The opinion
YANKWICH, District Judge
(dissenting).
I dissent.
The California Caravan Act of 1937 (Cal.Stats.1937, Ch. 788, p. 2253) having been passed to supplant the Caravan Act of 1935, St. 1935, p. 1453, voided by the courts (Morf v. Ingels, 1936, 14 F.Supp. 922 ; Ingels v. Morf, 1937, 300 U.S. 290 , 57 S.Ct. 439 , 81 L.Ed. 653 ), the challenge to it must be considered in the light of the postulate that the legislative body sought by the new Act to overcome the infirmities of the old Act. United States v. Bekins, 1938, 58 S.Ct. 811 , 82 L.Ed.-. Both Acts aim to control highway transportation within the state. The power of a state so to do is beyond challenge. Its exercise would be upheld even though it impeded or burdened interstate commerce. The Supreme Court has said so repeatedly. As recently as February 14, 1938 (South Carolina State Highway Department v. Barnwell Bros., Inc., 1938, 303 U.S. 177, 189 , 58 S.Ct. 510, 516 , 82 L.Ed. -) it said: “This Court has often sustained the exercise of that power [state control over highways], although it has burdened or impeded interstate commerce. It has upheld weight limitations lower than those presently imposed, applied alike to motor traffic moving interstate and intrastate. Morris v. Duby [ 274 U.S. 135 , 47 S.Ct. 548 , 71 L.Ed. 966 ]; Sproles v. Binford [ 286 U.S. 374 , 52 S.Ct. 581 , 76 L.Ed. 1167 ], Restriction favoring passenger traffic over the carriage of interstate merchandise by truck has been similarly sustained, Sproles v. Binford [ 286 U.S. 374 , 52 S.Ct. 581 , 76 L.Ed. 1167 ]; Bradley v. Public Utilities Commission of Ohio, 289 U.S. 92 , 53 S.Ct. 577, 77 L.Ed. 1053 , 85 A.L.R. 1131 , as has the exaction of a reasonable fee for the use of the highways. Hendrick v. Maryland, 235 U.S. 610 , 35 S.Ct. 140 , 59 L.Ed. 385 ; Kane v. New Jersey, 242 U.S. 160 , 37 S.Ct. 30 , 61 L.Ed. 222 ; Interstate Busses Corp. v. Blodgett, 276 U.S. 245 , 48 S.Ct. 230 , 72 L.Ed. 551 ; Morf v. Bingaman [ 298 U.S. 407 , 56 S.Ct. 756 , 80 L.Ed. *951 1245 ]; cf. Ingels v. Morf, 300 U.S. 290 , 57 S.Ct. 439 , 81 L.Ed. 653 .” What is, however, forbidden, in the exercise of this power, is discrimination against interstate commerce, under the guise of regulation. Interstate Transit, Inc., v. Lindsey, 1931, 283 U.S. 183 , 51 S.Ct. 380 , 75 L.Ed. 953 .
One of the indirect aims of the Act under attack is to control certain automobile traffic which originates outside of the State. I am of the view that this result is achieved without discrimination against interstate commerce.
Instead of imposing (as did the Act of 1935) a fee on caravaning originating without the state, the new Act requires the payment of two license fees for the caravaning •of automobiles between two zones within the state, whether the movement originates within or without the state. Each fee is $7.50 in amount. One is imposed “as compensation for the privilege of using the public highways.” Section 4 of the Act. The money derived from this fee is payable into the State Highway Fund [Section 7 of the Act] which is reserved for moneys used for the acquisition of rights-of-way and the construction, maintenance and improvements of state highways. Cal.Stats.1935, Ch. 29, p. 265, secs. 182, 183. The other fee is “to reimburse the State for expense incurred in administering police regulations pertaining to the operation of vehicles moved pursuant to such permits and to public safety upon the highways a's affected by such operation.” Section 4 of the Act. Similar declarations of purpose are contained in Section 7 of the Act.
