Believing that the majority opinion is based on what the court thinks the legislature had in its mind rather than what the legislature said in the law it passed, Judges Thomas, Settle and myself are compelled to dissent. By section 19 of chapter 81 of the Acts of 1924, being now section 2739j-19 of the Kentucky Statutes, it is provided that each and every auto transportation company now or hereafter operating a line or lines of passenger transportation by means of motor vehicles shall pay certain fees. In the classification of such fees, which next follows in the same section, are two classes which we think support our views. They are: "(a) For each motor vehicle carrying passengers for hire on the public highways of this Commonwealth capable of carrying five passengers or less, $2.50 for each and every passenger seat or space; (b) for each motor vehicle operating between fixed termini or over a regular route, capable of carrying six passengers or more, up to eight passengers, $5.00." This section 19 of the act closes thus: "No provisions of this act except section 19, providing for the payment of fees, shall be applicable to any motor vehicle having a carrying capacity of five persons or less." It seems to us that this provision of section 19 means exactly what it says, and that it prohibits the looking to any other section of the act when we are dealing with any motor vehicle having a carrying capacity of five persons or less. That the appellee is operating a motor vehicle carrying passengers for hire on the public highways of this Commonwealth *Page 328 capable of carrying five passengers or less stands admitted. This section makes a clear distinction between motor vehicles which are operated for hire over the public highways of the state, but not between fixed termini, and such motor vehicles which do ply between such termini. Appellee plainly falls within the former classification, and it therefore follows that under the provisions of this section 19 it should pay $2.50 for each and every passenger seat in its autos. The majority opinion, however, says "not so" because it is only auto transportation companies who have to pay this license tax, and when we look for the definition of an auto transportation company in section 1 of the act we find that it expressly excludes a company operating taxicabs. That, literally and without the light thrown on the meaning of the phrase "auto transportation company" by section 1 of the act, appellee is an auto transportation company is plain to us. It is a company engaged in the business of transporting passengers for hire by means of automobiles. Have we the right then to modify this literal meaning by what the legislature said in section 1 of the act? How can we have such right when the legislature prohibited us by the closing provision of section 19 to look to any other section of the act when dealing with the applicable part of that section? What plainer or stronger language could the legislature have used to forbid such action on our part?
Deeming, then, that we are bound by what the legislature said rather than by what we might think it probably meant, we conclude that section 19 of the act is the only section which should govern the decision of this case, and that under the express provisions of such section, appellee is liable for the license tax therein imposed.
By a parity of reasoning, however, we also conclude that appellee is not subject to the indictment and penalties provided for by section 28 of the act. The concluding provision of section 19, above quoted, excludes the application of any other section of the act to any motor vehicle having a carrying capacity of five persons or less. This of course excludes section 28. Although appellee may be proceeded against civilly or otherwise under the general revenue laws of the state for failure to pay this license tax, it cannot be proceeded against under section 28 of the act. We, therefore, believe the lower court was correct in sustaining appellee's demurrer to the indictment herein, and so we concur in the result reached *Page 329 by the majority opinion, but dissent from the grounds on which that opinion is based.
I am authorized to say that Judges Thomas and Settle concur in this dissenting opinion.