Appendix — American Trucking Assns. v. Conway
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supreme Court, 0.
FILED
86-69 JUL 21 1986
crn
IN THE
Supreme Court of the United States
OCTOBER TERM, 1986
AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,
Petitioners
Vv.
WILLIAM Conway, et al.,
Respondents
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF VERMONT
Of Counsel: DANIEL R. BARNEY
WILLIAM S. BusKER Counsel of Record
Vice President, ROBERT DIGGEs, JR.
Legal Affairs ATA LITIGATION CENTER
American Trucking 2200 Mill Road
Associations, Inc. Alexandria, VA 22314-4654
ey ee (703) 838-1865
Rosert H. MovER STEPHEN M. SHAPIRO
CONLEY & FooTe ANDREW L. FREY
P. O. Drawer 391 KENNETH S. GELLER
Middlebury, VT 05753 MAYER, BROWN & PLATT
2000 Pennsylvania Ave., N.W.
Washington, D.C. 20006
(202) 463-2000
Attorneys for Petitioners
SS}.
WILSON - Eres Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001
APPENDIX
TABLE OF CONTENTS
American Trucking Associations, Inc. v. Conway,
No. 83-484 (Vt. Feb. 21, 1986) (“ATA II”) .........
American Trucking Associations, Inc. v. Conway,
No. 83-484 (Vt. Feb. 21, 1986) (Entry Order) _....
American Trucking Associations, Inc. v. Conway,
No. 83-452 (Vt. Feb. 21, 1986) (“ATA I’)
American Trucking Associations, Inc. v. Conway,
No. 83-452 (Vt. Feb. 21, 1986) (Entry Order) ......
American Trucking Associations, Inc. v. Conway,
No. GB-GB1 (Vt. Sent. 7, 19GB) ....ccccccncceccccoccccescccoseess
American Trucking Associations, Inc. v. Conway,
No. $185-82 WnC (Vt. Super. Ct., Washington
Cty., Dec. 7, 1983) (Opinion and Order) ......... his
American Trucking Associations, Inc. v. Conway,
No. S$185-82 WnC (Vt. Super. Ct., Washington
Seas NG IIE chs csccnsicchanchancideippnasieapsiniatcssnacibdieeinieate
American Trucking Associations, Inc. v. Conway,
No. §$217-81 WnC (Vt. Super. Ct., Washington
Cty., Aug. 5, 1983) (Amended Findings of Fact)...
American Trucking Associations, Inc. v. Conway,
No. 8217-81 WnC (Vt. Super. Ct., Washington Cty.,
Jan. 1, 1982) (Findings of Fact, Conclusions of
Law, and Judgment Order) .......................0.....cc000000---
American Trucking Associations, Inc. v. Conway,
No. S217-8! WnC (Vt. Super. Ct., Washington Cty.,
June 4, 1981) (Order Denying Temporary Injunc-
RSE EIT SIRE Is i ARE
American Trucking Associations, Inc. v. Conway,
No. 81-155 (D. Vt. May 29, 1981) ..................22222-----
Statutes:
Vt. Stat. Ann. tit. 23, §367 (Supp. 1982), as
amended by 1981 (Adj. Sess.), No. 172, §3 (1982)
ee Dy A RMR SP
Page
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15a
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24a
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80a
82a
ii
TABLE OF CONTENTS—Continued
Page
Vt. Stat. Ann. tit. 23, §415 (Supp. 1981), as
amended by 1981, No. 87, § 18 (1981) (“Act 87”).. 88a
Vt. Stat. Ann. tit. 23, § 415 iat 1982), as
amended Bay ROG BTR ncecviiicciniscrsnitnnsttiitiinnasisimnatislaiiputalines 89a
Vt. Stat. Ann. tit. 23, § 415, as amended by 1985
(Adj. Sess.), No. 124, §10 (1986) (“Act 124”)... 90a
Vt. Stat. Ann. tit. 23, §415a (Supp. 1981), as
ence Day By TE incicithinccctccsihtannbdarinniniianiabed 9la
Vt. Stat. Ann. tit. 23, §417 (Supp. 1981), as
emnamndints Tete GE BF acne tciticencsttssitcaletaceiainn 92a
Vt. Stat. Ann. tit. 23 §417 (Supp. 1982), as
emncmenl. Bap Tk TGR cicstcistticncninssnivvcinsasinitiariagtivsniatatcbiventi 92a
Vt. Stat. Ann. tit. 23, § 421 (Supp. 1985)........--..... 93a
Vt. Stat. Ann. tit. 23, § 3007 (Supp. 1982), as
qmeeee Get Bee TR aca ectneieens conn 94a
Vt. Stat. Ann. tit. 23, § 3007, as amended by Act
BI oovccccoccisiosisorienenitnicheniinsionsindgscninieiaiatana ine 96a
Vt. Stat. Ann. tit. 23, §3010 (Supp. 1982), as
qmpeteted Ba BG UGE eisccicicconieieniaetenan 97a
Vt. Stat. Ann. tit. 23, § 3010, as amended by Act
GIG, ceenccicccecnsnsnocnscinncsetnitiienilieisisittitiiigsiplataiammmltasai 98a
Vt. Stat. Ann. tit. 23, § 3020(b) (Supp. 1985) ......... 99a
Vt. Stat. Ann. tit. 23, § 3024 (Supp. 1985) ............. 99a
Vt. Stat. Ann. tit. 23, § 328 (Supp. 1985) .............. 100a
ae A RET el,
la
APPENDIX A
SUPREME COURT OF VERMONT
NOVEMBER TERM, 1984
No. 83-484
AMERICAN TRUCKING ASSOCIATIONS, INC., CHEMICAL LEA-
MAN TANK LINE[s], INC. and ANDERSON TRUCKING
SERVICE, Individually and on behalf of all others sim-
ilarly situated
Vv.
WILLIAM CONWAY, Commissioner of Motor Vehicles;
PAUL PHILBROOK, Vermont Commissioner of Public
Safety; RICHARD SNELLING, Governor of State of Ver-
mont and THOMAS EVSLIN, Secretary of Vermont
Agency of Transportation
[Filed Feb. 21, 1986]
On appeal from Washington Superior Court
James L. Morse, J.
Ralph A. Foote, Robert H. Moyer, and Charles Star-
buck of Conley and Foote, Middlebury, for plaintiffs-
appellees
John J. Easton, Jr., Attorney General, and Zander B.
Rubin and Robert C. Schwartz, Assistant Attorneys Gen-
eral, Montpelier, for defendants-appellants
2a
PRESENT: Allen C.J., Hill, Underwood, Peck and Gib-
son, JJ.
PECK, J. The defendants appeal an order of the
Washington Superior Court declaring unconstitutional
statutes imposing fuel user license fees, 23 V.S.A. 8§ 415,
3007, and trip permit fees or temporary authorization
fees, 23 V.S.A. § 3010, on foreign-registered trucks. The
lower court found that these statutes, challenged by plain-
tiffs in a class action,’ violated the Commerce Clause of
the United States Constitution by discriminating against
interstate commerce. The court held the statutes uncon-
stitutional because under the statutory scheme foreign
truck owners or operators must pay certain fees which
are not offset by complementary domestic or foreign taxes
on Vermont-registered trucks.
Defendants appeal, alleging, first, that the trial court
sitting in equity and consisting of a presiding judge and
an assistant judge, had no jurisdiction to hear the case;
and second, the fees imposed pursuant to the challenged
statutes do not violate the Commerce Clause of the United
States Constitution. We disagree and affirm the trial
court’s decision.
The plaintiffs also appeal the lower court’s order deny-
ing platinffs’ motion for a court-ordered refund of any
1 Pursuant to a stipulation filed with the superior court, the
named plaintiffs represent:
the class of all interstate motor carriers whose base truck
registrations are issued by jurisdictions other than the State
of Vermont (that is the persons owning or operating motor.
trucks upon the highways of the State not registered or re-
quired to be registered in this State, in the language of 23
V.S.A. § 3007(b)), and who are now or may in the future
become subject to the requirements and liable for payment of
the fees set forth in 23 V.S.A. §§ 415, 3007, and 3010 and
section 15(c), all as enacted and amended pursuant to Number
172 of the Acts of the 1982 (1981 adjourned) session of the
Vermont Legislature.
3a
fees, fines or penalties collected pursuant to the objection-
able statutes. We affirm the denial of a refund.
In 1982 this Court considered another challenge to the
constitutionality of certain fees imposed by Vermont on
foreign-registered trucks. American Trucking Associa-
tions, Inc. v. Conway, 142 Vt. 17, 451 A.2d 42 (1982).
There the plaintiff class challenged a fee system imposed
by 23 V.S.A. §§ 415-419 (Cum. Supp. 1982) (Act 87).
In the earlier case, this Court vacated the judgment of
the lower court, which had upheld the fee system imposed
under Act 87, and remanded for further factual findings.
Id, at 28, 451 A.2d at 45. During the pendency of the
appeal of that case, American Trucking Associations, Inc.,
supra, the Vermont legislature amended the fee system
for foreign trucks by 1982, No. 172 (Adj. Sess.) now
codified at 23 V.S.A. §§ 415-423 (Cum. Supp. 1982) (Act
172). American Trucking, supra, 142 Vt. at 19, 451
A.2d at 43. In this case, we consider the validity of the
fee system imposed under Act 172.
Act 172 provides that owners or operators of trucks
weighing 18,000 pounds or more, and operated on Ver-
mont highways, whether registered in the state or not,
2 We summarized Act 87:
Act No. 87 required operators of trucks with a gross weight
of 18,000 pounds or more which were registered outside of
Vermont to obtain a permit, costing $40, for each truck that
would be owned or operated in Vermont. Id. at §18 (codified
at 23 V.S.A. §415 (Cum. Supp. 1982)). In addition, a fee
was charged for each time a foreign-registered truck entered
the state. The entry fee was $15, with a surcharge of $10 if
the foreign truck was registered in a state that imposed more
than one tax on trucks using its highways. Id. at §19 (codi-
fied at 23 V.S.A. § 417 (Cum. Supp. 1982)). In lieu of these
two charges, operators could purchase a single trip permit,
which authorized a single entry into Vermont for a fee of $40.
Id. at § 18a (codified at 23 V.S.A. §415a (Cumm. Supp. 1982).
American Trucking Associations, Inc. v. Conway, supra, 142 Vt.
at 18, 451 A.2d at 42.
4a
must either: (1) pay a $50.00 annual fuel user’s license
fee, 23 V.S.A. §§ 415, 3007; (2) acquire a “single trip
permit,” costing $50.00, 23 V.S.A. § 3010(a); or, (3)
acquire a “temporary authorization” costing $50.00, 23
V.S.A. §3010(b). There is no dispute that each of the
above-mentioned statutes would produce the same effect—
owners or operators of trucks weighing 18,000 or more
must pay $50.00 to use Vermont highways. For the pur-
poses of this opinion, any reference to the “$50.00 user
fee” is a reference to all three of the challenged statutes,
23 V.S.A. $§ 415, 3007 and 3010(a), (b). In an amend-
ment to the motor vehicle registration provision, Act 172
reduced by $50.00 the annual registration fee owed by
owners of Vermont-registered trucks weighing 18,000
pounds or more. 23 V.S.A. § 367.
Plaintiffs sought declaratory and injunctive relief, con-
tending 1i...t the fees imposed, under Act 172, on out-of-
state trucks constituted an unlawful burden on inter-
state commerce and otherwise violated their rights under
the Commerce Clause of the United States Constitution,
the Supremacy Clause of the United States Constitution,
the Revised Interstate Commerce Act, 49 U.S.C. § 10101
et seq., the Fourteenth and Fifth Amendments to the
United States Constitution, the Privileges and Immuni-
ties Clause of the United States Constitution, and Article
9 of Chapter I of the Vermont Constitution. In addition
to the request for injunctive and declaratory relief, plain-
tiffs sought repayment by the State of any fees collected
pursuant to the challenged statutes.
When it considered the challenged statutes in conjunc-
tion with the registration fee refund of $50.00 which
benefited only Vermont-registered trucks, 23 V.S.A. § 367,
the trial court ruled that the statutes, 23 V.S.A. §§ 415,
3007 and 3010, all violated the Commerce Clause of the
United States Constitution. However, the lower court
neither discussed nor decided plaintiffs’ other claims. In
a motion to alter judgment, plaintiffs requested that the
5a
fees already collected under Act 172 be refunded. The
court denied the motion. Defendants filed a timely appeal
of the court’s order declaring the statutes unconstitu-
tional, while plaintiffs appealed the court’s order denying
them monetary relief.
I.
Defendants’ first claim on appeal is that the judgment
is void for lack of jurisdiction, given the presence of an
assistance judge during the adjudication of equitable
matters. Under Soucy v. Soucy Motors, Inc., 143 Vt. 615,
620, 471 A.2d 224, 227 (1983), this fact would require
reversal. In Solomon v. Atlaitis Development, Inc., 145
Vt. 70, 74-76, 483 A.2d 253, 256-57 (1984), however, we
held that Soucy will be applied prospectively only. Be-
cause the court decided this case prior to December 12,
1983, the date Soucy was issued, this case is not subject
to reversal under Soucy.
Nevertheless, under our iaw prior to Soucy, the pres-
ence of assistant judges in cases in equity could require
reversal. See Maskell v. Beaulieu, 140 Vt. 75, 453 A.2d
699 (1981); Pockett v. LaDuke, 189 Vt. 625, 432 A.2d
1191 (1981). Here, however, the case was decided on
stipulated facts, so there was no hearing and no fact-
finding by the assistant judge. In Brower v. Holmes
Transportation, Inc., 140 Vt. 114, 485 A.2d 952 (1981),
we determined that the assistant judges’ presence did not
constitute an improper influence “where only a legal
ruling as to summary judgment is involved.” Jd. at 118,
435 A.2d at 954. Therefore, the unanimous decision
based upon stipulated facts submitted without a hearing
does not require reversal under pre-Soucy law.