The permit, issued upon the payment of the fees, is valid for six months and is in lieu of any other registration or license fee or charge during this period, in which the caravaned car may be driven over the highways of the state for the purpose of sale or exchange. Section 6 of the Act.,
The form which regulation of the traffic on state highways may take without impinging upon the commerce clause of the Constitution of the United States has been stated, generally, by Mr. Justice Brandeis in Interstate Transit, Inc., v. Lindsey, 1931, 283 U.S. 183, 185 , 51 S.Ct. 380, 381 , 75 L.Ed. 953 :
“While a state may not lay a tax on the privilege of engaging in interstate commerce, Sprout v. South Bend, 277 U.S. 163 , 48 S.Ct. 502 , 72 L.Ed. 833 , 62 A.L.R. 45 , it may impose even upon motor vehicles engaged exclusively in interstate commerce a charge, as compensation for the use of the public highways, which is a fair contribution to the cost of constructing and maintaining them and of regulating the traffic on them. Kane v. New Jersey, 242 U.S. 160, 168, 169 , 37 S.Ct. 30 , 61 L.Ed. 222 ; Clark v. Poor, 274 U.S. 554 , 47 S.Ct. 702 , 71 L.Ed. 1199 ; Sprout v. South Bend, supra, pages 169, 170, of 277 U.S., 48 S.Ct. 502. As such a charge is a direct burden on interstate commerce, the tax cannot be sustained unless it appears affirmatively, in some way, that it is levied only as compensation for use of the highways or to defray the expense of regulating motor traffic. This may be indicated by the nature of the imposition, such as a mileage tax directly proportioned to the use, Interstate Busses Corp. v. Blodgett, 276 U.S. 245 , 48 S.Ct. 230 , 72 L.Ed. 551 , or by the express allocation of the proceeds of the tax to highway purposes, as in Clark v. Poor, supra, or otherwise. Where it is shown that the tax is so imposed, it will be sustained unless the taxpayer shows that it bears no reasonable relation to the privilege of using the highways or is dis criminatory. Hendrick v. Maryland, 235 U.S. 610, 612 , 35 S.Ct. 140 , 59 L.Ed. 385 ; Interstate Busses Corp. v. Blodgett, 276 U.S. 245, 252 , 48 S.Ct. 230 , 72 L.Ed. 551 ; Compare Interstate Busses Corp. v. Holyoke Street Ry. Co., 273 U.S. 45, 51 , 47 S.Ct. 298 , 71 L.Ed. 530 .” (Italics added)
The following cases indicate the variety of forms of regulations so sustained: Hendrick v. Maryland, 1915, 235 U.S. 610 , 35 S.Ct. 140 , 59 L.Ed. 385 (graduated license fee and requirement of non-resident to appoint agent); Packard v. Banton, 1924, 264 U.S. 140 , 44 S.Ct. 257 , 68 L.Ed. 596 (statute limited to cities of first class, requiring persons engaged in carrying passengers for hire in motor vehicles upon public streets to file security or insurance for payment of judgments for death or injury); Morris v. Duby, 1927, 274 U.S. 135 , 47 S.Ct. 548 , 71 L.Ed. 966 (state order limiting maximum weight of motor trucks and loads on highways); Clark v. Poor, 1927, 274 U.S. 554 , 47 S.Ct. 702 , 71 L.Ed. 1199 (statute requiring extra tax on motor carriers); Interstate Busses Corp. v. Blodgett, 1928, 276 U.S. 245 , 48 S.Ct. 230 , 72 L.Ed. 551 (a state tax of one cent for each mile of highway traversed by a motor bus used in interstate commerce, in addition to other taxes imposed on owner in the absence of “a showing that in actual practice the tax of which it complains falls with disproportionate economic weight on *952 it”); Sproles v. Binford, 1932, 286 U.S. 374 , 52 S.Ct. 581 , 76 L.Ed, 1167 (á statute [Vernon’s Ann.P.C.Tex. art. 827a] limiting the net load of trucks); Stephenson v. Binford, 1932, 287 U.S. 251 , 53 S.Ct. 181 , 77 L.Ed. 288 , 87 A.L.R. 721 (statute [Vernon’s Ann. Civ.St.Tex. art. 911b] regulating carriers on highways and their rates) ; Continental Baking Co. v. Woodring, 1932, 286 U.S. 352 , 52 S.Ct. 595 , 76 L.Ed. 1155 , 81 A.L.R. 1402 (license fee and tax on carrier of goods by motor); Morf v. Bingaman, 1936, 298 U.S. 407 , 56 S.Ct. 756 , 80 L.Ed. 1245 (a flat tax on caravaning automobiles); South Carolina State Highway Dept. v. Barnwell Bros, Inc., 1938, 303 U.S. 177 , 58 S.Ct. 510 , 82 L.Ed.-(statute prohibiting the use on the highway of trucks exceeding certain length and weight); George B. Wallace, Inc., v. Pfost, 1937, 57 Idaho 279 , 65 P.2d 725 , and annotations thereto in 110 A.L.R. 622 (fee on caravaning automobiles). See also Clyde Mallory Lines v. Alabama ex rel., 1935, 296 U.S. 261 , 56 S.Ct. 194 , 80 L.Ed. 215 , in which a uniform harbor fee for vessels of certain tonnage was sustained, in the face of the constitutional inhibition, against laying of duties on tonnage by the states. Constitution of United States, Article 1, Sec. 10, cl. 3, U.S.C.A.Const. art. 1, § 10, cl. 3.
