dissenting:
I respectfully dissent.
The Department of Revenue is an administrative agency created by statute, endowed with enumerated powers pursuant to the police power and its exercise of those powers should be presumed to be valid and constitutional. Moore v. District Court, 184 Colo. 63, 518 P.2d 948 (1974). In this action filed pursuant to § 24-4-106, C.R.S.1973, plaintiffs presented no evidence that the questioned regulation was beyond the authority of the department of revenue. Indeed, at the administrative hearing which preceded this judicial review, the questioned regulation had been broadened to allow for a greater number of dealer plates than in its original version as a protection, to smaller dealers. Moreover, plaintiffs presented no evidence that the regulation injured them.
On its face the questioned regulation is in no way inconsistent with the statute and bears a reasonable relationship to the statutory objective. The statute is a revenue measure pointed toward collecting taxes but permitting exceptions to the general scheme in the case of dealers. The regulation relates to the latter and prevents abuse of the dealer plate exemption. Contrary to the reasoning in the majority opinion, the regulation does not prohibit issuance of dealer plates; rather it supplies a reasonable formula for regulation of the number of plates so that the tax exemption for dealer plates is not abused.
Dixon v. Zick, 179 Colo. 278, 500 P.2d 130 (1972) and State Board of Barber Examiners v. White, 29 Colo.App. 471, 485 P.2d 928 (1971), relied upon by the plaintiffs are distinguishable. In each of those cases the regulation in question was beyond the scope and objectives of the statutory delegation of authority.
Given the presumption of validity and the failure of plaintiffs to prove injury, together with the fact that on its face the regulation bears a reasonable relationship to the purpose of the statute, the trial court properly stated:
“Now, I do not know and cannot rule at this time whether there are going to be harmful effects on these small dealers or whether this regulation will be arbitrary and capricious as to them or unconstitutional because of [denial of] equal protection because we really don’t have any information before this court on those issues.”
For these reasons I would affirm the judgment of the district court.