II.
Next we consider defendants’ claim that the trial court
erred when it ruled the challenged statutes unconstitu-
tional under the Commerce Clause of the United States
Constitution.
niall
6a
Initially, we must consider defendants’ contention that
the lower court improperly applied the test of Complete
Auto Transit, Inc. v. Brady, 480 U.S. 274 (1977). De- ‘
fendants contend that Complete Auto’s test only applies
to commerce clause challenges to statutes which impose
taxes on the privilege of doing business in the state, not
“use” taxes. The proper test in our case, according to
defendant, is the one employed in the pre-Complete Auto
line of cases known as “flat fee” cases. See, e.g., Capitol
Greyhound Lines v. Brice, 389 U.S. 542 (1950); Aero
Mayflower Transit Co. v. Board of Railroad Commis-
sioners, 332 U.S. 495 (1947); Aero Mayflower Transit
Co. v. Georgia Public Service Commission, 295 U.S. 285
(1925). The third prong of the Complete Auto test—
whether the tax discriminates against interstate com-
merce—is also an element of the test employed in the
flat fee cases. See, eg., Aero Transit Co., supra, 332
U.S. at 501-03. The challenged components of Act 172
fail to survive scrutiny under this “discrimination” ele-
ment or prong; therefore, it does not matter which test
is applied.
The trial court ruled that the challenged statutes, 23
V.S.A. §§ 415, 3007 and 3010, violated the Commerce
Clause of the United States Constitution, in part, because
the tax discriminates against interstate commerce. The
United States Supreme Court has ruled that a state tax
is not per se invalid because it burdens interstate com-
merce as interstate commerce may be made to pay its
way. Maryland v. Louisiana, 451 U.S. 725, 754° (1981).
Nevertheless,
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[o]ne of the fundamental principles of Commerce
clause jurisprudence is that no State, consistent with
the Commerce Clause, may “impose a tax which dis-
criminates against interstate commerce ... by
providing a direct commercial advantage to local
business.” Northwestern States Portland Cement
Co. v. Minnesota, 358 U.S. 450, 458 (1959). See
TT |
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Boston Stock Exchange v. State Tax Comm’n, 429
U.S. 318, 329 (1977). This antidiscrimination prin-
ciple “follows inexorably from the basic purpose of
the Clause” to prohibit the multiplication of prefer-
ential trade areas destructive of the free commerce
anticipated by the Constitution. Boston Stock Ex-
change, supra. See Dean Milk Co. v. Madison, 340
U.S. 349, 356 (1951) .
Id. at 754. The challenged provisions of Act 172 discrimi-
nate against interstate commerce by providing a direct
commercial advantage to Vermont truckers. See Westing-
house Electric Corp. v. Tully, 104 S. Ct. 1856, 1865-68
(1984). The trial court noted that, in considering the
user fee requirements of the Act, it could not “but be
aware of the consequences of the most recent amendments
to the licensing and registration statutes,” also part of the
Act. We, too, are unable to ignore the registration statute
and its effect. Act 172 not only imposed the annual
$50.00 fees which have been directly challenged; but it
also reduced by $50.00 the registration fee owed by
Vermont truck operators or owners with trucks weighing
18,000 pounds or over, who would otherwise be subject to
the challenged $50.00 fee. The registration fee reduction
shifts the entire impact of the user fee legislation onto
foreign operators, thereby discriminating against them.
We note that foreign truck owners who have complied
with their home state registration requirements need not
register their trucks in Vermont if the operators’ home
jurisdictions afford Vermont-registered trucks the same
benefit. 23 V.S.A. § 411. The parties stipulated to the
fact that virtually all United States jurisdictions have
similar reciprocity and registration provisions. Thus, as
stipulated, virtually all motor trucks pass freely in inter-
state commerce if they have complied with their home
state registration requirements. But, if the challenged
Act were given effect, foreign truck operators, in the class
subject to the fees, would be burdened with an additional
8a
cost of doing business if they decided to use Vermont
highways. Vermont truckers, on the other hand, would be
effectively exempt from the additional fees imposed by
Act 172.
One might argue that any foreign-registered truck
owner or operator could take advantage of the credit
allowed Vermont truckers by simply registering their
trucks in Vermont. That is, members of the plaintiff
class, whose trucks are already registered in their home
states, could avoid the Vermont use taxes challenged here
by registering their trucks in Vermont. However, if
Vermont could impose such a tax, then so could every
other state throughout the nation. National Bellas Hess,
Inc. v. Department of Revenue, 386 U.S. 753, 759 (1967).
One can hardly imagine a result more “destructive of the
free commerce anticipated by the Constitution.” Mary-
land v. Louisiana, supra, 451 U.S. at 754. If, in order to
avoid paying user fees in other states they entered,
truckers were required to register their trucks in those
other states, the cost of doing interstate business would
be greatly increased thereby burdening interstate com-
merce.
Defendant also argues that the Vermont registration
fees, as well as purchase and use taxes, paid by Vermont
truckers are complementary and therefore offset the user
fees. We disagree. Vermont has statutorily exempted
foreign truckers from the registration fees, 23 V.S.A.
§ 411, and the purchase and use tax, 32 V.S.A. §§ 8902
(2) and 8903(a), (b). When a Vermont trucker pays
his registration fee and his purchase and use tax, the
Vermont trucker, by virtue of the reciprocity agreements,
purchases the right to operate in other states as well as
Vermont. See American Trucking Associations, Inc. v.
Quinn, 487 A.2d 623, 627 (Me. 1981). On the other
hand, under Act 172 when a foreign trucker pays the
challenged user fee, he only buys the right to use Ver-
mont roads; however, he already contributed indirectly
9a
to the Vermont highway maintenance fund by virtue of
reciprocity. Id. Act 172 forces foreign-based truckers to
pay yet another fee for the use of Vermont highways
without also enacting the same fee from Vermont truck-
ers. We affirm the lower court’s decision that provisions
of Act 172, 23 V.S.A. §§ 415, 3007 and 3010, are uncon-
stitutional and unenforceable.
Il.
We now turn to plaintiffs’ appeal of the trial court’s
decision denying plaintiffs’ request for repayment of fees,
fines or penalties collected pursuant to the objectionable
statutes.
As noted above, in their prayer for relief, plaintiffs
asked that the lower court order defendants to repay
plaintiffs any fees or penalties “wrongfully, illegally or
unconstitutionally collected pursuant to the challenged
statutes.” Further, the parties stipulated that if parts
of Act 172 were declared unconstitutional, any fees or
penalties “wrongfully or illegally obtained by the State
of Vermont ... may be refunded pursuant to 23 V.S.A.
§ 3020, .. . 28 V.S.A. § 328 or in any other manner or-
dered by such court.” In its initial order of July 27,
1983, the trial court failed to address the refund issue.
In response to plaintiffs’ subsequent motion to alter judg-
ment, the lower court denied plaintiffs’ refund request
for three reasons. The court indicated that (1) because
its jurisdictional power was confined to declaring the
rights of the parties and ordering prospective relief, a
declaratory judgment was sufficient without the need for
injunctive relief; (2) a monetary judgment was barred
by the doctrine of sovereign immunity; and, (3) while
the superior court recognized that it could conduct a de
novo review of a decision of the Commissioner of Motor
Vehicles, 23 V.S.A. § 3023, there was no such decision
by the Commissioner in this case.
10a
At the outset, we note that the stipulation regarding
the refund, quoted above, provides little assistance in
resolving this issue. The stipulation represented an agree-
ment that, should the superior court or higher court
declare Act 172 unconstitutional and should that court
order the state to repay fees and penalties, the refund
would be made “pursuant to 23 V.S.A. § 3020... 23
V.S.A. § 328 or in any other manner ordered by such
court.” Thus, it cannot be argued that by stipulation
the defendants conceded that the superior court had to
refund the collected fees if it declared the statute in-
valid. Rather, the stipulation only recites possible repay-
ment methods should the named courts order the refund.
This stipulation has no effect until a court orders the
refund of the taxes. This we decline to do.
We base our decision on sovereign immunity. In Ver-
mont, the State cannot be sued without its consent for
injuries resulting from the exercise of functions essen-
tially governmental in character. Stoneman v. Vergennes
Union High School District #5, 189 Vt. 50, 53, 421 A.2d
1307, 1309 (1980). The imposition of a tax on fuel
users for highway maintenance is an essential govern-
mental activity, which could be performed only by a
governmental entity. See Dugan v. City of Burlington,
135 Vt. 303, 304-05, 375 A.2d 991, 992 (1977), Hasel-
huhn v. Huron-Clinton Metropolitan Authority, 106 Mich.
App. 461, 468, 308 N.W.2d 190, 193 (1981).
However, suits challenging the constitutionality of a
state statute or its enforcement are not considered suits
against the State for purposes of sovereign immunity.
Larson v. Domestic & Foreign Commerce Corp., 337 U.S.
682, 690-91 (1949); Stoneman, supra, 139 Vt. at 53,
421 A.2d at 1309 (1980). But an action to recover
money which would be payable from state funds may be
barred as a suit against the State. Larson, supra, 337
lla
U.S. at 691 n.11; see also Agency of Environmental
Conservation v. Casella, 142 Vt. 503, 505, 457 A.2d 633,
634 (1983).
This distinction is grounded in the principle of sov-
ereign immunity that the state legislature should deter-
mine the State’s liability for money judgments. “It is
inherent in the nature of sovereignty not to be amen-
able to the suit of an individual without its consent.”
The Federalist No. 81, at 511-12 (A. Hamilton) (Wright
ed. 1961) (emphasis in original).
The United States Supreme Court’s analysis of when
a suit is against a state for Eleventh Amendment pur-
poses also supports this distinction. See e.g., Quern v.
Jordan, 440 U.S. 332, 337-38 (1979) (federal court’s
power is limited to prospective relief and may not in-
clude a retroactive award payable from the state treas-
ury); Edelman v. Jordan, 415 U.S. 651, 663 (1974)
(retroactive award of disability benefits wrongfully with-
held barred as a suit against the state); Ford Motor
Co. v. Department of Treasury, 323 U.S. 459, 463 (1945)
(suit for a refund of taxes allegedly collected in vioiation
of the Commerce Clause is a suit against the state).
This action for a tax refund is a suit against the state,
and therefore, is barred by sover’ gn immunity unless
the State has waived its immunity. Appellees argue that
23 V.S.A. § 3020(b) is a waiver of sovereign immunity
which would compel a refund in this case.
23 V.S.A. § 3020(b) provides:
If the commissioner determines that a tax, penalty,
interest or fee required by this chapter has been
paid more than once by a licensee, or has been il-
legally or erroneously collected or computed, the ex-
cess amount paid or collected shall be credited to the
tax account of the licensee. ... Any balance of the
excess amount remaining in the licensee’s account
12a
after crediting the overpayment shall be refunded if
requested ....
This section has the clear purpose of redressing errors
in the enforcement or implementation of the diesel fuel
tax. It merely provides for a refund mechanism if errors
are made in determining what tax is imposed. “Although
it has been stated that ‘the courts will adjudge monetary
claims founded upon statute, because the Legislature has
inferentially indicated an intent to provide the sums
needed to make good the statutory scheme’, in this case
such an inference is negated by the fact that the Legis-
lature denied funding.” Stoneman, supra, 139 Vt. at 54,
421 A.2d at 1310 (citation omitted). Here, the Vermont
legislaiure has not inferentially indicated its intent to
provide the amounts paid to the state under a statute
later declared invalid. The legislature may be presumed
to rely on the receipt of tax revenues received from
valid properly administered enactments. The power to
levy taxes and appropriate the resulting funds is a fun-
damental attribute of sovereignty. That power would
be sorely compromised if private citizens were able to
do what the executive branch may not do—spend state
funds without legislative appropriation. “Where no ap-
propriation has been made, no action for a money judg-
ment can be maintained.” Id. Therefore, we affirm the
denial of a refund of taxes collected under Act 172.
Affirmed.
FoR THE COURT:
/s/ Louis P. Peck
Associate Justice
13a
APPENDIX B
SUPREME COURT OF VERMONT
NOVEMBER TERM, 1984
Supreme Court Docket No. 83-484
ENTRY ORDER
AMERICAN TRUCKING ASSOCIATIONS, [NC., CHEMICAL LEA-
MAN TANK LINE[S], INC. and ANDERSON TRUCKING
SERVICE, Individually and on behalf of all others sim-
ilarly situated
Vv.
WILLIAM CONWAY, Commissioner of Motor Vehicles;
PAUL PHILBROOK, Vermont Commissioner of Public
Safety; RICHARD SNELLING, Governor of State of Ver-
mont and THOMAS EVSsLIN, Secretary of Vermont
Agency of Transportation
[Filed Feb. 21, 1986]
Appealed From Washington Superior Court
Docket No. S-185-82WnC
In the above entitled cause the Clerk will enter:
Affirmed.
FOR THE COURT:
/s8/ Louis P. Peck
LouIs P. PECK. .
Associate Justice
14a
Concurring:
/s/ Frederic W. Allen
FREDERIC W. ALLEN
Chief Justice
/s/ William C. Hill
WILLIAM C. HILL
Associate Justice
/s/ Wynn Underwood
WYNN UNDERWOOD
Associate Justice
/s/ Ernest W. Gibson III
ERNEST W. GIBSON III
Associate Justice
15a
APPENDIX C
SUPREME COURT OF VERMONT
APRIL TERM, 1985
No. 83-452
AMERICAN TRUCKING ASSNS., INC., INTERNATIONAL TRANS-
PORT, INC., HARNUM, B.H., INC., Individually and on
behalf of all others similarly situated
V.