The final decision on the prior Act (Ingels v. Morf, 1937, 300 U.S. 290 , 57 S.Ct. 439 , 81 L.Ed. 653 ) did not turn upon classification. The Act was denied judicial sanction because the fee exacted was found to be excessive. The opinion also declares that the burden of proving that the fee is excessive rests with him who attacks it. If he does not show that it exceeds a reasonable charge for the privilege of using the highway or for defraying the cost of regulating the traffic involved, his attack must fail. See, Morf v. Bingaman, 1936, 298 U.S. 407 , 56 S.Ct. 756 , 80 L.Ed. 1245 .
In passing upon an attack of this character, courts disregard the fact that all the money collected as a charge may not actually be used, or be necessary for that purpose. Gundling v. Chicago, 1900, 177 U.S. 183 , 20 S.Ct. 633 , 44 L.Ed. 725 ; Clark v. Poor, 1927, 274 U.S. 554 , 47 S.Ct. 702 , 71 L.Ed. 1199 ; Interstate Transit, Inc., v. Lindsey, 1931, 283 U.S. 183 , 51 S.Ct. 380 , 75 L.Ed. 953 . Nor is it material that the litigant attacking the bill may not actually ask or receive the service for which a fee. is charged. Clyde Mallory Lines v. Alabama ex rel., 1935, 296 U.S. 261 , 56 S.Ct. 194 , 80 L.Ed. 215 .
These principles are expressions of sound judicial polity. Courts, in exercising the power to nullify an exaction as an unreasonable burden, upon interstate commerce, should not be placed in a position of requiring a sovereign state to prove, in dollars and cents, that the exaction it makes is the exact equivalent of the damage which the particular trip may occasion to the state highway. Kane v. New Jersey, 1916, 242 U.S. 160, 167, 168 , 37 S.Ct. 30 , 61 L.Ed. 222 .
If the facts in the record are tested by these rules, they fail to show that the exactions of the 1937 Caravan Act are onerous or invalid.
There' is no showing that the exaction of a fee of $7.50 for the use of the state highway is excessive. The cases discussed have approved a flat charge, comparing it with the old flat toll charge for the use of bridges.
Certain it is that it is not up to the State of California to show that every one of these automobiles transported for business purposes does damage in that amount to the highway.
Bear in mind that the imposition, whether in the form of a tax or of a fee, is “not on the use of the highways but on the privilege of using them.” Morf v. Bingaman, 1936, 298 U.S. 407, 412 , 56 S.Ct. 756, 758 , 80 L.Ed. 1245 . When this is the case, “it is immaterial whether the state places the fees collected in the pocket out of which it pays highway maintenance charges or in some other.” Morf v. Bingaman, 1936, 298 U.S. 407, 412 , 56 S.Ct. 756, 758 , 80 L.Ed. 1245 . And the Supreme Court has declined to invalidate an exaction, even when it was actually shown that the fund created, by it exceeded what was needed for the particular purpose. Kane v. New Jersey, 1916, 242 U.S. 160 , 37 S.Ct. 30 , 61 L.Ed. 222 ; and see, Territory of New Mexico ex rel. E. J. McLean & Co. v. Denver & Rio Grande R. R. Co., 1906, 203 U.S. 38, 55 , 27 S.Ct. 1 , 53 L.Ed. 78 .
