Alfred W. Schroath, Frederick W. Schroath and James G. Curran, partners, trading and doing business under the name of Fleet Rental Company, hereinafter referred to as relators, seek a writ of mandamus to compel Joseph P. Condry, Commissioner of Motor Vehicles of West Virginia, hereinafter designated as Commissioner, to issue a Class A automobile registration and license plate for a certain automobile owned by the relators and leased to The Union National Bank of Clarksburg. The Commissioner refused to issue a Class A automobile registration card and license plate on the ground that the relators are not entitled to such Class A registration card and license plate, but are entitled to a Class U registration card and license plate.
The issue in this case arises upon the following undisputed facts: Relators are residents of Harrison County, West Virginia, and are engaged in the business of leasing or renting new passenger automobiles and trucks for terms of one year or longer to individuals and business organizations for use of such motor vehicles in the business of the lessees. Secondhand motor vehicles are not rented. Rentals of these motor vehicles are payable monthly, in fixed amounts, regardless of the number of miles the vehicles are driven.
The relators do not offer to lease to the public generally
The relators allege that they are engaged in a competitive business, that they have no franchise to rent vehicles to any person, and that the business is private and is similar to the business of selling motor vehicles. The title to the motor vehicle owned by the relators is in their name. Prior to this time, Class A or B registration card and license plate for each rented vehicle have been issued in the name of the Fleet Rental Company.
The vehicles are equipped with accessories and lettering, according to the specifications of the lessee and when delivered to the lessee, the vehicle may be used by such lessee as its own property, except as hereinafter stated. While in operation, the complete control is in the lessee during the term of the lease. It may be driven at such times and to such places and for such distance as the lessee desires.
The relators have no control over the vehicle and the use thereof, except the prohibition against using it for an unlawful purpose; its use in transporting property or persons for hire. The right to repossess the vehicle, however, for violation of the rental agreement, is reserved. In the operation of the vehicle, the lessee is entitled to possession of the vehicle during the time of the agreement, provided the lessee complies with the provisions of the agreement.
According to the information of relators, each rented vehicle is driven by a qualified driver of the lessee. None of such drivers is an employee of, or has any relationship with the relators. The driver receives his instruction as
In some of the leases, the relators do not agree to maintain and service the rented vehicles. Other leases may provide that the relators furnish gasoline, oil, garage facilities, washing, adjustments and repairs, or any one or more of such services provided for in the lease of the vehicle.
One of the relators negotiated a lease agreement with The Union National Bank of Clarksburg, West Virginia, hereinafter designated as the Bank. By that agreement, the relators agreed to furnish one motor vehicle to the Bank for its use in accordance with the terms of a written lease. The lease which is set forth in its entirety in the petition, provides in substance as follows: a Chevrolet automobile, described by motor number and serial number, was leased for two years, from February 8, 1954, until February 8, 1956, at a monthly rental of $124.20 per month, payable monthly.
The Bank agreed at the expiration of the lease to deliver the motor vehicle to the relator at the Bank’s expense, in as good condition as said motor vehicle was in when received by the Bank, ordinary wear and tear excepted. In this lease, the Bank agreed to keep the motor vehicle in safe working condition and pay all taxes, fines, fees, operating costs and other expenses in connection with the leased vehicle; that the lessor may inspect it and thereafter the Bank should make all repairs found necessary on such inspection.
The relators agreed to provide a certificate of title and registration card and license plates in the name of the relators at the Bank’s expense.
The Bank agreed to save the lessor harmless against all loss imposed by law resulting from the use and operation of the motor vehicle and “arising out of any cause whatever while said motor vehicle is in the possession and control of Lessee, its agents, servants, employees or
The Bank also agreed to provide, maintain and pay for insurance covering the motor vehicle in certain amounts unnecessary to specify. The Bank has the right to use the leased vehicle for any lawful purpose except the Bank agreed that it would “not use nor permit said motor vehicle to be used for transportation for hire of property or passengers.”