WILLIAM CoNWAY, Comm’r., Motor Vehicles, PAUL PHIL-
BROOK, Comm’r., Public Safety, RICHARD SNELLING,
Governor, State of Vermont, and THOMAS EVSLIN, Sec-
retary, Agency of Transportation, each individually
and in their official capacities
[Filed Feb. 21, 1986]
On Appeal from Washington Superior Court
Edwin H. Amidon, Jr., J., Acting Superior Judge
Ralph A. Foote, Robert H. Moyer, and Charles Star-
buck of Conley and Foote, Middlebury, for plaintiffs-
appellants
Jeffrey L. Amestoy, Attorney General, and Robert C.
Schwartz, Assistant Attorney General, Montpelier, for
defendants-appellees
PRESENT: Allen, C.J., Hill, Peck, Gibson and Hayes, JJ.
16a
PECK, J. This is an appeal by the plaintiff class*
from the November 16, 1983, judgment order of the
Washington Superior Court, which dismissed plaintiffs’
action with prejudice. Plaintiffs had challenged the con-
stitutionality of a set of statute which authorized the
imposition of certain fees upon truck owners or operators
whose trucks were not registered in Vermont. The trial
court upheld the fee system as constitutional. We reverse.
Vermont adopted the challenged fee system in 1981.
23 V.S.A. §§ 415-419 (Cum. Supp. 1982) (Act 87). We
have previously summarized Act 87:
Act No. 87 required operators of trucks with a gross
weight of 18,000 pounds or more which were regis-
tered outside of Vermont to obtain a permit, costing
$40 for each truck that would be owned or operated
in Vermont. Id. at § 18 (codified at 23 V.S.A. § 415
(Cum. Supp. 1982) ). In addition, a fee was charged
for each time a foreign registered truck entered the
state. The entry fees was $15, with a surcharge of
$10 if the foreign truck was registered in a state
that imposed more than one tax on trucks using its
highways. Id. at § 19 (codified at 23 V.S.A. § 417
(Cum. Supp. 1982)). In lieu of these two charges,
operators could purchase a single trip permit, which
authorized a single entry into Vermont for a fee of
$40. Id. at § 18a (codified at 23 V.S.A. § 415a (Cum.
Supp. 1982)). None of these fees were assessed
against Vermont registered trucks.
American Trucking Associations, Inc. v. Conway, 142
Vt. 17, 18-19, 451 A.2d 42, 42-43 (1982). The fees were
paid into the “Transportation Fund” for construction
and maintenance of Vermont highways.
1 The members of the plaintiff class were defined by court order
as “all interstate motor carriers primarily registered outside of
the State of Vermont and now or during pendency of this action
subject to payment of fees prescribed by 23 V.S.A. § 415, §415a
and § 417.”
17a
In 1981 plaintiffs attacked Act 87 on constitutional
grounds, alleging, among other things, that the fee sys-
tem violated the Commerce Clause of the United States
Constitution. Plaintiffs requested declaratory, injunctive
and monetary relief. The trial court held the fee system
constitutional and plaintiffs appealed. This Court vacated
the judgment of the lower court and remanded for addi-
tional findings of fact. Id. at 23, 451 A.2d at 45. On
remand the trial court again declared the Act constitu-
tional. The new judgment was based, in part, on a stipu-
lation of the parties adopted in the original court decree,
the findings as amended, and the original conclusions of
law. The stipulation included an agreement that:
But for the registration fees provided for in 23
V.S.A. 367 and 23 V.S.A. 371 (a), the purchase and
use taxes [32 V.S.A. § 9701-9818] assessed by the
State of Vermont, and the gasoline fuel taxes assessed
on fuels purchased in the State of Vermont, carriers
whose motor vehicles are registered in the State of
Vermont pay no fees, taxes or other asessments to
the State of Vermont for the operation of their motor
trucks within the boundaries of Vermont.
The original findings included:
All of the United States jurisdictions impose registra-
tion licensure on the domiciliary motor trucks. It
is thus a fact that virtually all motor trucks pass
freely, as far as compliance with registration require-
ments is concerned, in interstate commerce through-
out the nation if they have complied with the reg-
istration requirements of their state of domicile.
The trial court held the fee system imposed under Act 87
did not discriminate against interstate commerce because
it operates as a compensation tax. In effect, the court
held that the Act 87 fees imposed on foreign-registered
truckers were offset by, or served to compensate for, the
fees imposed on only Vermont registered truckers—
18a
registration fees, 23 V.S.A. § 367, and the purchase and
use taxes, 32 V.S.A. §§ 9701-9818.
The fees imposed by Act 87 are not “compensatory”
and are violative of the Commerce Clause. A state tax “is
not per se invalid because it burdens interstate commerce
since interstate commerce may constitutionally be made
to pay its way.” Maryland v. Louisiana, 451 U.S. 725,
754 (1981). Nevertheless, the state’s right to tax inter-
state commerce is limited. Two tests have been employed
by the United States Supreme Court in considering the
constitutionality of taxes affecting interstate commerce.
The parties disagree as to which test should be applied.”
To survive a Commerce Clause challenge under either
test, the state-imposed tax must not discriminate against
interstate commerce. We need not decide which test
applies as Act 87 fails under the discrimination prong of
both.
As indicated by the Supreme Court:
One of the fundamental principles of Commerce
Clause jurisprudence that no State, consistent with
the Commerce Clause, may “impose a tax which dis-
criminates against interstate commerce . . . by pro-
viding a direct commercial advantage to local busi-
2 The proper test, according to plaintiffs, is the one announced
in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 287 (1977):
1. Is the taxed activity sufficiently connected to the State to
justify a tax?
2. Is the tax fairly related to benefits provided the taxpayer?
3. Does the tax discriminate against interstate commerce?
4. Is the tax fairly apportioned?
On the other hand, defendant contends the proper test is the one
employed in a pre-Complete Auto line of cases known as “flat fee”
cases. See, e.g., Capitol Greyhound Lines v. Buce, 339 U.S. 542
(1950) ; Aero Transit Co. v. Comm'rs, 332 U.S. 495 (1947); Aero
Mayflower Transit Co. v. Georgia Public Service Comm’n, 259 U.S.
285 (1935).
19a
ness.” Northwestern States Portland Cement Co. v.
Minnesota, 358 U.S. 450, 458 (1959). See Boston
Stock Exchange v. State Tax Comm'n, 429 U.S. 318,
329 (1977). This antidiscrimination principle “fol-
lows inexorably from the basic purpose of the Clause”
to prohibit the multiplication of preferential trade
areas destructive of the free commerce anticipated
by the Constitution. Boston Stock Exchange, supra.
See Dean Milk Co. v. Madison, 340 U.S. 349, 356
(1951).
Maryland v. Louisiana, supra, 451 U.S. at 754.
The defendants apparently conceded that all members
of the plaintiff class are engaged in interstate commerce.
On the other hand, for the purpose of this case, Vermont-
registered trucks constitute an element of local or intra-
state commerce. Given this fact, we conclude Act 87
on its face discriminates against interstate commerce
and violates the Commerce Clause. In American Truck-
ing Associations, Inc. v. Quinn, 487 A.2d 628, 627 (Me.
1981), a statute requiring foreign trucks in Maine to
pay much higher permit fees than Maine truckers was
ruled facially discriminatory and violative of the Com-
merce Clause. Similarly, under Act 87 foreign-registered
truckers must pay the fees while Vermont-registered
truckers and their customers are protected from the im-
pact of the tax. Members of the plaintiff class are at a
competitive disadvantage. It is true that the members
of the plaintiff class need pay neither Vermont regis-
tration fees, 23 V.S.A. § 411%, nor the sales and use
% Any motor vehicle owned by a nonresident shall be considered
registered in Vermont if the nonresident owner has complied with
the laws of his home state. This exemption only applies to the
extent that the laws of the nonresident’s home state grant similar
exemptions to Vermont-registered motor vehicle owners and oper-
ators. Since the members of the plaintiff class have all complied
with their home state registration requirements, they need not
register in Vermont unless their home states do not grant similar
privileges to Vermonters.
20a
taxes, 32 V.S.A. § 8903*. They need not pay these fees
and taxes only because they have registered their ve-
hicles, and therefore paid theiy registration fees, in their
home state. Having thus waived the right to impose
either the sales and use tax or the registration fee upon
foreign-registered trucks, Vermont may not point to those
taxes as complementary for the purpose of saving an
otherwise discriminatory tax. As the Maine Supreme
Judicial Court said:
When an owner or operator of a Maine-based truck
pays his registration fee, he purchases the right to
operate in any of 46 states; the highway use fee set
by section 246-A, by contrast, buys for the foreign-
based truck only the right to use Maine roads. In a
practical economic sense, reciprocity represents an
indirect contribution by foreign-based trucks to the
treasury of the State of Maine; the agreement of
their home states not to tax Maine-based trucks
leaves Maine free to collect more than it otherwise
could from its own truckers.
American Trucking Associations, Inc. v. Quinn, 437 A.2d
at 627.
When the members of the plaintiff class registered in
their home states they purchased the right tc perate in
states like Vermont with registration reciprocity similar
to that embodied in 23 V.S.A. § 411. Just like the plain-
tiffs in Maine, the members of the plaintiff class have
already indirectly contributed to Vermont’s treasury by
virtue of this reciprocity. Thus, the sales and use taxes
and the registration fees imposed on Vermont truckers
are not complementary to and do not save the facially
discriminatory provisions of Act 87.
4 Members of the plaintiff class need nut pay the purchase and
use tax because they have never registered their vehicles in the
State of Vermont.
2la
Plaintiffs’ claim for monetary relief is controlled by
our opinion in American Trucking Associations, Inc. v.
Conway, —— Vt. ——, 508 A.2d 408 (1986), in which
we held that sovereign immunity barred a similar claim.
Accordingly, we deny this claim for monetary relief.
FoR THE COURT:
/s/ Louis P. Peck
Associate Justice
22a
APPENDIX D
SUPREME COURT OF VERMONT
APRIL TERM, 1985
ENTRY ORDER
Supreme Court Docket No. 83-452
AMERICAN TRUCKING ASSNS., INC., INTERNATIONAL TRANS-
PORT, INC., HARNUM, B.H., INC., Individually and on
behalf of all others similarly situated
Vv.
WILLIAM Conway, Comm’r., Motor Vehicles, PAUL PHIL-
BROOK, Comm’r., Public Safety, RICHARD SNELLING,
Governor, State of Vermont, and THOMAS EVSLIN, Sec-
retary, Agency of Transportation, each individually
and in their official capacities
[Filed Feb. 21, 1986]
Appealed From Washington Superior Court
Docket No. S-217-81WnC
In the above entitled cause the Clerk will enter:
Reversed.
FOR THE COURT:
/s/ Louis P. Peck
Lou!s P. Peck
Associate Justice
23a
Concurring:
/8/ Frederic W. Allen
FREDERIC W. ALLEN
Chief Justice
/s/ William C. Hill
WILLIAM C. HILL
Associate Justice
/8/ Ernest W. Gibson III
ERNEST W. GIBSON, III
Associate Justice
/3/ Thomas L. Hayes
THOMAS L. HAYES
Associate Justice
24a
APPENDIX E
SUPREME COURT OF VERMONT
No. 82-021
AMERICAN TRUCKING ASSOCIATIONS, INC. and INTERNA-
TIONAL TRANSPORT, INC., and G. H. HARNUM, INC., in-
dividually and on behalf of all others similarly situated
Vv.
WILLIAM CONWAY, PAUL PHILBROOK, RICHARD SNELLING,
and THOMAS EVSLIN
Sept. 7, 1982
Before BARNEY, C.J., and BILLINGS, HILL, UN-
DERWOOD and PECK, JJ.
HILL, Justice.
This case presents a challenge to the constitutionality
of various fees imposed on trucks from other states for
entering Vermont. The trial court upheld the fees as
constitutional. We vacate and remand for further fac-
tual findings.
The named plaintiffs, American Trucking Association [s]
and two individual trucking firms, instituted this class
action on behalf of all interstate motor carriers whose
vehicles were primarily registered in states other than
Vermont. The plaintiffs principally challenged a fee sys-
tem imposed by the Vermont Legislature in 1981 on for-
25a
eign registered trucks. The challenged provisions were
adopted in the Act of May 13, 1981, No. 87, §§ 18-19a,
1981 Vt. Acts 329, 340-42 (codified at 23 V.S.A. §§ 415-
419 (Cum.Supp.1982)) (hereinafter Act No. 87). Act
No. 87 required operators of trucks with a gross weight
of 18,000 pounds or more which were registered outside
of Vermont to obtain a permit, costing $40, for each
truck that would be owned or operated in Vermont. Id.
at §18 (codified at 23 V.S.A. § 415 (Cum.Supp.1982) ).
In addition, a fee was charged for each time a foreign
registered truck entered the state. The entry fee was
$15, with a surcharge of $10 if the foreign truck was
registered in a state that imposed more than one tax on
trucks using its highways. Id. at §19 (codified at 23
V.S.A. § 417 (Cum.Supp.1982)). In lieu of these two
charges, operators could purchase a single trip permit,
which authorized a single entry into Vermont for a fee
of $40. Id. at § 18a (codified at 23 V.S.A. § 415a (Cum.
Supp.1982)). None of these fees were assessed against
Vermont registered trucks.
A critical aspect of Act No. 87 was its repeal of 23
V.S.A. § 419 (1978), which permitted the Commissioner
of Motor Vehicles to make reciprocal agreements with
officials from other states waiving the imposition of the
fees. Vermont had such agreements with thirteen states
and the District of Columbia when Act No. 87 was en-
acted. The state cancelled all these agreements by June
15, 1981.