Nor does the evidence in the record warrant the conclusion that the fee of $7.50 for added police protection and the maintenance of safety caused by this particular form of traffic is excessive or unreasonable. The problem which caravaning presents, appears from the testimony of E. Raymond Cato, Superintendent of the California *953 Highway Patrol, whose duties are to administer the affairs of the patrol, lay plans and direct the enforcement of the motor vehicle laws of the state and other laws regulating the operation of motor vehicles upon the highways of the state. The problem was called to his attention in 1931 and 1932. Committees of citizens called on him and asked that caravaning stop. They complained that the caravans were a hazard on the highways. Wrecks caused by them were reported. There were numerous complaints from motorists being crowded off the highways. Because there was no law to stop the traffic, an investigation vtas made to determine what the problem was, in order that legislation might be recommended to meet it. This investigation and Cato’s subsequent observations .disclosed that there were many automobiles being driven and towed into the state for the purpose of sale. These fleets and caravans ranged from three and four to sixty or seventy cars. Some of the persons caravaning cars brought them into the state for resale by themselves either at wholesale or retail. Others engaged exclusively in caravaning automobiles for others. The observed caravans ran train-like, i. e., they would remain close together in a group or fleet. Often, by remaining close to each other, the cars in such fleets would not permit traffic going in the same direction to pass a single car in the fleet and thus interrupt the continuity of the fleet. This would cause an additional traffic hazard when vehicles attempted to pass the entire fleet resulting, in many instances, in head-on collisions, side-swiping and upsets. On the open highways, the fleet would not usually drive at the maximum speed allowed-—forty-five miles per hour— as resident drivers do, but would drive at a slightly slower speed.
In general, the larger the caravan, the slower the speed would be at which it was driven. This would make it necessary for more cars to pass such fleets than would have occasion to pass the ordinary traffic. Many of the cars in the fleets were in units of two grouped together by tow-bars or other means, each unit being in charge of a single driver who operated the forward car, thus controlling the movement of both cars by use of the mechanism aitd brakes of the towing car. The drivers of the cars brought into the state for the purpose of sale were not regularly employed in such occupation. Many of them were under eighteen years of age. They were usually engaged casually at the point where the transportation began and served without pay or for a small remuneration, bearing their own expenses in order to secure transportation to the point of destination. They had little or no interest in the vehicles which they were driving or in their employment other than as a means of transportation. They displayed less regard than other drivers for traffic regulations and for the safety and convenience of others using the highway. By the time they reached the state, they were usually in a nearly exhausted physical condition and in a hurry to reach their destination in California. In many instances, when a driver was involved in an accident, or in an unusual delay, or had reached a point where he was satisfied to leave the caravan, he abandoned his vehicle on, or dangerously near, the highway unattended, to the hazard and inconvenience of the users of the highways.
Most of the cars caravaned into the state for sale were and are driven over United States Highways 80, 99, 60, 66, 91, 50, 395, 40, and also on California Highway Route 168. Most of these highways are, for the greater part of their length, two-lane highways traversing routes which have numerous curves both horizontal and vertical and grades in the road and which pass through numerous small towns which they serve as main streets and as their only through streets.
The number of caravaned cars transported for sale increased greatly from 1931 to 1936. Approximately 14,000 cars were caravaned during each of the years 1935 and 1936. In 1937, following the adoption of the California Caravan Act, the volume of the traffic decreased materially. The conditions, both as to the operation and hazards and the personnel, were before the California legislatures of 1935 and 1937, which sought to deal with the problem, and have continued unchanged to the present time. They warrant the special treatment of the problem through this type of legislation. They are akin to the conditions which the court found in Morf v. Bingaman, 1936, 298 U.S. 407, 411 , 56 S.Ct. 756, 758 , 80 L.Ed. 1245 , when it said: “There is ample support for a legislative determination that the peculiar character of this traffic involves a special type of use of the highways, with enhanced wear and tear on the roads and augmented hazards to other traffic, which *954 imposes on the state a heavier financial burden for highway maintenance and policing than do other types of motor car traffic. We cannot say that these circumstances do not afford an adequate basis for special licensing and taxing provisions, whose only effect, even when applied to interstate traffic, is to enable the state to police it, and to impose upon it a reasonable charge, to defray the burden of this state expense, arid for the privilege of using the state highways.”
