James Edward Tyson was arrested on a warrant issued out of the County Judge's Court for Leon County charging the offense of operating a motor vehicle carrying a load of more than sixteen thousand pounds including the weight of the motor vehicle upon State Highway No. One outside of a municipal corporation and that the vehicle was not a certified common carrier, nor a certified private contract *Page 512 carrier. It is charged that the act violates Section 4 of Chapter 15625, Laws of Florida, 1931.
Tyson obtained a writ of habeas corpus and seeks release from custody upon the ground that the act in so far as it relates to the alleged offense is unconstitutional because the provision of law mentioned discriminates unfairly, arbitrarily and unreasonably against Tyson, who is the operator of a private truck for private use.
If the act is bad for the reason that it discriminates against one who operates a private truck for private use upon the highway, the petitioner should be remanded because the petition does not allege that the truck for the operation of which he was arrested and taken into custody was a private truck being operated for private use or certified as a private contract carrier. From anything to the contrary alleged in the petition, Tyson was operating an uncertified vehicle used as a common carrier or an uncertified vehicle used as a private contract carrier for which offense the warrant was issued and he was arrested.
Section 4 of Chapter 15625, supra, has no relation to the subject. That section relates to the payment of money into the State Treasury by the State Motor Vehicle Commissioner and amends Section 1031 Revised General Statutes as amended by Chapter 8410, Laws 1921, Section 1304 Compiled General Laws. The chapter relates to the registration of motor vehicles, the duties of the State Motor Vehicle Commissioner and the payment of fees and taxes upon the registration of motor vehicles.
Paragraph 4 of Section 3 of the Act prohibits the operating on a public highway outside of a municipal corporation of any motor vehicle carrying a load of sixteen thousand pounds including the weight of such motor vehicle and paragraph 11 of Section 4 prescribes a penalty of $500. to be paid by any person, firm or corporation violating the provisions of the act. Paragraph 17 *Page 513 of Section 3 prescribes a like penalty for operating over the highways of the State any motor vehicle which at the time of such operation shall not have affixed thereto the proper "license plate or tag issued by the State Motor Vehicle Commissioner." The act went into effect July 1st and was approved June 26, 1931, by the Governor.
Chapter 14764, Acts of Florida 1931, relates to the supervision and regulation by the Railroad Commission of persons, firms and corporations controlling and operating motor vehicles used in the business of transporting persons or property for compensation over the public highways of the State.
Section 2 of the act requires an "auto transportation company", operating a motor vehicle for transportation of persons or property on any public highway in the State to obtain, before doing so, a certificate of Public Convenience and Necessity or a permit from the Railroad Commission. Section 3 provides that when the "auto transportation company" operates as a common carrier of persons or property for a compensation it must obtain from the Railroad Commission a certificate that the public convenience and necessity requires such operation. Section 4 provides for obtaining from the Commission a certificate of convenience and necessity by an auto transportation company as a private contract carrier of persons or property on the public highway.
The term "Auto Transportation Company" is defined by the act to include natural persons as well as artificial persons. The only distinction made between the two classes of carriers in the application for certificates is that the common carrier is required to state the proposed time schedule of operation which the private carrier is not required to do and the latter must state the subject matter of the contracts under which the applicant desires to operate. No distinction is made as to requirements *Page 514 concerning territory to be served and specification of the tonnage of trucks.
Chapter 14764, supra, in Section 11 provides that no truck or trailer shall be authorized under any certificate of public convenience and necessity in common carriage to carry a load in excess of 12,000 pounds and the Commission shall by the terms of all certificates issued by it limit the load weight of every truck or trailer to not more than 12,000 pounds; that the carriage by any truck of more than 12,000 pounds shall be unlawful and subject the holder of the certificate to all the penalties prescribed by law and by the provisions of this act. The penalty prescribed for violating that provision of the law is the same as that prescribed for violating paragraph 4 of section 3, Chapter 15625, supra.
The two provisions of law are in irreconcilable conflict, though Section 8 of Chapter 15625, supra, contains a provision that "nothing in this act shall be construed to repeal any part of Senate Bill 411 passed at the Regular Session of the 1931 Legislature." Senate Bill 411 became Chapter 14764, supra. Section 8 of Chapter 15625, supra, expressly repeals all laws and parts of laws in conflict with the act. The two provisions are in conflict. The language of Paragraph 4 of Section 3 Chapter 15625, supra, is clear in meaning and unqualifiedly prohibits the operation of any motor vehicle on a public highway outside of any municipal corporation in the State carrying a load of more than sixteen thousand pounds including the weight of such motor vehicle. There is nothing in that provision of the law to construe. Its language is plain, certain and contains no ambiguity. There is no room nor occasion for interpretation or construction and being the latest expression of the Legislature upon the subject of the operation of motor vehicles must be taken to repeal that clause in section 11 of *Page 515 Chapter 14674, supra, which impliedly authorizes the Railroad Commission to grant a certificate of convenience and necessity to any "Auto Transportation Company" to operate a truck on the public highway carrying a load of twenty-four thousand pounds including the weight of the truck.
