, as defined in the act, who are engaged solely in interstate commerce in Illinois and who do not engage in intrastate commerce in Illinois.
The complaint alleges passage of the 1951 amendment to the Motor Vehicle Law (Ill. Rev. Stat. 1951, chap. 95 1/2, pars. 9, 12a and 22) and charges the act is unconstitutional on the same grounds asserted in Bode v. Barrett, 412 Ill. 204. Reference is made to the Bode case for a statement as to the nature of said 1951 amendment, the historical development of the Illinois Motor Vehicle Act so far as pertinent, and the numerous constitutional issues raised against the amendatory act.
The amended and supplemental complaint adopts the allegations of the original complaint, adds numerous additional parties plaintiff, alleges the passage of the 1953 amendment to the Motor Vehicle Act, (Ill. Rev. Stat. 1953, chap. 95 1/2, pars. 9, 9a-9g, and 12a,) and alleges its unconstitutionality for all of the reasons alleged in the original complaint and for additional reasons hereinafter set forth.
The 1953 amendment, after scaling downward the increased flat annual license fee graduated in amount by brackets according to gross weight scheduled to go into effect January 1, 1954, by the 1951 amendment, reinstated an optional mileage weight tax abolished by the 1951 amendment, with a limiting factor of a minimum guaranteed mileage weight tax graduated in amount by brackets according to gross weight. Section 20 (par. 22) of the Motor Vehicle Law was not amended by the 1953 act, so that no provision is made in the act for reciprocity agreements with other States as to persons electing to pay on a mileage basis, although there is such provision as to persons paying the flat annual license fee.
The constitutional objections urged against the 1953 amendment, in addition to those urged against the 1951 amendment, are:
(a) Section 9-A (par. 9b) of the act in establishing minimum guaranteed mileage weight taxes, maximum mileage permitted under guaranteed tax, and a mileage weight tax for mileage in excess of guaranteed mileage, is arbitrarily discriminatory between different classes of owners and does not bear a reasonable or rational relation between the amount of compensation exacted and the use of the highways.
(b) Sections 9 and 9-A of the act in their combined application result in arbitrary, capricious and discriminatory consequences with respect to combinations of second division vehicles of the same aggregate weights as reflected in a certain tabulation set forth.
(c) Section 20, in providing reciprocal exemption for nonresidents as to flat weight annual license fees and failing to provide such exemption in the case of mileage weight taxes, nullifies such purported election between flat weight tax and mileage weight tax, and the act is therefore arbitrary, capricious and discriminatory.
(d) The minimum guaranteed mileage weight tax is so large as to be subject to the same objections as the 1951 act.
(e) The fees and taxes imposed by the 1953 act are so grossly immoderate that the amount of revenue exacted is greatly in excess of the benefits for the privilege of traveling upon the State highways. The complaint alleges in this respect that such fees and taxes, when added to all other revenue derived by the State for the privilege of using State highways, are greatly in excess of the cost of constructing, widening, reconstructing, improving and maintaining State highways; that at the end of the fiscal year on June 30, 1953, the State had exacted from users of the State highways the sum of $43,503,595 in excess of the amount necessary for State highway purposes, and that such sum remained unexpended and had to be ...