The plaintiffs also challenged the validity of the fee
system in place before the passage of Act No. 87. That
system required foreign registered trucks to pay an
annual fee of $20 for a permit to travel on Vermont
highways. 23 V.S.A. §415 (1978). Truckers could elect
to purchase a single trip permit for $20. 23 V.S.A.
§ 415a (1978). In addition, the state imposed a $10 fee
for each entry into Vermont on trucks from states which
26a
taxed Vermont trucks for using their highways. 23
V.S.A. § 417 (1978).
The plaintiffs requested declaratory, injunctive, and
monetary relief. They claimed that the two fee systems
violated the commerce clause of the United States Con-
stitution, the supremacy clause of the United States Con-
stitution, and the privileges and immunities clause of
the United States Constitution. They also claimed that
the tax schemes violated article nine of chapter one of
the Vermont Constitution.
The trial court rejected the plaintiffs’ claims. It held
that the fee system survived constitutional scrutiny un-
der both the state and federal constitutions. The plain-
tiffs appealed from that judgment.
During the pendency of this appeal, the Vermont Leg-
islature again amended the fee system for foreign trucks.
In the Act of April 20, 1982, No. 172, §§ 4-7a, 1981 Vt.
Acts 188, 209-11 (Adj.Sess.) (codified at 23 V.S.A.
§§ 415-423 (Cum.Supp.1982)) (hereinafter Act No. 172),
the legislature imposed a uniform $50 fee on all trucks
powered by nondiesel fuels. The fee applies to trucks
registered in and outside of Vermont. Id. at § 4 (codified
at 23 V.S.A. § 415 (Cum.Supp.1982)). In addition, Act
No. 172 repealed Act No. 87’s entry fee for each time
a foreign truck entered Vermont, and substituted a “re-
taliatory” tax; if a foreign truck is registered in a state
that imposes certain fees on Vermont trucks, that truck
is required to pay a $10 fee each time it enters Vermont.
Id. at §19 (codified at 23 V.S.A. § 417(a) (Cum.Supp.
1982)). Act No. 172 also restored the Commissioner’s
power to make reciprocal agreements with other states
to waive truckers’ fees, and directs the Secretary of
Transportation to negotiate with other New England
states to establish a regional system for truckers’ fees.
Id. at §§ 7, Ta (codified at 23 V.S.A. §§ 419, 423 (Cum.
Supp.1982) ).
Ke
27a
The validity of Act No. 172 has never been at issue
in this case. Thus, the sole issue in this appeal is
whether the plaintiffs are entitled to refunds for taxes
collected under Act No. 87 and its predecessor system,
on the ground that the taxes were unconstitutionally
exacted.
The plaintiffs’ most substantial claim’ is under the
commerce clause of the United States Constitution. To
be upheld under that clause, Act No. 87 and its prede-
cessor must survive the test of Complete Auto Transit,
Inc. v. Brady, 480 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d
826 (1977). There, the Supreme Court held that a tax
on interstate commerce will be upheld if “the tax is ap-
plied to an activity with a substantial nexus with the
taxing State, is fairly apportioned, does not discriminate
against interstate commerce, and is fairly related to the
services provided by the State.” Id. at 279, 97 S.Ct. at
1079. The plaintiffs do not challenge Act No. 87 or its
predecessor under the first two prongs of this test. They
limit their attacks to claims that the fee system dis-
criminated against interstate commerce and did not
fairly relate to services provided by Vermont.
The trial court rejected the plaintiffs’ assertion of dis-
crimination on the grounds that (1) the fees collected
from foreign trucks were not significantly disproportion-
ate to those collected from Vermont trucks, and (2) the
fees were not a discriminatory tax in addition to the
foreign trucks’ registration fees in their domiciliary
states, because Vermont trucks could be subjected to such
fees in other states. This form of analysis reflects the
1The plaintiffs’ claims under the fourteenth amendment and
article nine of chapter one of the Vermont Constitution also rest
on the asserted discriminatory impact of the taxes. Thus, the
factual findings on the effect of the taxes are critical to these
claims as well. We also postpone consideration of the plaintiffs’
supremacy clause claim until we have the benefit of further find-
ings on the discrimination issue
28a
practical approach endorsed by the Supreme Court in
Complete Auto Transit. The indicia of constitutionality
is the actual impact of a tax on interstate commerce.
Maryland v. Louisiana, 451 U.S. 725, 756, 101 S.Ct.
2114, 2134, 68 L.Ed.2d 576 (1981). Nevertheless, while
we concur in the methodology employed by the trial court,
we conclude that the trial court did not make adequate
findings to either support its judgment or enable us to
properly review its decision.
The decisive issue in this case is whether Act No. 87
and its predecessor placed an unfair burden on interstate
commerce. “All tax burdens do not impermissibly im-
pede interstate commerce. The Commerce Clause balance
tips against the tax only when it unfairly burdens com-
merce by exacting more than a just share from the
interstate activity.” Department of Revenue v. Associa-
tion of Washington Stevedoring Co., 485 U.S. 734, 748,
98 S.Ct. 1388, 1398, 55 L.Ed.2d 682 (1978). It has long
been recognized that “interstate commerce must bear its
fair share of the state tax burden.” Id. at 750, 98 S.Ct.
at 1399. The issue, then, is whether these schemes ex-
acted unfair burdens, or simply assessed a fair share of
the tax cost. Only a comparison of the costs imposed on
foreign and domestic trucks in return for the services
provided by Vermont sheds light on this inquiry.
The trial court’s findings purport to make this com-
parison. Unfortunately, the findings are inadequate and
contradictory. The court found that “certain foreign
motor carriers would in fact save in their costs of opera-
tion if they were-to register some or all of their motor
vehicles in the State of Vermont.” This, of course, is the
essence of discrimination: the weight of the tax on
the same truck is heavier if it is registered outside of
Vermont. Yet, the trial court also found: “There is no
evidence that the user fees paid . . . by foreign vehicles
for use of Vermont highways are higher than such fees
paid by Vermont registered vehicles through registration
29a
fees and the vehicle purchase and use tax.” The con-
tradiction between these findings is inexplicable.
Moreover, the finding. do not address critical evidence
presented in the record. One of the named plaintiffs
presented evidence showing that if all states imposed
the fees mandated in Act No. 87, they would exceed its
corporate earnings by tenfold. The trial court did not
deal with this evidence. The court did make findings on
the total costs and costs per mile of the named plaintiffs.
There is, however, no comparison of the costs with those
of Vermont truckers. On appeal, the plaintiffs argue that
the costs imposed on Vermont trucks were substantially
lower tian those imposed on the foreign trucks. They
base their argument upon raw data on Vermont truck
usage, drawn from the record and multiplied by the stat-
utory tax rates. If these data are accurate, the dis-
crimination is manifest, severe, and unconstitutional. See
American Trucking Associations, Inc. v. Quinn, 437 A.2d
623, 627 (Me. 1981). Without the benefit of findings on
this point, however, we cannot say whether the actual
impact of Act No. 87 and its predecessor on interstate
commerce was discriminatory.
The trial court made findings concerning the propor-
tion of the tax revenues contributed by foreign and Ver-
mont trucks under the challenged fee system. The court
also made findings concerning the proportionate num-
bers of foreign and domestic trucks using Vermont high-
ways. These findings, however, tell us nothing about the
critical facts, which are the number of miles travelled
on Vermont highways by the two classes of trucks as
compared to their respective tax burdens. As recently
noted by the Maine Supreme Judicial Court, costs in
the trucking industry are primarily calculated on a per-
mile basis. See id. at 627 n.7. Only by comparing the
cost per mile imposed by the fee systems on foreign as
opposed to Vermont trucks can this Court assess whether
the systems were actually discriminatory. The number
80a
of foreign trucks using Vermont highways is irrelevant
to this point.
Perhaps an even more telling flaw in the trial court’s
findings is the failure to distinguish the impact of the
different tax schemes at issue. There are two systems,
comprised of six separate levies, at issue in this case.
The discriminatory impact of each of these levies may
vary. Yet, the trial court’s findings do not distinguish
the imp2ct of one system from the other. Nor do they
separate the impact of the various levies within each
system. These distinctions may amount to a world of
constitutional difference. The impact of one levy within
Act No. 87 may be constitutional while another levy is
invalid. Simply because the plaintiffs have challenged all
of these statutes en masse does not mean that the stat-
utes may be judged en masse. The impact of the two
systems, and the individual levies which comprise those
systems, should be separately detailed in precise findings.
“Findings of fact made under V.R.C.P. 52 must state
the facts essential to the disposition of the cause.” Van
Velsor v. Dzewaltowski, 1386 Vt. 103, 106, 325 A.2d 1102,
1104 (1978). In this case, we are unable to determine
from the findings whether the challenged statutes are un-
constitutionally discriminatory. On remand, if the plain-
tiffs have failed to establish their burden of offering evi-
dence on the facts necessary to their claims, findings
to that effect would be appropriate. If, however, there
is sufficient evidence in the record to make valid compari-
sons of the actual costs imposed by the separate levies of
tax schemes on foreign and Vermont trucks, findings on
these points must be made.
Judgment vacated. Cause remanded for further fac-
tual findings.
8la
APPENDIX F
STATE OF VERMONT )
WASHINGTON COUNTY, Ss. )
WASHINGTON SUPERIOR COURT
Docket No. $185-82 WnC
AMERICAN TRUCKING ASSOCIATION [S], et al.
vs.
WILLIAM CONWAY, VERMONT COMMISSIONER OF
MOTOR VEHICLES, et al.
OPINION AND ORDER
Plaintiffs have moved, pursuant to Rule 59(e),
V.R.C.P., to alter the judgment order dated August 31,
1983 to include an order requiring the State to pay the
Plaintiffs and the class they represent any fees, fines or
penalties collected pursuant to the Diesel Fuel Tax Act
(23 V.S.A. § 3007, 415, and 3010). By stipulation
dated October 7, 1982, the parties agreed as follows:
That in the event the Act is finally declared to be
unconstitutional and void in whole or in part, by
Order of a Vermont Superior Court or any higher
court having competent appeals jurisdiction thereof,
any fees and penalties wrongfully or illegally ob-
tained by the State of Vermont and its instrumen-
talities and ordered to be repaid thereby may be
refunded pursuant to 23 V.S.A. 3020... , 23 V.S.A.
328 or in any other manner ordered by such Court.
This action was commenced pursuant to this Court’s
jurisdiction to issue declaratory judgments, 12 V.S.A.
82a
§ 4711, et seg., Neal v. Brockway, 136 Vt. 119 (1978),
and afford relief in cases involving substantial constitu-
tional issues and threatened irreparable harm, Auclair
v. Vermont Electric Power Co., 183 Vt. 22, 24 (1974).
Consequently, our jurisdictional power at this stage of
the litigation is confined to declaring the rights of the
parties and ordering prospective relief. We have deter-
mined that a declaratory judgment is sufficient without
the need for injunctive relief.
Despite the stipulation recited above, this is a case
where an award of a monetary judgment is barred by
the doctrine of sovereign immunity of the type found in
Stoneman v. Vergennes School Dist. #5, 189 Vt. 50,
54-55 (1980). Accord, Edelman v. Jordan, 415 U.S. 651
(1974) (collection of welfare benefits wrongfully with-
held barred by sovereign immunity though prospective
relief permitted) .*
We recognize that the statute authorizes the Washing-
ton Superior Court to conduct a de novo review “after
any decision, order or findings of the Commissioner of
Motor Vehicles... .” 23 V.S.A. § 3023 (emphasis sup-
plied).2, Arguably, our powers of de novo review would
permit us to determine whether taxes should be refunded.
However, there has been no decision on the Commission-
er’s part in this case.
Since this case was not one pursuant to the Court’s
appellate jurisdiction conferred by 23 V.S.R. § 3023,
Plaintiff’s motion must be and is DENIED.
1 The issue of sovereign immunity involves the Court’s jurisdic-
tion over the subject matter and, as such, may be raised at any
point in the proceedings. Berry v. Arnoldware-Rogers, Inc., 127
Vt. 188, 192, 248 A.2d 781 (1968); cf. 5 Wright & Miller, Federal
Practice and Procedure § 1212.
2 Section 3020(b) permits the Commissioner of Motor Vehicles to
refund a tax, penalty, interest or fee required by the Act which “has
been illegally . . . collected.”
83a
Dated at Montpelier, County of Washington, and State
of Vermont, this 7th day of December, 1983.
/s/ James L. Morse
JAMES L. MORSE
Superior Judge
/s/ Willis C. Bragg
WILLIS C. BRAGG
Assistant Judge
84a
APPENDIX G
STATE OF VERMONT )
) ss. ioe
WASHINGTON COUNTY )
WASHINGTON SUPERIOR COURT
Docket No. §185-82WnC
AMERICAN TRUCKING ASSOCIATIONS, INC., and CHEMICAL
LEAMAN TANK LINE[S], INCORPORATED and ANDERSON
TRUCKING SERVICE, Individually and on behalf of all
others similarly situated
vs.
WILLIAM CONWAY, VERMONT COMMISSIONER OF MOTOR
VEHICLES, PAUL PHILBROOK, VERMONT COMMISSIONER
OF PUBLIC SAFETY, RICHARD SNELLING, GOVERNOR OV
THE STATE OF VERMONT, and PATRICK J. GARAHAN,
SECRETARY OF THE VERMONT AGENCY OF TRANSPOR-
TATION
OPINION AND ORDER
This is a challenge to the constitutionality of the diesel
fuel, and non-diesel fuel user and trip licenses required
on an annual basis for all motor trucks weighing over
18,000 pounds. The parties have submitted the case for
decision on the merits on the basis of the following stipu-
lated facts:
1. Plaintiff American Trucking Associations, Inc.,
(“ATA”) is a national non-profit corporation organized
and operating under the non-profit corporation laws of
the District of Columbia and with its principal place of
business located there. ATA is a federation of 51 state
ae Sarees te eID SF
85a
trucking associations (including the District of Colum-
bia) and 13 national conferences. It represents every
type and geographical scope of motor carrier operation
in the United States, including over 10,000 for-hire car-
riers, and tens of thousand of private and local carriers.