Prior to the development of'the caravan method of transporting cars for sale, there was practically no fleet movement of cars upon the highways of California. There still is practically no fleet movement of cars on highways other than in connection with the transportation of cars for sale.
There is definite evidence to show that the safest way to handle the traffic is to assign traffic officers for the purpose of accompanying and convoying each fleet to its destination. The reason why it is not done generally now is the absence of funds. A system of general convoying would require a total of thirty-six officers to handle the caravaning on the main highways leading to the metropolitan areas of California. This not being possible at the present time, the department has attempted to solve the problem by 'providing additional highway patrolmen upon the highways over which such operations are usually or are likely to be carried on.
These statements as to the actual needs are confirmed by others, and especially by the testimony of Earl W. Personius, Captain of the Highway Patrol in charge of the enforcement of the caravan law in Zone No. 2.
Thirty men have actually been placed upon the various highways, who are needed to handle the traffic situation caused by caravaning and to enforce the Act. Three men have been assigned to investigate registrations suspected of caravaning into the state of California for the purpose of sale and on which the caravan license was not paid. Additional men performing administrative functions at the border patrol station have had to be supplied. Additional clerical assistance has also been required at the Sacramento office of the Division of Registration of the Department of Motor Vehicles made necessary by the additional administrative functions. To this must be added increased supplies and transportation for the men.
On the basis of an average of 14,000 caravaned motor vehicles per year, the income of the state from the tax collected to reimburse it for this policing would amount to $104,000 a year. Without making a detailed coriiputation, I am satisfied that the cost to the state, without taking into consideration expanding future needs, approximates that amount.
It is true that the computations are not exact. By their very nature, they cannot be. Unless we resort to one of those highly complicated cost accounting systems in vogue in large industrial plants, it is difficult, if not impossible, to estimate definitely the time which each officer actually devotes to the problems caused by caravaning. This is especially true when the attack is made, as here, shortly after a statute goes into effect. When this is the case, it is "impossible then to determine whether the fees would prove to be in excess of the administrative requirement, and in this situation it is sufficient if it is shown that the charges are not unreasonable on their face. As was said in Patapsco Guano Co. v. Board of Agriculture, 171 U.S. 345, 354 , 18 S.Ct. 862 , 43 L.Ed. 191 , 'If the receipts are found to average largely more than enough to pay the expenses, the presumption would be that the legislature would moderate the charge.’ ” Bourjois, Inc., v. Chapman, 1937, 301 U.S. 183, 187 , 57 S.Ct. 691, 694 , 81 L.Ed. 1027 . (Italics added.)
When an Act is challenged on this ground, all that need be shown is that there was warrant in fact, for the imposition of the particular exaction. In determining this, we must, in the end, rely, as, no doubt, the Legislature did, upon the opinion of those charged with the enforcement of the motor vehicle laws of the state as to what additional personnel was necessary to meet the problem and as to the time which others, now otherwise employed, must devote to the duties flowing from the enforcement of this Act. A comparison of the number of automobiles in this traffic with the whole number on the state’s highways leads nowhere. The problem created is special and unrelated to mere numbers. Nor can we, in dealing with a traffic movement of this character, set it apart and try to trace directly ever/ one of its effects. We .must consider the gestalt, or the configuration, which is formed by the entire traffic problem which this particular traffic movement helps complicate, and we must assume that the leg *955 islature did so in determining upon the particular legislation. The facts creating the problem were placed before the legislature, before the Act was passed. The facts relating to the expenditures traceable to the enforcement of the Act since its enactment are before us. The legislature, in setting the fee, could but approximate the cost from the nature of the problem as it then existed. The evidence in the record warrants the conclusion that it approximated correctly, and that the fee of $7.50 is not excessive, but is a reasonable compensation to reimburse the state for the additional expenditure it has incurred in attempting to handle the administrative and police problems which this form of traffic has created.