Other provisions of the lease set forth that the relators did not contemplate sale of the vehicle, conditional or otherwise; that the lease agreement may be assigned by the relators to any person or persons, but that the Bank should not assign the agreement or voluntarily relinquish possession and control of the vehicle without written consent of the relators or their assignees. Another stipulation in the lease provided for repossession of the leased vehicle and cancellation of the agreement in the event of a violation of the agreement or failure to pay rentals.
Relators obtained a certificate of title as the owner of the motor vehicle leased to the Bank, in accordance with the applicable statutory provisions, and thereupon applied in writing to the Department of Motor Vehicles of West Virginia for a Class A registration card and license plate; tendered the correct amount of cash to pay the fees for Class A registration, exhibited their certificate of title and made full and correct answers to the questions necessary to obtain a Class A license card and plate.
The Commissioner denied the request for Class A registration card and plate for the leased automobile. He based his refusal on the provisions of the statute that a Class A registration card and license plate could not be issued under the existing statute, but that the relators should obtain a Class U registration card and license plate after they had obtained a certificate or permit as required by Chapter 108, Article 6, Section 6, Acts of the Legislature, 1949, Regular Session. (Michie’s Code, 1949, 24A-6-6).
The relators pray that a writ of mandamus be awarded requiring the Commissioner to issue to them a Class A registration card and license plate for the motor vehicle rented to the Bank, upon a proper application and payment of fees for such registration by the relators.
The defendant demurred to the petition upon the ground that relators are not entitled to a Class A registration and license plate for the reason that the petition shows upon its face that the vehicle described in the relators petition was a passenger motor vehicle rented for compensation, without a driver, and relator is therefore not entitled to a Class A registration card and license plate.
This proceeding was submitted upon the questions raised by the demurrer, briefs and oral arguments.
The regulation of motor vehicles relative to licensing and operation are based on statutory provisions. Chapter 126, Article 10, Section 1, Acts of the Legislature, 1953, Regular Session, (17A-10-1, 1953 Cumulative Supplement to Michie’s Code, 1949), so far as pertinent reads as follows: “Vehicles subject to registration under the pro
Chapter 129, Article 10, Section 3, Acts of the Legislature, 1951, Regular Session, (17AM0-3, 1953 Cumulative Supplement to Michie’s Code of 1949), provides that the fee for motor vehicle registration in Class U shall be $50.00. Section 5, Article 10 id. reads as follows: “The commissioner shall not register any Class * * * U vehicle unless the assessment for such vehicle provided for in section six, article six, chapter twenty-four-a of this code shall have been paid and notice of such payment shall have been received by the commissioner in the manner provided in said section. The commissioner upon registering a vehicle in any of the above classes shall certify to the Public Service Commission a written statement * * covering each vehicle registered which shall show the (1) number of the registration, (2) the date of registration, (3) the model of the registered vehicle, (4) its gross weight or seating capacity, (5) body type, motor or serial number and name of manufacturer, (6) name of the registrant.
Section six, article six, chapter twenty-four-a [§2577 (30) ], referred to in the immediately preceding statute, so far as pertinent, reads as follows:
“In addition to the license fees, registration fees, or any other taxes required by law to be collected from motor carriers subject to this chapter, each such motor carrier shall be subject to, and shall pay to the public service commission, a special annual assessment for the purpose of paying the salaries, compensation, costs and expenses of administering and enforcing this chapter. All proceeds or funds derived from such assessment shall be paid into the state treasury and credited to a special fund designated public service commission motor carrier fund, to be appropriated as provided by law for the purposes herein stated. * * * ThePage 834special assessment against each motor carrier shall be apportioned upon the number and capacity of motor vehicles used by said carrier, computed as hereinafter provided, (a) For each identification card and plate $1.00 * *
A graduated scale of assessments from nine dollars to fifty-four dollars, based on the tonnage capacity of each vehicle up to ten tons, plus $4.50 per ton for each ton or capacity in excess of ten tons is set forth under sub-section (b) of the statute.