Approximately 5,000 non-Vermont based motor carrier
companies, operating a total of approximately 50,000 in-
dividual motor carrier vehicles, are subject to and will
be affected by the fee requirements and penalty provisions
imposed by No. 172 of the Acts of the 1982 (1981
Adjourned) Session of the Vermont Legislature, upon
and after the effective date of said Act, assuming their
use of Vermont highways.
2. Plaintiff, Chemical Leaman Tank Line Incorporated
(Chemical Leaman) is a Delaware corporation with its
principal place of business in Lyonville, Pennsylvania. It
is an interstate motor carrier as defined in the Interstate
Commerce Act. Chemical Leaman operates 1691 tractors
and trucks over 18,000 pounds each that are subject to
the fee and penalty provisions set forth in the statutes
complained of herein. Chemical Leaman is in full com-
pliance with all requirements for highway taxes and fees
as currently imposed by the State of Vermont.
8. Plaintiff, Anderson Trucking Service, Inc. (Ander-
son) is a Minnesota corporation with a principal place
of business in St. Cloud, Minnesota. It is an interstate
motor carrier as defined in the Interstate Commerce Act.
Anderson operates 480 tractors over 18,000 pounds each
that are subject to the fee and penalty provisions of the
statutes complained of herein. Anderson is in full com-
pliance with all requirements for highway taxes and fees
as currently imposed by the State of Vermont.
4. Defendant William H. Conway (Conway) is the
Commissioner of Motor Vehicles of the State of Vermont.
Pursuant to state law, Defendant Conway is charzed with
responsibility for:
36a
(a) acceptance of applications, collection of fees and
issuance of licenses pursuant to Act No. 172
as hereinabove described;
_ (b) suspension or revocation of licenses pursuant to
Act No. 172 as hereinabove described;
(c) acceptance of additional fees and penalties pur-
suant to Act No. 172 as hereinabove described,
and
(d) the enforcement of appropriate penalty provi-
sions contained in Act No. 172 as hereinabove
described.
5. Defendant Richard Snelling, is the Governor of the
State of Vermont and is the chief executive and law en-
forcement officer of the state. Among the statutes under
which the defendant Snelling exercises authority is Title
23, Motor Vehicles, of Vermont Statutes Annotated, in-
cluding the provisions of that Title as set forth in Act
No. 172 as hereinabove described.
6. Defendant Paul Philbrook, is the Commissioner of
Public Safety and as such is the chief enforcement officer
save for the Governor, of all the statutes, rules and regu-
lations pertaining to the laws of the road and is required
by law to cooperate with the Vermont Commissioner of
Motor Vehicles in carrying out all statutes, rules and
regulations relating to the operation of motor vehicles
in the State of Vermont.
7. Defendant Patrick J. Garahan, is the Secretary of
the Vermont Agency of Transportation and as such is
responsible pursuant to Chapter 55 of Title 3 V.S.A. for
the planning, coordination and direction of the functions
of the said agency, which includes under its aegis the
Vermont Motor Vehicle Department.
8. Plaintiff ATA obtained from the Vermont Depart-
ment of Motor Vehicles a listing of foreign based motor
carriers who held Vermont annual highways use permits
from the Department as of June 30, 1982. ATA also ob-
87a
tained a listing of Vermont based motor carriers who had
registered their vehicles in the State of Vermont as of
June 30, 1982. A survey was conducted in July and Au-
gust of 1982 by ATA based upon that information
amongst all motor carriers so listed. Survey question-
naires were sent to 7,753 foreign based carriers. One
hundred fifty-five (155) of those survey questionnaires
were returned addressee unknown. There were 1,200
duplicate questionnaires sent out. Approximately 6,370
carriers were actually contacted. From the group, 1,247
survey responses were received.
Questionnaires were also mailed by ATA to 5,970 Ver-
mont based carriers. Twenty-two (22) of the question-
naires were returned addressee unknown with question-
naires being received by 5,948 carriers. There were 237
responses to the survey from Vermont based motor car-
riers involved in interstate commerce. Two hundred
forty-eight (248) motor carriers responded whose trucks
were used exclusively in intra-state service within Ver-
mont.
9. Fuel, as defined in Chapter 27 of Title 23 V.S.A.
as added by Act No. 172 is diesel fuel or a blend thereof.
10. Pursuant to Act No. 172, users of fuel, such as
the plaintiff class, are required to pay a tax burden on
the amount of motor fuel used within Vermont. The Act
provides a credit mechanism to insure that a motor car-
rier is not charged the same tax by two different states.
11. Members of the plaintiff class, as well as any
others who operate motor trucks of over 18,000 pounds
using gasoline and other non-diesel fuels pay a tax as-
sessed upon any such fuel purchased in Vermont pur-
suant to Act No. 172.
12. But for the exceptions set forth in 23 V.S.A. 3007
and 415(a), all members of the plaintiff class, as well as
all other persons, are required pursuant to Act. No. 172
to purchase either “diesel fuel user licenses” (23 V.S.A.
3007) or “non-diesel fuel user licenses’ (23 YV.S.A.
38a
415(a) as amended) on an annual basis for all motor
trucks of over 18,000 pounds operated by them within
Vermont at an annual license fee per truck of $50.00.
13. As an alternative to and in lieu of the license fees
required by 23 V.S.A. 3007 and 415(a), members of the
plaintiff class are permitted to purchase trip permits,
each such permit authorizing one trip into Vermont pur-
suant to 23 V.S.A. 3010 and 415(c) wr epicaeiiansed at a
cost of $50.00 per trip.
14. The diesel fuel tax is levied on users of fuel
within the state and expressly limits the tax to fuel
actually consumed within the state. A proration scheme
is included within the statute.
15. But for the exceptions set forth therein 23 V.S.A.
3007 provides, inter alia, that in addition to any other
motor vehicle fees, all owners and operators of any motor
truck over 18,000 pounds in gross weight which uses fuel
as above defined must pay a $50.00 annual license fee
for each such motor truck operating upon the highways
of Vermont.
16. 23 V.S.A. 367(a), as amended by said Act No.
172, sets forth the annual fees for registration of motor
trucks and provides, inter alia, that the annual registra-
tion fee for motor trucks with a gross weight of 18,000
pounds or over shall be $50.00 less than the fee computed
in accordance with that said statute.
17. 23 V.S.A. 3009 provides, inter alia, that the Com-
missioner of Motor Vehicles may suspend or revoke the
fuel user’s license of any person who fails to comply with
any provision of the Chapter or any rule adopted pur-
suant thereto.
18. 23 V.S.A. 3010 provides, inter alia, that in lieu of
paying the fee required by 3007 and paying a tax based
on fuel usage in Vermont as required by 3014, an un-
licensed user may pay a $50.00 single trip permit fee,
which permits one motor truck to operate in Vermont for
a single trip not to exceed seven consecutive days.
19. 23 V.S.A. 3022 provides, inter alia, for the collec-
tion by the Commissioner of Motor Vehicles of the fees
hereinbefore described, and in some instances, for the
use of warrants therefore.
20. 23 V.S.A. 3024 provides, inter alia, that any per-
son who willfully fails to comply with the provisions of
Chapter 27 of said Title 23, shall be, in addition to any
other penalties herein or elsewhere prescribed, guilty of
a misdemeanor punishable by a fine of not more than
$5,000.00 or imprisonment for not more than one year
or both. In addition, it allows the imposition of up to a
$2,000.00 fine upon a person who operates a motor ve-
hicle in Vermont without obtaining the diesel fuel user’s
license and marker required in Section 3007.
27. 23 V.S.A. 415, as amended by Act. No. 172 afore-
said, provides inter alia, that in addition to any other
provisions of law relating to registration of motor trucks
with a gross weight of 18,000 pounds or over and pow-
ered by a gasoline or any other non-diesel fuel, a person
operating or owning a motor truck upon Vermont high-
ways shall apply for a non-diesel fuel user’s license and
pay a fee of $50.00 for each such motor truck.
22. 23 V.S.A. 423 requires, inter alia, defendant Sec-
retary of Transportation to negotiate for a compact or
agreement with the other New England states which
would require that the annual user license fee for each
state should be $50.00 as provided by this Chapter for
Vermont. To date, such compact has not been negotiated
with authorized officials of the other New England States.
28. 28 V.S.A. 421(a), as amended by Act No. 172,
provides, inter alia, that it is unlawful for any person to
operate a motor truck without obtaining the permit re-
quired by 23 V.S.A. 415 or to violate any regulation is-
sued by the Commissioner under the Chapter.
40a
24. 23 V.S.A. 2201 provides, inter alia, that a traffic
offense is defined, as amongst other things, a violation of
diesel fuel user’s licenses, non-diesel fuel user’s licenses,
or failure to maintain a log.
25. 23 V.S.A. 367 provides, as amended, and, provided
prior to amendment, inter alia, a schedule for payment
of annual registration fees by owners and operators for
motor trucks operating on Vermont highways. 23 V.S.A.
411 provides, inter alia, that all foreign motor trucks
which have complied with the registration fees imposed
by their own jurisdiction shall be exempt from the pay-
ments called for under 23 V.S.A. 367, where such juris-
diction affords the same reciprocity to Vermont domicilia-
ries. Virtually all jurisdictions in the United States have
similar reciprocity and registration provisions. Thus, vir-
tually all motor trucks pass freely, as far as compliances
with registration requirements are concerned, in inter-
state commerce throughout the nation if they have com-
plied with the registration requirements of their own
state of domicile.
26. The $50.00 motor fuel license fee imposed by 23
V.S.A. 3007 and 415(a) is a part of the motor fuel taxes
imposed to create revenues for the state highway fund.
27. Vermont registered vehicles must obtain the same
$50.00 diesel fuel user’s license and non-diesel fuel user’s
license as foreign registered vehicles are required to
obtain.
28. If a Vermont registered vehicle and a foreign
based vehicle travelled the same number of miles in Ver-
mont in a given year, the cost per mile during that year
due to the $50.00 motor fuel license imposed by 23 V.S.A.
3007 and 415(a) for each of the two vehicles would be
identical.
29. Vermont registered vehicles are unable to purchase
the single-trip license authorized by 23 V.S.A. 3010 and
415(c).
4la
30. By virtue of the nature of their operations, Chemi-
cal Leaman and Anderson, as well as the members of the
class they represent, find predetermination as to which
of their several vehicles will enter Vermont, and how
many times, in a given year, is totally impossible and
is subject to the vagaries of demand, routing and other
factors. Likewise it is impossible to predetermine the
number of miles a motor truck will be operating in Ver-
mont either on a given trip or annually. However, the
operations of such motor carriers when examined on a
fleet basis, provide accurate average figures for the num-
ber of trucks to be qualified for use within the State of
Vermont and the number of miles traveled to Vermont
by each such carrier on an annual basis.
31. During the most recent annual period for which
statistics are available (July 1, 1981 through June 30,
1982), plaintiff Chemical Leaman secured and displayed
Vermont annual permits on 248 of its motor carrier ve-
hicles which operated :
a. 8,170,361 miles everywhere, and
b. 54,041 miles within Vermont.
32. If each of plaintiff Chemical Leaman’s 248 motor
carrier vehicles was qualified to operated in Vermont at
an annual cost of $50.00 each, as called for under Act
No. 172, that would represent a total annual cost to the
plaintiff of $12,400.00.
88. Based upon such projections, the average cost of
the fuel licenses per mile traveled in Vermont to plaintiff
Chemical Leaman would be 22.95 cents.
34. During the most recent annual period for which
statistics are available (July 1, 1981 through June 30,
1982), plaintiff Anderson secured and displayed annual
permits on 184 of its motor carrier vehicles which op-
erated:
a. 8,209,741 miles everywhere, and
b. 80,873 miles within Vermont.
42a
35. If each of plaintiff Anderson’s 184 motor carriers
vehicles was qualified to operate in Vermont at an annual
cost of $50.00 each as called for pursuant to Act No. 172,
that would represent a total annual cost to the plaintiff
of $9,200.00.
36. The average cost of such fuel licenses per mile
traveled in Vermont to plaintiff Anderson would be 11.38
cents.
37. The per mile costs set forth in this Stipulation
are based upon the information obtained by ATA through
its survey of Vermont and foreign based motor trucks as
aforesaid. Based upon the data obtained for the year
July 1, 1981 through June 30, 1982, contained in the
questionnaires distributed by ATA and returned to it as
described in a paragraph 8 hereof, costs per mile for
foreign and Vermont based motor trucks have been cal-
culated pursuant to the fee requirements of No. 172 of
the Acts of the 1982 (1981 Adjourned) Session of the
Vermont Legislature to provide the Court with a statisti-
cal basis upon which to consider the effects of that Act.
38. Based upon a sample of 1,247 interstate motor
carriers operating 23,873 vehicles in Vermont for the
year, July 1, 1981 through June 30, 1982, the average
cost per mile of compliance with the Vermont annual
permit was 6.53 cents for motor carriers with motor
carrier vehicles based in jurisdictions other than Vermont.
This cost calculation is based upon a total Vermont an-
nual plate cost and trip permit cost to these motor car-
riers of $1,193,650 divided by a total of 18,890,483 miles
operated by the carriers’ motor carrier vehicles within
Vermont. The total miles operated by these carriers
everywhere was 6,760,855,458 with the result that 0.28
percent of their total miles were operated in the State.