The burden of proving the contrary is upon the plaintiff. See: Hendrick v. Maryland, 1915, 235 U.S. 610, 624 , 35 S.Ct. 140 , 59 L.Ed. 385 ; Interstate Busses Corp. v. Blodgett, 1928, 276 U.S. 245, 251 , 48 S.Ct. 230, 231 , 72 L.Ed. 551 ; Ingels v. Morf, supra, at page 294, 57 S.Ct. at page 441. If —because of the generality of certain statements by enforcing officers, caused by the absence of a definite method of measuring the allocation of every item of money which may be derived from this source—we strike down the statute, we would change the burden of proving excessiveness, now lying on him who attacks a statute into the burden of proving the contrary and shift it to the state. 1
In approaching legislation of this character, we should bear in mind that “The judicial function, under the commerce clause, Const. art. 1, § 8, cl. 3, as well as the Fourteenth Amendment, stops with the inquiry whether the state Legislature in adopting regulations such as the present has acted within its province, and whether the means of regulation chosen are reasonably adapted to the end sought.” South Carolina State Highway Dept. v. Baynwell Bros., Inc., 1938, 303 U.S. 177, 190 , 58 S.Ct. 510, 516 , 82 L.Ed.-.
Little need be said on the alleged discrimination between intra-zone and inter- *956 zone caravaning and between iñter-zone caravaning and non-resident automobilists who may enter the state without the payment of a caravaning license.
It is no one’s privilege to use state highways for private gain. They are, as the Supreme Court said in Stephenson v. Binford, pages 251, 264, 53 S.Ct. page 184: “public property; that their primary and preferred use is for private purposes; and that their use for purposes of gain is special and extraordinary, which, generally at least, the legislature may prohibit or condition as it sees fit.”
The non-resident automobilists, if they come- to California, do so for business or pleasure, or as prospective residents. Tourism is a great California industry. The benefits which the state derives from nonresident automobilists coming to the state, would warrant their being placed in a class by themselves and having extended to them the privilege of the use of the state’s highways upon conditions different, from those extended to persons driving over the highways of the state caravaned automobiles for sale. The caravaning of automobiles within a particular zone is done chiefly by large automobile manufacturers and is performed by regular employees who are residents of the state. The fact that caravaned automobiles are manned by persons, who, in most instances, perform the act of caravaning for the specific occasion of a specific sale—that, in many instances, the drivers are not residents of the state—furnishes a sufficient foundation for a distinct classification. There is more ground for a distinction based upon the casual character of the employment and of the type of persons employed, than there is in distinguishing, for licensing purposes, itinerant merchants from regular merchants, a classification which has been upheld uniformrly. See, Emert v. Missouri, 1895, 156 U.S. 296 , 15 S.Ct. 367 , 39 L.Ed. 430 ; Baccus v. Louisiana, 1914, 232 U.S. 334 , 34 S.Ct. 439 , 58 L.Ed. 627 ; Ex parte Gilstrap, 1915, 171 Cal. 108 , 152 P. 42 , Ann.Cas.1917A, 1086.
There is no hard and fast constitutional rule by which classifications can be judged. Only those manifestly arbitrary will be denied sanction.
As said by Mr. Justice Sutherland in Bayside Fish Co. v. Gentry, 1936, 297 U.S. 422, 429 , 56 S.Ct. 513, 516 , 80 L.Ed. 772 : “It never has been found possible to lay down any infallible or all-inclusive test by the application 'of which it may be determined whether a given difference between the subjects of legislation is enough to justify the subjection of one and not the other to a particular form of disadvantage. A very large number of decisions have dealt with the matter; and the nearest approach to a definite rule which can be extracted from them is that, while the difference need not be great, the classification must not be arbitrary or capricious, but must bear some just and reasonable relation to the object of the legislation. A particular classification is not invalidated by the Fourteenth Amendment merely because inequality actually results. Every classification of persons or things for regulation by law produces inequality in some degree; but the law is not thereby rendered invalid (Atchison, T. & S. F. R. Co. v. Matthews, 174 U.S. 96, 106 , 19 S.Ct. 609 , 43 L.Ed. 909 ), unless the inequality produced be actually and palpably unreasonable and arbitrary. Arkansas Natural Gas Co. v. Railroad Commission, 261 U.S. 379, 384 , 43 S.Ct. 387 , 67 L.Ed. 705 , and cases cited.” (Italics added.)