Sub-section (c) of the above statute provides for an assessment upon the tonnage capacity on a semitrailer. Sub-section (d) of the statute provides for the assessments of each motor vehicle or carrier in accordance with the seating capacity ranging from the seating capacity for ten passengers or less at $13.50 to a seating capacity of over forty passengers at $54.00. Sub-section (e) of the statute provides that the assessments of each motor carrier shall be paid on or before the first day of July of each year. Additional assessments are provided for. Sub-section (f) of the statute provides as follows: “Upon payment by any motor carrier of the assessment provided for, the public service commission shall advise the state road commission [the Department of Motor Vehicles] by notice in writing that such assessment has been paid, whereupon the state road commission [Department of Motor Vehicles] may issue motor vehicle license for the vehicles described in said notice. * * Sub-section (g) requires certain administrative action by the public service commission, not pertinent to this inquiry. Chapter 108, Article 6, Section 6, Acts of the Legislature, 1949, Regular Session. (Michie’s Code, 1949, 24A-6-6).
The Legislature of this State has defined common and contract carriers in the following language: “* * * (e) the term ‘common carrier by motor vehicle’ means any person who undertakes, whether directly or by lease or any other arrangement, to transport passengers or property, or any class or classes of property, for the general public over the highways of this State by motor vehicles for hire,
A common carrier is required to obtain a certificate of convenience and necessity from the public service commission. Chapter 126, Article 2, Section 5, Acts of the Legislature, 1945, Regular Session. (Michie’s Code, 1949, 24A-2-5.)
A contract carrier must likewise obtain a permit under the provisions of Chapter 126 id., Article 3, Section 3. (Michie’s Code, 1949, 24A-3-1 et seq.)
A common carrier by. motor vehicle is declared by statute to be effected with a public interest and subject to regulations similar to regulations of public utilities. Chapter 50, Article 2, Section 1, Acts of the Legislature, 1937, Regular Session, (Michie’s Code, 1949, 24A-2-1.)
A contract carrier is likewise declared to be effected with a public interest and is subject to regulation. Chapter 50 id., Article 3, Section 1, et seq. (Michie’s Code, 1949, 24A-3-1 et seq.)
The foregoing statutes quoted and adverted to concern the same subject matter and must be read and considered in pari materia. State v. Hoult, 113 W. Va. 587, 169 S. E. 241; State v. Reed, 107 W. Va. 563, 149 S. E. 669; Hays v.
Reading, considering and giving full effect to the foregoing statutes, the ultimate effect is to place the holder of a U license in the category of a common or contract carrier, though such holder is not in fact, a common or contract carrier, and under the lease cannot engage in the transportation of persons or property for hire.
If we follow literally the various statutes above noted, the conclusion is inescapable that so far as administrative action is concerned, a person who rents or leases a motor vehicle without a driver, regardless of its use, must be placed in the category of either a common or contract carrier, though no carriage of property or persons for the general public is contemplated, and is in fact, forbidden by the lease agreement. Likewise, no carriage of persons or property for hire under a special contract is contemplated, and is likewise forbidden by the lease agreement.
The question presented here is one of first impression in this jurisdiction, although it has frequently been the subject of judicial inquiry in other states. The difference in statutory provisions of other states from similar statutes in this state may be a ground for divergence of opinion. In practically all the other cases, the general trend of judicial expression is that a carrier devoted to private use cannot be made a common or contract carrier by a legislative fiat. In some instances, the act attempting to make such vehicles common or contract carriers was struck down on the ground that the title was insufficient. See People v. Hertz Driveurself Stations (Mich.) 61 N. W. 2d 113.
In Lloyd A. Fry Roofing Co. v. Michigan Public Serv. Com’n. (Mich.) 61 N. W. 2d 783, the plaintiff sought to restrain the public service commission from interfering with their right to haul merchandise in leased motor vehicle equipment. The commissioner had classified the
The first headnote in State v. Dabney (Ark.) 5 S. W. 2d 304, reads as follows: “One renting or hiring to individuals who applied therefor automobiles to be operated by hirer at his own risk and discretion was neither a private nor public carrier of passengers, and was not engaged in business of using motor vehicles for transportation of passengers for hire within meaning of [designated statute], requiring payment of tax in addition to registration fees.” “Leasing automobile to be used only by lessee does not make lessor a public or private common carrier of passengers for hire, so as to require permit under Rem. Comp. Stat. §§6382, 6384, 6385.” State v. Bee Hive Auto Service Co. Inc., et al. (Wash.) 242 P. 384. Application of a similar principle was made in the case of Cobb v. Harrington (Texas) 190 S. W. 2d 709. For further elaboration of this principle see Dymond Cab Co. v. Branson (Okla.) 131 P. 2d 1007; Lawrence v. Goddard (Fla.) 168 So. 13.