See Attachment 1.
39. Based upon a sample of 237 interstate carriers for
the year July 1, 1981 through June 30, 1982, the average
48a
cost per mile of compliance with the Vermont fuel li-
cense would be 0.29 cents for motor carriers having in-
terstate motor carrier vehicles registered in Vermont.
This cost calculation is based upon a cost to the carriers
of $34,050 divided by a total of 11,640,139 miles operated
by the carriers in Vermont. The total miles operated by
these carriers everywhere was 29,689,431, with the result
that 39.20 percent of their total miles were operated in
Vermont. See Attachment 2.
40. In addition to the survey replies received from the
237 motor carriers operating 681 interstate motor carrier
vehicles registered in Vermont, the survey resulted in an
additional responses from 248 motor carriers operating
363 motor carrier vehicles registered in Vermont. The
vehicles of these carriers, however, were used exclusively
in intrastate service within Vermont.
41. Based upon their experience in the year July 1,
1981 through June 30, 1982 the following motor carriers
operating motor carrier vehicles based in Vermont would
experience costs per mile of 0.50 cents or greater in com-
plying with the fuel license requirements:
Registrant/Owner Fuel License Cost Per Mile
Henry James Bell $50 $1.0000
Page, Gerald R. $50 $0.5000
Martell, Louis E. $50 $0.5000
42. Based upon their experience in the year-July 1,
1981 through June 30, 1982, the following motor carriers
operating motor carrier vehicles based in states other
than Vermont would experience costs per mile of fifty
(50) cents or greater in complying with the Vermont
fuel license or trip permit requirements:
Registrant/Owner Fuel License Cost Cost Per Mile
Southern Tier Hide Tallow $300 $42.8571
Sammons Trucking $1,850 $32.4561
Cardinal Transport Inc. $8,300 $12.8482
44a
Registrant/Owner Fuel License Cost Cost Per Mile
Delivery Service Corp. $2,400 $10.6194
Dalec Enterprises $100 $8.3333
Trend Line Furniture $1,150 $7.9861
Anderson Peat Organic Com. $100 $7.6923
Ashford Concrete Inc. $100 $7.6923
Cushing, Larry $350 $7.0000
Distribution SVC SYSInc. $10,700 $6.8326
Graphite Products $150 $6.2500
Jarvie Mel Const Co Inc. $1,100 $5.4187
Aubrey, Jay $100 $5.0000
Chester Hide Skin Corp. $200 $5.0000
Ryan E T Iron Works Inc. $100 $5.0000
Sullivan Joseph P Co. $50 $5.0000
Thruway Transfer Inc. $250 $5.0000
Whittle Riley Inc. $2,150 $4.1346
Green Field Transport Co. $2,400 $3,9603
Burnham Van ServiceInc. $17,050 $3.9186
Werner R D Co Inc. $850 $3.8812
Bama Transport Co. $3,100 $3.8130
Carpet Center Lease Co Inc. $400 $3.7735
Derosier Storage Co. $100 $3.5714
Mix, James $100 $3.3333
Bay State Lobster $600 $2.8846
Stearlys Motor Freight $600 $2.4691
Fitch Electronics $100 $2.3809
Steel Transportation Co. $100 $2.2727
AA Transport Inc. $1,800 $2.2670
Murray Envelope Corp. $400 $2.1978
Bird Trucking Inc. $13,900 $2.1858
Colorado Kenworth Inc. $650 $2.1594
Brookville Transport Ltd. $300 $2.1428
Lakeshore Produce Limited $150 $2.1126
Rollings Leasing Corp. $72,300 $2.1051
Global Van Lines Inc. $16,850 $2.0194
Bakelite Thermosets Ltd. $200 $2.0000
South Hills Movers Inc. $100 $2.0000
Springer Barry N Inc. $100 $2.0000
45a
Registrant/Owner Fuel License Cost Cost Per Mile
Hitchcock Bros Inc. $50 $2.0000
Callahan Bros Inc. $350 $1.9553
Beechler, Wm. $50 $1.8518
Treadwell, Hollis $100 $1.8518
Allens Transfer Storage $500 $1.8181
Norfolk Rendering Wks. $750 $1.7857
Interstate Van Lines $3,500 $1.7721
Trans East Inc. $500 $1.7482
Longmont Transport CoInc. $1,100 $1.7460
Geauga Truck Lines Inc. $350 $1.6279
Wyman, Jasper C $50 $1.6129
Steven Mark Inc $850 $1.6037
Mich Tube Swagers FabInc. $100 $1.5625
American Electric Corp. $500 $1.5479
Sunflower Carriers $1,250 $1.5470
Rainbow Exp Siv RW System $100 $1.5384
Palmer Trucking Co Inc. $150 $1.5000
Murphy E L Trk $1,750 $1.4668
Tuscan Dairy Farms $300 $1.4354
Best Pak Inc. $50 $1.4285
Semes Motor Lines Inc. $400 $1.4285
Depriest, Junior $400 $1.3333
Reichhold Chemicals Inc. $200 $1.3333
Hester Industries Inc. $750 $1.3321
Andrew Van Lines $1,200 $1.3274
Lott Motor Lines Inc. $2,200 $1.3157
Moroney Body Works $100 $1.3157
M K Trucking Inc. $850 $1.2996
Bancroft Martin Inc. $450 $1.2605
Days Pat Trailers $100 $1.2500
F GRR Trucking Co. $150 $1.2500
Sloat Farms Transport $50 $1.2500
Taillon Crane Service $250 $1.2500
J LT Inc. $700 $1.2389
Coble Systems Inc. $14,850 $1.2375
46a
Registrant/Owner Fuel License Cost Cost Per Miie
Hartman H A Son Inc. $100 $1.1904
Forney Ray J Inc $100 $1.1764
D AD Transportation $200 -$1.1428
Midwest Refrg Exp Inc. $5,700 $1.1425
Everette Truck Line Inc. $600 $1.1363
UDS Truck Lease Inc. $550 $1.1000
Schedules Truckway $100 $1.0989
Schilli Motor Lines $1,300 $1.0989
Butler Ventamatic Corp. $150 $1.0869
Moran Crowley Environment $300 $1.0869
Anty Trucking $450 $1.0714
Neptune World Wide $850 $1.0664
Harrington Richardson Inc. $1,050 $1,0584
Treen, Fred G $50 $1.0416
Fiamingo Moving & Storage Inc. $50 $1.0416
Amusements of America $2,000 $1.0288
MDR Cartage Inc. $1,000 $1.0232
B Motor Freight $100 $1.0000
Box Mountain Quarries $50 $1.0000
Colonial Trucking Inc. $200 $1.0000
Deane, Chaarles R $50 $1.0000
Flynn, Daniel L $50 $1.0000
Stgermain Transport Ltee $600 $1.0000
Yonder Fruit Farms $100 $1.0000
Pelletier E J Son $150 $0.9375
Rynone Industries Inc. $700 $0.9370
J B Hunt Transport Inc. $6,000 $0.9175
Miller Auto Leasing $50 $0.9090
Howard Indust Inc. ~ $900 $0.8849
Pirozzi, John V $100 $0.8771
Stuart Transportation Co. $2,850 $0.8731
Olson Fred Co Inc. $150 $0.8670
National Car Rent Sys. Inc. $23,350 $0.8579
Everett Piano Co. $300 $0.8571
White Tiger Trans Inc. $700 $0.8464
47a
Registrant/Owner Fuel License Cost Cost Per Mile
Helman E Co Inc. $350 $0.8454
Crete Carrier Corp. $1,050 $0.8433
Arrowhead Mills Inc. $100 $0.8333
Goodnow R H Const. $50 $0.8333
H H Industrial Service $50 $0.8333
Decarolis Truck Rental $900 $0.8196
Johnson Acoustics Inc. $100 $0.8196
Winegard Co. $350 $0.8027
Central Trans $900 $0.7971
Kivort Steel Inc. $100 $0.7874
Crandall, Patrick $50 $0.7812
Hartmans Inc. $2,200 $0.7578
Word of Life Fellowship $50 $0.7575
Heding Truck Service $900 $0.7556
Standard Roofings Inc. $150 $0.7500
Patrick Ind Inc. $100 $0.7462
Seaboard Tank Line Inc. $200 $0.7407
Gibbons John Inc. $50 $0.7246
Cushman Rentals Limited $950 $0.7142
Dutch Gold Honey Inc. $100 $0.7142
Empire Silo Inc. $50 $0.7142
Fairview Inc. $300 $0.7058
Steven Freight Service Co. $350 $0.7000
Getz William Z Inc. $2,650 $0.6794
Hulcher Emergency Service Inc. $600 $0.6703
Brown, Gordon R $100 $0.6666
Ryback, John $6100 $0.6666
Tenney, Harold S. $50 $0.6666
Simco Heating Fuel Co Inc. $100 $0.6666
Maddens Transfer Stge Inc. $400 $0.6611
Fiberdome Inc. $50 $0.6578
Findlay Truck Line Inc. $100 $0.6578
Con Mac Trucking $200 $0.6430
Carter Van Lines $200 $0.6349
Colonial Rubber Works Inc. $1,400 $0.6300
48a
Registrant/Owner Fuel License Cost Cost Per Mile
A A Leasing $100 $0.6250
Kelts, Phyllis $50 $0.6172
J J Log Lumber Corp. $300 $0.6097
Hertz Penske TK LSG $85,000 $0.6024
Central Transport $750 $0.6004
Howard Bown Corp. $250 $0.5980
Scheib Floyd A Inc. $200 $0.5934
Wilco Truck Rental Inc. $6,900 $0.5934
Tallman Transport Inc. $150 $0.5882
Carrier Transport Service $100 $0.5847
Stanford Seed Co. Inc. $350 $0.5833
Rounds, Ralph $50 $0.5813
Leaseway Trans Leas Corp. $5,750 $0.5764
All Corp. $50 $0.5747
Tailion, Daniel $100 $0.5714
E C Trkg $50 $0.5681
Harrison Oil Corp. $100 $0.5649
Caldeonia Lines Inc. $300 $0.5555
Eastman, Roger H $50 $0.5555
Durocher, Sylvain $550 $0.5500
Roll On Inc. $400 $0.5486
Kuhn Transportation Co. $600 $0.5454
Weaver Nelson SDN Inc. $50 $0.5434
Boyle Brothers Inc. $250 $0.5422
Dana Trucking Co. $250 $0.5411
Illinoise CA Express $50 $0.5376
Lasalle Deitch Co Inc. $200 $0.5376
Henry E E Inc. $100 $0.5347
Reed, Deforest L $200 $0.5347
Metals Engineering Corp. $150 $0.5281
Miller Ceramics Inc. $100 $0.5263
Schoch J Son $50 $0.5263
Parlee Lumber Box Co Inc. $100 $0.5208
Butler Trucking $50 -$0.5203
Chem Haulers Inc. $600 $0.5194
49a
Registrant/Owner Fuel License Cost Cost Per Mile
Transpo Intl Inc. $400 $0.5188
B Right-Trucking $150 $0.5136
Fenoff Construction $50 $0.5102
Kilpatrick, Millard $50 $0.5102
Sined Leas Inc. $50 $0.5102
Stallman M H Co Inc. $700 $0.5046
Allied Container Corp. $200 $0.5000
Barrieau Express Inc. $500 $0.5000
Bement, Oak L. . $50 $0.5000
Chapel Hill Fruit Distrib. $50 $0.5000
Johnson Thomas Forest Pro. $200 $0.5000
G. Carriers Inc. $100 $0.5000
Saltmarsh, F W $50 $0.5000
Viking Corrugated $50 $0.5000
Wachusett Tea Co. $300 $0.5000
Woburn Machine Co. $50 $0.5000
Mariano Brothers Inc. $200 $0.5000
43. The average motor carrier vehicle operating at
80,000 pounds gross vehicle weight experiences fuel con-
sumption at 4.9 miles per gallon. The average motor car-
rier vehicles operating at 60,000 pounds gross vehicle
weight experiences fuel consumption of 5.3 miles per
gallon. The average motor carrier vehicle operating at
40,000 pounds gross vehicle weight experiences fuel con-
sumption of 5.9 miles per gallon. The average motor
carrier vehicle operating at 20,000 pounds gross vehicle
weight experiences fuel consumption of 6.6 miles per
gallon.
44. The chart annexed hereto as Attachment 3 sum-
marized and compares the cost per mile of compliance
with the Vermont f° license and trip permit require-
ments for motor carriers with Vermont-based motor car-
rier vehic’es and motor carriers with non-Vermont-based
motor carrier vehicles based upon the aforementioned
ATA surveys.
50a
45. When motor carrier vehicles based in jurisdictions
other than Vermont travel to Vermont, these vehicles
travel an average of 116 miles over Vermont’s highways
per entry into the state.
46. In order to accommodate infrequent trips to Ver-
mont by motor carrier vehicles based in jurisdictions
other than Vermont, Vermont allows compliance with
their laws by the display of a trip permit valid for
seven days in lieu of any fuel tax and fuel user license.
[23 V.S.A. 3010 and 415(c)] Prior to June 1981 each
trip permit cost $20 and was in lieu of the highway use
permit. Subsequent to June, 1981 and prior to the present
legislation becoming effective, each trip permit cost $40
and was issued in lieu of the highway use permit and
the entry fee. Subsequent to enactment of the present
legislation each trip permit cost $50 and was in lieu of
the fuel user license and fuel tax and the reporting re-
quirements of 23 V.S.A. Chapters 7 and 27.