The two provisions of the two statutes cannot by any fair, liberal or strict construction be made to operate and be effective unless there is read into the statute an intent, not at all apparent by their words, that Chapter 14764,supra, was intended to apply to common carriers and Chapter 15625 was intended to apply to private carriers. Each motor vehicle is required to be registered and classified and carry a license plate showing the payment of registration fees and taxes provided by Chapter 15625, supra, but which prohibits its being used on the public highway outside any municipal corporation if it carries a load greater than sixteen thousand pounds including the weight of the vehicle.
In cases of conflicting provisions in different statutes the last enacted in point of time prevails, is the general rule. The repeal is measured by the extent of the conflict or inconsistency between the acts. See Nelden v. Clark, 20 Utah 382, 77 Am. St. Rep. 917; 36 Cyc. 1130; 25 R. C. L. 920.
The provision in Chapter 15625, paragraph 4 of Section 3, applies to all motor vehicles including trucks used for private use, or as private contract carriers or common carriers.
There was no purpose of the Legislature to create a classification of motor vehicles based upon a regulation of one class such as motor vehicles for commercial purposes for hire subject to regulation in the Railroad Commission and another class consisting of motor vehicles for private use or commercial purposes not for hire and not subject to regulation by the Railroad Commission. *Page 516 Such a classification would be palpably arbitrary in the first place, because considering the preservation of the public highways and the expense of maintenance and the convenience to the public of their use there can be no difference between the use of the highway by a private citizen for his personal and private convenience and the use of the highway by a person who conducts the business of a private or common carrier for hire so far as the injury to the highway by use of it is involved.
If, on the other hand, the carrier for hire has a special advantage over the private owner of a motor vehicle because the former may charge for his service in providing transportation while the latter may not it seems to be absurd that the advantage should be further increased by permitting the former, the carriage for hire, to use motor vehicles that produce greater damage to the highways by reason of their excessive weight, while denying to the latter, the private owner, the right to use motor vehicles of the same weight on the same highway.
Those who speak of "two fields" in which the two acts of the Legislature may separately "function" seem to ignore the fact that in the case at bar the reason for the so-called classification is made to operate backwards in that the benefit resulting from such a classification operates in favor of the class whose vehicles tend to injure the road and increase the cost of maintenance but operates against the private citizen whose conservative use of the highway tends to prolong its life and reduce the cost of maintenance.
Legislatures may be, in the exuberance of heated criticism, accused of many and varied improvident acts but it is doubtful if they would enact laws that place the mark of their disapproval upon a class of people which tries to preserve public property and reduce the cost of maintenance while affording special advantages to a class *Page 517 whose use of public properties tends to greater destruction and higher cost of maintenance.
The case of Miami Transit Co. v. McLin, ___ Fla. ___,133 South. Rep. 99, has no bearing whatsoever in my judgment upon the case at bar. There is no question of fees or taxes involved here as was involved in the case cited nor the exercise of legislative power in the matter of taxation. Nor, in my opinion, is there any question of legislative history involved so far as the two legislative acts, Chapters 14764, and 15625,supra, relate to the subject. The first merely deals with a legislative regulation through the legislative agency of the Railroad Commission of the business of transporting persons and property in motor vehicles over the public highway for hire. The latter act relates to the registration of all motor vehicles and expressly forbids the use of the public highway outside of municipalities by any motor vehicle carrying a load of sixteen thousand pounds including the weight of the motor vehicle.
It can be of no possible importance nor have any bearing whatsoever upon the question, that the history of the enactment of Chapter 15625, supra, is supposed to show that an increase in taxation was desired only. If the settled rules of statutory construction are to be departed from to the extent of visualizing a situation known to exist or recalling a history of supposed legal and legislative activities as affording a motive for legislation and then finding that as the clear meaning of words used in the particular act do not fit the supposed historical background, the words used so clear in meaning must be ignored and others substituted more in accord with assumed legislative motives, there will, of course, be no substantiality in legislative activities in the hands of a court which studies history and motives not disclosed by the unambiguous and clearly meaning words of the particular statute. *Page 518
The per curiam opinion states for example that the act, Chapter 15625, supra, expressly provided that "such Chapter should not repeal 'any part of Chapter 14764." The exact language of the act is as heretofore quoted in this opinion: "nothing in this Act shall be construed to repeal any part of Senate Bill 411 passed at the regular session of the 1931 Legislature."
The first words of Section 8 of Chapter 15625,supra, are "All laws or parts of laws in conflict with this Act are hereby repealed." Chapters 15625 and 14764 are not in pari materia. If there was any necessity for construction of either act the two would not be required to be construed together because they do not relate to the same or even kindred subjects.
Chapter 15625, supra, evinces a slowly awakening realization by the Legislature of the necessity of protecting the highways from the burden of sustaining heavy traffic by trucks for private use as well as trucks used as common carriers or private contract carriers.
Paragraph 4 of Section 3 of Chapter 15625, supra, is in force and according to the return of the sheriff the petitioner is held under a valid warrant charging an offense under the laws of the State.
The petitioner should be remanded to the custody of the Sheriff.
BUFORD, J., concurs.