And see, Joseph S. Finch & Co. v. McKittrick, D.C.Mo.1938, 23 F.Supp. 244 ;
The sporadic as distinguished from the permanent use of a highway, the occasional as contrasted with the regular engagement in transportation, and the personal as differentiated from the commercial use of a highway, have been sanctioned as constitutionally valid criteria in establishing classifications. Illustrative are the following: An act differentiating between a common carrier operating over regular routes between fixed termini and other carriers (Bekins Van Lines v. Riley, 1929, 280 U.S. 80 , 50 S.Ct. 64 , 74 L.Ed. 178 ); an ordinance requiring that persons engaged in the business of letting out automobiles to be driven by others pay a license fee and deposit an insurance policy for the protection of persons and property against negligent operations by the lessees .and not making a similar. requirement from others (Hodge Drive-It-Yourself Co. v. Cincinnati, 1932, 284 U.S. 335 , 52 S.Ct. 144 , 76 L.Ed. 323 ); an ordinance taxing motor carriers on the basis of gross ton miles, but exempting those operating wholly within a city or village and private carriers (Continental Baking Co. v. Woodring, 1932, 286 U.S. 352 , 52 S.Ct. 595 , 76 L.Ed. 1155 , 81 A.L.R. 1402 ); a statute imposing an annual license fee on private carriers by motor vehicle and exempting vehicles engaged in hauling farm products *957 between certain points, and agricultural and dairy products owned by producers (Aero Mayflower Transit Co. v. Georgia Public Service Commission, 1935, 295 U.S. 285 , 55 S.Ct. 709 , 79 L.Ed. 1439 ); a statute imposing a license fee for the transportation of persons or property on highways by motor vehicles for hire or compensátion, but excluding vehicles operating exclusively within incorporated cities or towns and the like (Ex parte Bush, 1936, 6 Cal.2d 43 , 56 P.2d 511 ); a statute which gives preference to vehicles used in the business of their owners over those used by common carriers. Bradley v. Public Utilities Commission of Ohio, 1933, 289 U.S. 92 , 53 S.Ct. 577 , 77 L.Ed. 1053 , 85 A.L.R. 1131 . In the case last cited, the Court said: “It is contended that the statute as applied to the plaintiff violates the equal protection clause of the Fourteenth Amendment. * * * One argument is that the statute discriminates unlawfully against common carriers in favor of shippers who operate their own trucks. In dealing with the problem of safety of the highways, as in other problems of motor transportation, the state may adopt measures which favor vehicles used solely in the business of their owners, as distinguished from those which are operated for hire by carriers who use the highways as their place of business.” Bradley v. Public Utilities Commission, 289 U.S. 92, 97 , 53 S.Ct. 577, 579 , 77 L.Ed. 1053 , 85 A.L.R. 1131 . (Italics added.)