47. Although trip permits may be secured by mail
from the Commissioner of Motor Vehicles, less than 1
percent of the trip permits issued are secured in this
fashion because motor carriers: a) do not have adequate
advance notice of the need for a trip permit to allow
them to order permits in advance; and b) even where
they do have such advance notice, the carrier most com-
monly does not have advance knowledge of which vehicle
will be dispatched for the designated movement.
48. Over 99 percent of the trip permits used by motor
carriers are secured through one of the several permit
services which the Commissioner of Motor Vehicles allows
to transmit trip permits. The permit services: a) accept
orders for trip permits by telephone; b) issue the trip
permit to the motor carrier; and c) transmit the permit
by wire to any one of thousands of locations throughout
the United States designated by the ordering motor car-
rier. These locations include: 1) permit service offices:
5la
2) carrier offices or terminals; and 3) truck stops. The
permit service pays the Commissioner of Motor Vehicles
the required $50 fee for each permit it issues.
49. Although Vermont realized $50.00 in revenue for
each trip permit issued, the motor carrier experiences a
total cost which ranges from $56.50 to $63.00 per trip
permit. This cost includes the permit fee and the permit
service fee. The total permit cost is dependent upon the
selection of the permit service, the location to which the
permit is to be transmitted and the gross volume of busi-
ness tendered by the motor carrier to the
50. The $50.00 annual vehicle fuel license fee is not
intended solely as a means to defray the cost of admin-
istering the Non-diesel Fuel User’s license tax and the
Diesel Fuel Tax.
51. The $50.00 annual vehicle fuel license fee under
Chapter 7 and Chapter 27 of Title 23 is a revenue rais-
ing tax imposed upon users of Vermont highways.
52. Attachment 4 is a tabulation of the fuel report-
ing laws of all fifty states and the District of Columbia
with respect to annual vehicle permit fees.
53. The 1981 annual cost for state fuel tax permits
assessed against Plaintiff Chemical Leaman in the forty-
eight continental United States was approximately $164,-
976.00. If each such state were to assess annual fees
equal to the $50.00 cost of the Vermont fuel license, the
annual cost to Chemical Leaman for such state fuel tax
permits would increase by approximately $1,462,235.00.
Chemical Leaman’s pretax net income for 1981 was $264,-
000.00.
54. The 1981 annual cost for state fuel tax permits
assessed against Plaintiff Anderson Trucking in the
forty-eight continental Uniced States was approximately
$74,775.75. If each such state were to assess annual fees
equal to the $50.00 of the Vermont fuel license, the
52a
annual cost to Anderson-Trucking or state fuel tax
permits would increase by approximately $870,274.00.
Anderson Trucking’s pretax net income for 1981 was
$2,531,726.00.
55. The $50.00 diesel fuel and non-diesel fuel user’s
license fee is not related or intended to be related in
any way to actual mileage travelled in the State of Ver-
mont by the vehicle paying the fee.
56. Burnham Van Service, Inc. (Burnham) is a cor-
poration organized under the laws of the state of Georgia
with its principal place of business located at Columbus,
Georgia. Burnham is principally engaged in the move-
ment of household goods in interstate commerce as 4a
common carrier certificated by the Interstate Commerce
Commission at MC-682. Burnham provides their trans-
portation services for customers between all points in the
contiguous 48 states utilizing its own 21 terminals lo-
cated in 12 states and the facilities of over 200 independ-
ent agents at locations throughout the 48 contiguous
states.
7. During the period July 1, 1981 through June 30,
08, Burnham secured 339 annual Vermont permits and
2 Vermont trip permits which, at the current cost of $50
each, represents an annual expense of $17,050 to qualify
its vehicle to provide service for those moving their house-
hold goods to, from or through Vermont. During this
period Burnham vehicles operate” 14,310,647 miles every-
where and only 4,351 miles in Vermont. Based upon this
previous experience, the Vermont fuel license expenses
would represent a cost to Burnham of $3.9186 per mile
for Vermont operations. Under the old system of $40.00
the per mile cost would have been $3.14.
58. Rollins Leasing Corporation (Rollins) is a cor-
poration organized under the laws of the State of Dela-
ware with its principal place of business in Wilmington,
Delaware. Rollins is principally engaged in the leasing
53a
and renting of trucks on both a long term and short term
basis from 121 leasing and rental offices located in 32
states. Rollins’ lessees operate Rollins trucks throughout
the United States.
59. In order to assure that trucks are qualified to
operate as required by Rollins’ customers, Rollins: quali-
fies their vehicles in almost all states. Leased vehicles
are qualified to operate in the state designated by indi-
vidual long term lessees. Rental vehicles, however, must
be qualified to operate on a short term rental basis in a
broad variety of states in order to assure Rollins ability
to meet the needs of their rental customers and avoid both
the expense of penalty impositions and customer embar-
rassment.
60. During the period July 1, 1981 through June 30,
1982 Rollins secured 1,421 annual Vermont permits and
an additional 25 trip permits for their vehicles in order
for those vehicles to be lawfully qualified for use in
Vermont. The vehicles operated 279,592,180 miles every-
where and only 34,345 miles in Vermont during the same
period. The aggregate cost of these permits at the cur-
rent unit cost of $50 would be $72,300. On a mileage
basis this fuel license expense would represent a cost of
$2.1051 per mile. Under the old system of $40.00 the per
mile cost would have been $1.68.
61. Southern Tier Hide and Tallow, Inc. (Southern
Tier) is a corporation organized under the laws of New
York State with its principal place of business in Elmira,
New York. Southern Tier is principally engaged in the
business of curing animal hides for sale to tanneries in
the further manufacture of leather and leather products.
Southern Tier makes delivery of their cured hides to tan-
neries by use of their fleet of private trucks to points in
14 states and the Canadian provinces of Ontario and
Quebec.
62. During the period July 1, 1981 through June 30,
1982 the Southern Tier fleet of 6 trucks operated 328,805
54a
miles everywhere and only 7 miles within Vermont.
Southern Tier must, to satisfy its customer’s demands,
qualify its entire fleet in Vermont to assure the avail-
ability of its vehicles to deliver cured hides to its customer
Pownal Tanning Company. The Southern Tier fleet qual-
ification in Vermont cost $300 at the current cost of $50
each which would represent a cost of $42.8571 per mile
of Vermont operations based on its prior experience. Un-
der the old system of $40.00 the per mile cost would have
been $34.28.
63. Century Manufacturing Company is a corporation
organized under the laws of Minnesota with its principal
place of business in Minneapolis, Minnesota. Century
operates as a major manufacturer of electric arc-welders
and electric battery chargers sold and serviced for cus-
tomers located in all 50 states. Century operates a fleet
of trucks in the private carriage of its products for de-
livery to customers and for the transport of product com-
ponents from- vendors to its manufacturing facilities
throughout an area embracing all states east of North
Dakota, South Dakota, Nebraska, Kansas, Oklahoma,
Arkansas and Louisiana with the exception of Vermont.
Century’s vehicles have not operated in Vermont since
September 1982 and will not operate in Vermont as a
result of the cost of the requirements imposed through
enactment of No. 172 of the Acts of 1982 (1981 Ad-
journed) Session of the Vermont Legislature.
64. General Cable Company is a corporation organized
under the laws of the State of Connecticut with its prin-
cipal place of business in Greenwich, Connecticut. Gen-
eral is a manufacturer of various wire products manu-
factured at plants located throughout the United States
including electric wiring custom manufactured in Ver-
ment. General is a supplier of electric cords manu-
factured to specifications for Century for use with their
electric arc-welders and electric battery chargers- Since
Century vehicles no longer operate in Vermont, General
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55a
must transport its electric cords for Century to enother
of its facilities in Massachusetts for reloading of the
cords onto Century vehicles.
65. Claremont Lumber Company, Inc. (Claremont) is
a corporation organized under the laws of the State of
Maine with its principal place of business in Claremont, -
New Hampshire. Claremont operates a saw mill at
its principal piace of business manufacturing various lum-
ber products for sale at wholesale with major emphasis
on the manufacture of furniture grade products. Saw-
dust is a major by-product of its manufacturing process
which historically has been sold to dairy farmers in the
region for use as bedding required under rules of the
United States Department of Agriculture.
66. Prior to July 1, 1982 Claremont provided deliv-
eries of its sawdust to approximately 50 dairy farms in
Vermont utilizing its own New Hampshire registered
truck. Each delivery was of about 46 to 48 cubic yards
and delivery frequency ranged from one per month to
some smaller dairy farms to three times weekly for larger
dairy farms.
67. On June 18, 1982 Claremont advised its Vermont
sawdust customers that it would no longer make sawdust
deliveries to points in Vermont because of the new re-
quirements imposed by the Agency of Transportation as
a result of enactment of No. 172 of the Acts of the 1982
(1981 Adjourned) Session of the Vermont Legislature.
68. Of the original 50 Vermont dairy farms to which
Claremont provided sawdust prior to implementation of
the new law, four are continuing to receive sawdust from
Claremont by using their own Vermont-based farm ve-
hicles and the remainder are securing their sawdust from
other sources.
69. The Notice of Class Action Certification required
by the Court in its Order date November 30, 1982 was
published in TRANSPORT TOPICS December 13, 1982.
56a
70. Henry James Beli operates a small farm near
West Arlington, Vermont and has one motor vehicle
registered in Vermont for use in bringing farm supplies
to his farm and delivering his farm products to market.
His farm is not directly connected to any Vermont high-
way. The only access to his farm is from a New York
State highway and, under these circumstances, his mail-
ing address is located in Salem, New York, most of his
farm supplies come from New York State sources and
his farm products are sold in New York State markets.
71. Act No. 172 altered the fee structure paid to the
State of Vermont by foreign registered motor trucks in
the following manner:
(a) The $40.00 annual permit fee previously pro-
vided for under 23 V.S.A. 415 was replaced by
a $50.00 annual diesei fuel user license fee (23
V.S.A. 3007) and a $50.00 annual non-diesel
fuel users license fee (23 V.S.A. 415 as
amended).
(b) The $40.00 single trip permit fee previously
provided for under 23 V.S.A. 415a was re-
pealed. This fee was replaced by a non-diesel
fuel users single trip license fee at $50.00 (23
V.S.A. 415(C) as amended) and a diesel fuel
users single trip permit fee of $50.00 (23
V.S.A. 3010 (a) ).
(c) The entry fee of $15.00 and $25.00 previously
imposed under 23 V.S.A. 417 were repealed.
A $10.00 retaliatory entry fee, which is not be-
ing contested in this case, was substituted for
the previously imposed entry fees.
(d) A diesel fuel tax of 14 cents per gallon was
imposed (23 V.S.A. § 3003).
72. All United States jurisdictions impose registra-
tion licensure with attendant fees on their domiciliary
\
57a
motor trucks. Vermont’s tax is set forth in 23 V.S.A.
362 and 367. The tax is based upon rates per 1,000
pounds which increase at interval weight levels of the
vehicle. Sections 362 and 367 impose this registration
tax on all trucks, without regard to domicile. 23 V.S.A.
411, however exempts from the payments called for un-
der 362 and 367, ali foreign trucks which have complied
with the registration fees imposed by their own jurisdic-
tion, which such jurisdiction affords the same reciprocity
to Vermont domiciliaries. Virtually all motor trucks pass
freely, as far as compliance with registration require-
ments are concerned in interstate commerce throughout
the nation if they have complied with the registration
requirements of their state of domicile. Such free pas-
sage between the states is based upon reciprocity agree-
ments, understandings or declarations of the states pur-
suant to statutory authority similar to that found in 23
V.S.A. 411.
OPINION
In this class action, Plaintiffs challenge the constitu-
tionality of certain fees imposed by the State of Vermont
upon the use of motor trucks within the State. The stat-
utes in issue, 23 V.S.A. § 3007 and 23 V.S.A. § 415, au-
thorize an annual fee of $50.00 for diesel fuel and non-
diesel fuel user licenses. 23 V.S.A. § 415(c) and 23
V.S.A. §3010(a) impose a single trip permit fee of
$50.00 which may be purchased in lieu of the annual
license. Plaintiffs claim that the imposition of these fees
on foreign-based trucks using Vermont highways violates
the Commerce Clause, the Privileges and Immunities
Clause and the Supremacy Clause of the United States
Constitution and Chapter 1, Art. 9 of the Vermont
Constitution.
A state is not barred from requiring interstate com-
merce to bear its fair share of the cost of providing bene-
fits and protections for its activities. Therefore, a state
tax on interstate commerce is valid if (1) it is applied
58a
to an activity with a substantial nexus to the taxing
state; (2) is fairly apportioned; (3) does not discrimi-
nate against interstate commerce; and (4) is fairly re-
lated to the services provided by the state. Complete
Auto Transit, Inc. v. Brady, 480 U.S. 274, 279 (1976).
The practical effect of the taxing statute and not its for-
mal language is controlling. Id.; American Trucking
Assns., Inc. v. Conway, 142 Vt. 17, 21, 451 A.2d 42
(1982). Thus, although the licensing statutes contested
herein are purportedly non-discriminatory on their faces,
imposing a fee on all trucks weighing over 18000 pounds
regardless of whether they are foreign or Vermont regis-
tered vehicles, constitutional scrutiny is not precluded.
Our focus is not on the lack of overt disparity in the
statutes, but rather on whether the fee system results
in actual discrimination which has an adverse affect on
interstate commerce.
Moreover, reluctant as this Court is to impute a dis-
criminatory intent to the legislature, we cannot but be
aware of the consequences of the most recent amend-
ments to the licensing and registration statutes. Previ-
ous versions of 23 V.S.A. § 3007 and § 415 imposed a fee
only on foreign-registered trucks weighing over 18000
pounds. When these statutes were attacked on constitu-
tional grounds, the legislature enlarged their applicabil-
ity to cover all trucks over 18000 pounds. Simultane-
ously, it reduced the registration fee for Vermont trucks
by the amount of the fuel user license fee, $50.00. In
practice, therefore, Vermont-registered trucks receive a
credit in the amount of the license fee against the cost
of registration.