A person who buys and sells property or rents trucks to others is not a highway carrier. People v. Tedesco (Cal. App.) 64 P. 2d 966.
A truck leased to other persons, the sole control being exercised by the lessee, is not a common carrier. People v. Heckman Trucking Co. (N. Y.) 14 N. E. 2d 801.
The opinion in the case of Hertz Drivurself Stations v. Siggins, (Pa.) 58 A. 2d 464, contains an extended and instructive discussion of the questions presented in this proceeding. The Siggins case is in accord with the other cases cited. It suffices to say that all of the cases we have examined show a uniform trend of judicial decision, though considering statutes differently worded from those considered in this case.
In the case of Hodge Drive-it-Yourself Co. v. City of Cincinnati et al., 284 U. S. 335, 52 S. Ct. 144, 70 L. Ed 323, the court had before it -a municipal ordinance requiring persons engaged in the business of letting out automobiles to be driven by and used by those who hired them, to pay license fees on the motor vehicle and deposit an insurance policy or bond for the protection of persons and property against negligent operation of the vehicle. But that ordinance was sustained on the ground that the state had power to regulate public highways and that the ordinance was not burdensome, arbitrary or capricious in its classification. Obviously a different question was presented in the Hodge case from that presented in the instant case.
It is said in the case of Michigan Public Utilities Commission v. Duke, 266 U. S. 570, 45 S. Ct. 191, 67 L.Ed. 445, «* * * it is beyond the power of the state by legislative fiat to convert property used exclusively in the business of a private carrier into a public utility, or to make the owner a public carrier, for that would be taking private property for public use without just compensation, which no state c2an do consistently with the due process of law clause of the Fourteenth Amendment. Producers Transportation Co. v. Railroad Commission, 251 U. S. 228, 230, 40 S. Ct. 131, 64 L.Ed. 239; Wolf Co. v. Industrial Commission, 262 U. S. 522, 535, 42 S. Ct. 630, 67 L.Ed. 1103, 27 A.L.R. 1280. On the facts above referred to, it is clear that, if enforced against him, the act would deprive plaintiff of his property in violation of that clause of the Constitution.”
In passing, it may be noted that there is a similarity of the Michigan statutes and the pertinent statutes here considered. As hereinabove stated, we think this is an
It was held in the case of Frost v. Railroad Commission of State of California, 271 U. S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, that a state has no right to compel the surrender of a constitutional right as a condition for granting a privilege. The privilege of using state highways may not be withheld because of an unconstitutional condition imposed by the state. It is likewise held in the Frost case that a “* * * private carrier cannot be converted against his will into a common carrier by mere legislative command.”
It cannot be gainsaid that a state under the police power has the right to regulate the use of its highways when such regulation is founded upon a rational or reasonable basis.
It is not reasonable in this instance where the owner of an automobile used for private carriage of passengers is granted an A license, but the owner of a motor vehicle who leases his vehicle for a long term for private use is required to submit to regulation as a common or contract carrier. We do not think that such discrimination can be justified on any reasonable or sensible basis, and those who would maintain it, disregard the basis necessary for the regulation of motor carriers.
We reiterate that consideration of a single statute adverted to herein does not show the complete situation with respect to the relator’s business, but reading them together and applying and enforcing them, results in making the relators either common or contract carriers, subject to regulation by the Public Service Commission of this state.
We do not think the statutes in their broad scope, and
In consideration of the foregoing, we are of opinion that the relators are entitled to the writ of mandamus prayed for herein, and that the Commissioner be, and is hereby required, to issue the relators a Class A license for the motor vehicle in question, to be used by the lessors and lessee solely in the private business of the Bank.
Writ awarded.