Even if it be conceded that the enforcement of the statute may result in an advantage to residents of the state selling used automobiles, we should not, because of this, deny validity to it. The legislation being clearly within the state’s power, neither legislative motives nor legislative polity should call for judicial interference. As said by the Supreme Court in South Carolina State Highway Dept. v. Barnwell Bros., Inc., 1938, 303 U.S. 177, 190, 191 , 58 S.Ct. 510, 517 , 82 L.Ed.-:
“When the action of a Legislature is within the scope of its power, fairly debatable questions as to its reasonableness, wisdom, and propriety are not for the determination of courts, but for the legislative body, on which rests the duty and responsibility of decision. Jacobson v. Massachusetts, 197 U.S. 11, 30 , 25 S.Ct. 358 , 49 L.Ed. 643 , 3 Ann. Cas. 765; Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 365 , 30 S.Ct. 301 , 54 L.Ed. 515 ; Price v. Illinois, 238 U.S. 446, 451 , 35 S.Ct. 892 , 59 L.Ed. 1400 ; Hadacheck v. Sebastian, 239 U.S. 394, 408-414 , 36 S.Ct. 143 , 60 L.Ed. 348 , Ann. Cas.1917B, 927; Thos. Cusack Co. v. Chicago, 242 U.S. 526, 530 , 37 S.Ct. 190 , 61 L.Ed. 472 , L.R.A.1918A, 136, Ann.Cas.1917C, 594; Euclid v. Ambler Realty Co., 272 U.S. 365, 388 , 47 S.Ct. 114, 118 , 71 L.Ed. 303 , 54 A.L.R. 1016 ; Zahn v. Board of Public Works, 274 U.S. 325, 328 , 47 S.Ct. 594, 595 , 71 L.Ed. 1074 ; Standard Oil Co. v. Marysville, 279 U.S. 582, 584 , 49 S.Ct. 430 , 73 L.Ed. 856 . This is equally the case when the legislative power is one which may legitimately place an incidental burden on interstate commerce. It is not any the less a legislative power committed to the states because it affects interstate commerce, mid courts are not any the more entitled, because interstate commerce is affected, to substitute their own for the legislative judgment.” (Italics added.)
Hence my conviction that the challenged Act is a valid exercise of the police power of the state, which does not transgress the commerce clause (Constitution of the United States, Art. 1, Sec. 8, U.S.C.A.Const. art. 1, § 8) or the equal protection or due process clauses of the Constitution of the United States. Constitution of the United States, Fourteenth Amendment, Cl. 1, U.S.C.A.Const. Amend. 14, § 1.
In Great Northern R. Co. v. Washington, 1936, 300 U.S. 154 , 57 S.Ct. 397 , 81 L.Ed. 573 , from which the main opinion quotes, there is the following statement which would seem to' place on the state the burden of proving the reasonableness of the charges:
“The court thought the plaintiff had the burden of showing that the sums exacted from rail carriers substantially exceeded the amounts expended for regulation and supervision, and the proofs offered were insufficient to shift the burden to the defendant. This view was erroneous. Fo ote & Co. v. Stanley, 232 U.S. 494 , 34 S.Ct. 377 , 58 L.Ed. 698 .” (Page 162, 57 S.Ct. page 401.) (Italics added.)
The opinion was by a divided court. The minority opinion written by Mr. Jusr tice Cardozo and concurred in by The Chief Justice, and Justices Brandéis and Stone, insisted that the burden is the other way:
“Still the burden is on the railroads to satisfy the court that what was contributed by them, was more than what was expended for their account, since otherwise the common pot may have been a help and not a hurt. That burden was not discharged. Far from being discharged, there was a disclaimer of any attempt or purpose to discharge it. And so the case must fail.” (Pages 168, 169, 57 S.Ct. page 404.) (Italics added.)
Even if the ,majority opinion be taken as controlling, the case is clearly distinguishable. The court there was dealing with a state tax levied directly on interstate carriers, to cover state inspection and supervision. In other words, the court was dealing with a direct levy on interstate commerce. Here we are dealing with a levy primarily intrastate, which may affect interstate commerce only indirectly. When this is the ease, the burden to prove excessiveness is always on those who challenge the levy.
It never shifts. Great Northern R. Co. v. Washington, supra, was decided on February 1, 1937. On April 26, 1937, the Supreme Court in Bourjois, Inc., v. Chapman, 1937, 301 U.S. 183, 187, 188 , 57 S.Ct. 691, 694 , 81 L.Ed. 1027 , speaking unanimously, through Mr. Justice Brandéis, who had been one of the dissenters in the former case, distinguished it in the manner just stated, saying:
“Here, the statute operates directly only upon intrastate commerce. Where interstate commerce is only indirectly affected, it rests upon one challenging the legislation to show actual undue burden upon such commerce. See Pacific Telephone & Telegraph Co. v. Tax Commission, 297 U.S. 403 , 56 S.Ct. 522 , 80 L.Ed. 760 , 105 A.L.R. 1 . The mere fact that the fees imposed might exceed the cost of inspection is immaterial.” (Italics added.)
However, I am of the view that even if the burden is on the state to show that the exactions under this statute are not excessive, it has met it.