Although Defendant would have this Court ignore the
enactment of a registration fee deduction, we find its
effect on the registration fee structure too irrational to
be merely the result of benign legislative intent. Thus,
we must consider both the registration and the licensing
\
59a
fees in testing the instant taxing scheme by the four
criteria noted above.
In determining whether the statutes at issue violate
the Commerce Clause, we must compare “the costs im-
posed on foreign and domestic trucks in return for the
services provided by Vermont.” American Trucking
Assns. v. Conway, supra at 21. “Only by comparing the
cost per mile imposed by the fee systems on foreign as
opposed to Vermont trucks can [the] Court assess
whether the system ... [is] actually discriminatory.”
Id. at 22.
The data submitted by the parties substantiates Plain-
tiffs’ contention that out-of-state truckers are required
to pay: more in fees than are Vermont-registered truck-
ers, when such costs are computed on a per mile basis.
This additional cost per mile is not a result of additional
services required for out-of-state trucks. We conclude,
therefore, that the statutes contested herein unfairly dis-
criminate against interstate commerce, in violation of
the third prong uf the Complete Auto test, and are not
fairly related to the services provided by the State, in
violation of the fourth prong.
The disparity between the costs imposed on Vermont
and foreign registered trucks is far from insubstantial.
Foreign registered trucks pay, on the average, .0632
cents per mile in user fees; Vermont registered trucks
pay an average of .0029 in such fees. Attachment 3
clearly evidences the grossly unequal burden the present
system imposes on foreign-based carriers. Moreover, if
_the deduction granted Vermont trucks is taken into ac-
count, the disparity between the fees imposed is even
greater.
In practical effect, therefore, a Vermont-registered
truck pays f[a]r less in average per-mile operating costs
for the use of Vermont highways than does a foreign
based vehicle. The difference in cost is not based on any
60a
greater burden imposed on the Vermont highways by the
foreign-based truck, nor any greater benefit derived by
a foreign-based truck. No offset for the discrimination
against interstate commerce is present either in compli-
mentary domestic taxes or in other states’ use permit
fees. (See attachment 4). Many states impose no permit
fee at all, and none impose a fee as high as Vermont
does.
Since the discrimination against interstate commerce
resulting from the contested permit system is not offset
by complimentary domestic taxes or by foreign taxes, the
statutes violate the Commerce Clause.
In view of the foregoing, it is hereby Adjudged and
Decreed that sections 3007, 415, and 3010 are violative of
the Commerce Clause of the U.S. Constitution.
Dated at Montpelier, Vermont this 3lst day of August,
1983.
/s/ James L. Morse
JAMES L. MORSE
Presiding Judge
/s/ Willis C. Bragg
WILLIS C. BRAGG
Assistant Judge
/s/ NA
PATRICIA B. JENSEN
Assistant Judge
6la
ATTACHMENT 1
VERMONT FOREIGN-BASED VEHICLE REGISTRANTS
HIGHWAY USE OPERATING CHARACTERISTICS
7/01/81 - 6/30/82
Number of Carriers: 1,247
Number of Plates: 21,055
Number of Trip Permits: 2,818
Miles Everywhere: 6,760,855,458
Miles in Vermont: 18,890,483
Percent of Miles in Vermont: 0.28%
Total Plate Cost: $1,052,750
Total Trip Permit Cost: $ 140,900
Total Cost: $1,193,650
Average Cost/Mile: $ 0.0632
po mame
62a
ATTACHMENT 2
VERMONT BASED VEHICLE REGISTRANTS
HIGHWAY USE OPERATING CHARACTERISTICS
7/01/81 - 6/30/82
Number of Carriers:
Number of Permits:
Miles Everywhere:
Miles in Vermont:
Percent of Miles in Vermont:
Total Plate Cost:
Average Cost/Mile:
237
681
29,689,431
11,640,139
39.20%
$34,050
$0.0029
63a
ATTACHMENT 3
FUEL
VERMONT PERMIT FEE COST COMPARISON
VERMONT-BASED CARRIERS v.
FOREIGN-BASED CARRIERS
7/1/81 - 6/30/82
Vermont-Based Foreign-Based
% Total Number Cost/Mile Number % Total
0.42% 1 over 1.00 99 7.95 %
0.00% 0 90-100¢ 4 0.32%
0.00% 0 80- 90¢ 15 1.20%
0.00 % 0 70- 80¢ 15 1.20%
0.00% 0 60- 70¢ 17 1.36%
0.84% 2 50- 60¢ 47 3.77 %
0.42% 1 40- 50¢ 41 3.29%
0.42% 1 30- 40¢ 72 5.78%
0.42% 1 20- 30¢ 140 11.24%
1.69% 4 10- 20¢ 248 19.90%
0.00% 0 9- 10¢ 22 1.77%
1.69 % 4 8- 9¢ 35 2.81%
0.84% 2 7- 8¢ 42 3.37 %
0.84% 2 6- 7¢ 40 3.21%
2.95 % 7 5- 6¢ 49 3.93%
1.27% 3 4- 5¢ 49 3.93%
2.11% 5 3- 4¢ 67 5.388%
5.91% 14 2- 3¢ 60 4.82%
12.24% 29 1- 2¢ 90 7.22%
1.69% 4 0.9-1.0¢ 12 0.96%
4.22% 10 0.8-0.9¢ 11 0.88%
4.22% 10 0.7-0.8¢ R 0.64%
1.69% 4 0.6-0.7¢ 17 1.36%
5.49 % 13 0.5-0.6¢ 11 0.88%
7.17% 17 0.4-0.5¢ 14 1.12%
7.59 % 18 0.3-0.4¢ x 0.64%
16.88% 40 0.2-0.3¢ 9 0.72%
14.35% 34 0.1-0.2¢ 2 0.16%
4.64% 11 under 0.1¢ 2 0.16%
Se ee ee eT:
Fuel Reporting Law Vehicle Annual Permit Fees
For the Fifty States and the
State
Alabama
laska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
64a
ATTACHMENT 4
District of Columbia
Fee
$12.00
00
.00
10.00
00
State
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas _
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Dist. of Columbia
65a
APPENDIX H
STATE OF VERMONT )
) ss.
WASHINGTON COUNTY )
Washington Superior Court
Docket No. 8217-81 WnC
AMERICAN TRUCKING ASSOCIATION [S], INC.,
INTERNATIONAL TRANSPORT, INC., and
G. H. HARNUM, INC.
Vv.
WILLIAM CONWAY, PAUL PHILBROOK,
RICHARD SNELLING, and THOMAS EVSLIN
AMENDED FINDINGS OF FACT
This cause was remanded for further Findings of Fact
by Entry Order of the Supreme Court, dated September
7, 1982. A conference was held on October 14, 1982, and
proposed amendments to the original Findings of Fact
and a Memorandum were filed on November 15, Novem-
ber 16 and November 17, 1982.
In accordance with the Remand Order and the Opin-
ion of the Supreme Court, the trial court amends its orig-
inal Findings of Facts as follows:
1. Add Finding No. 5A: “If Plaintiff International
Transport, Inc., had tax costs per mile of operation under
Act No. 87 in every state equal to its projected 36.257
cents per mile tax cost for operation in Vermont, the
said Plaintiff would incur a total annual tax cost of ap-
proximately $32,000,000, which amount is far in excess
of said Plaintiff’s net earnings for 1980 of $3,724,227.65”.
66a
2. Add Finding No. 8A: “If Plaintiff G. H. Harnum,
Inc. were subjected to per mile tax costs in all states
identical to the projected 22.5 cents per mile tax costs
for its operations in the State of Vermont under Act
No. 87, the total annual tax cost to the said Plaintiff
would be $279,225.00, a figure in excess of said Plain-
tiff’s net corporate earnings fur 1980”.
3. Finding No. 11 is amended to réad: “A survey
conducted by Plaintiff of foreign motor carriers presently
operating within the stateof Vermont pursuant to 23
V.S.A. § 415 and § 417 indicates that the projected cost
per mile based on miles operated within Vermont in 1980
ranges from a high of $9.70 per mile to a low of 3.6
cents per mile. This computation includes the payment
of the $15 fee under 23 V.S.A. § 417 for each trip into
the state. The average projected cost for all such foreign
motor carriers is 18 cents per mile. The application of
the $25 fee provided for under 23 V.S.A. § 417 to miles
operated in Vermont in 1980 would result in a high cost
per mile of $14.70 and a low cost of 5.7 cents a mile.
The average cost for all such foreign carriers if the $25
fee was paid would be 26.3 cents a mile. Foreign-regis-
tered carriers that elect to use the § 415(a) single per-
mit system, will experience a Vermont tax cost of 21.7
cents per mile based on their 1980 mileage”. {Added or
changed wording is italicized. |
4. Finding No. 13 is amended to read: “Since Ver-
mont registered motor trucks do not pay fees set forth
in 283 V.S.A. § 415, § 415(a) and § 417, certain individ-
ual foreign motor carriers enter the state so frequently
that they would in fact save in their costs of operation
if they were to register some or all of their motor ve-
hicles in the state of Vermont. However, there is no
credible evidence that the total of user fees paid per mile
or pound of gross weight by all foreign-registered ve-
hicles as a class for use of Vermont highways are higher
than the total of such fees paid by all Vermont-registered
67a
vehicles as a class through registration fees and the Ve-
hicle Purchase and Use Tax’. [Added wording is itali-
cized. |
5. Finding No. 17 is amended to read: “In the ab-
sence of the reciprocity formerly provided under 23
V.S.A. §419, Vermont registered trucks with gross
weight in excess of 18,000 pounds pay substantial high-
way user fees in numerous other states. In New Hamp-
shire and New Jersey these taxes take the form of
“counterpart” or “retaliatory” fees identical to the entry
fees imposed upon foreign trucks using Vermont high-
ways. [Added wording is italicized. }
6. Finding No. 19 is amended to read: “During the
years 1978 and 1980, trucks weighing in excess of 18,000
pounds gross weight constituted approximately 9.89 per-
cent of the total vehicular traffic on the state highway
system and contributed approximately 6 percent of such
total vehicular traffic on all highways in Vermont (both
the state highway system and the local road system)”.
[Changed wording is italicized. ]}
7. Finding No. 20 is amended by striking “1979” in
the first line thereof.
8. Add Finding No. 21A: “Total miles travelled on
all Vermont highways in 1979 by all vehicles was
3,714,300,000 vehicle miles”.
9. Finding No. 27 is amended to read as follows:
“There is no evidence that the total of user fees paid
PER MILE OR PER POUND OF GROSS WEIGHT by
all foreign vehicles as a class for use of Vermont high-
ways are higher than the total of such fees paid by all
Vermont registered vehicles as a class through registra-
tion fees and the Vehicle Purchase and Use Tax”.
[Added wording is underlined and wording omitted in
the Supreme Court opinion is capitalized. ]
10. Add Finding No. 28: “As stated in summary
form in the original Finding No. 27, there is no evidence
68a
of the total costs an@ costs per mile for use of Vermont
highways by trucks registered in Vermont, enabling a
comparison to be made of such costs with those of the
individual Plaintiffs or foreign-registered trucks as a
class for use of Vermont highways. The only evidence
on this issue—as to which no Requests to Find were
originally made by Plaintiffs or Defendants—is insuffi-
cient and unsupported and does not permit the Court to
reasonably make Findings based thereon”’.
11. Add Finding No. 29: “The Plaintiffs now request
the Court to extrapolate and find, without benefit of any
expert analysis, the comparative mileage costs for Ver-
mont-registered trucks from the raw data contained in
the 1977 Federal Census of Transportation (Plaintiff’s
Exhibit 7). This Exhibit contains 1977 mileage data for
combined interstate and intrastate operations. In addi-
tion, there is no evidence in the record as to estimated
truck useful life or any other factual basis for comput-
ing the average annualized Vermont Purchase and Use
Tax payments by Vermont-registered trucks. Cost find-
ings derived from this 1977 raw data from combined
interstate and intrastate operations are simply not com-
parable to Plaintiff’s cost data for foreign-registered
trucks derived from 1980 operations on Vermont high-
ways, without even considering the lack of foundation
for making a per mile Purchase and use Tax allocation
for Vermont-registered vehicles”.
12. Add Finding No. 30: “The only other evidence in
the record on the issue of comparative per mile costs is
the unsupported opinion offered by witness McArthur for
the State that miles travelled by Vermont-registered and
foreign-registered trucks in 1979 were in the same pro-
portion as vehicle counts in 1978 and 1980. The witness
did not give the breakdown of 1979 truck miles, gave no
reason for his opinion and no supporting data. The
Court, therefore, finds the opinion not credible”.
69a
13. Add Finding No. 31: “There is no credible evi-
dence in the record from which the trial court can for
comparable time periods determine the number of miles
travelled on Vermont highways by trucks registered in
Vermont (and thus the tax costs per mile) as opposed to
the number of miles travelled on Vermont highways by
foreign-registered trucks (and thus the tax costs per
mile)”’.
14. Add Finding No. 32: “The specific impacts of the
$40 permit and the $15 or $25 entry fee (23 V.S.A.
§ 415, 417) and the $40 single entry fee (23 V.S.A. &
415(a)) as to which there is evidence in the record are
covered by findings Nos. 5, 8, 10, 11, 13, 22 and 23”.
15. Add'Finding No. 33: “There is no evidence in the
record as to the impact of the Vermont registration fee
and the Vermont Vehicle Purchase and Use Tax System
except as discussed in Findings Nos. 28 and 29”.
16. Add Finding No. 34: “Plaintiffs do not seek re-
fund of taxes paid under the tax scheme in effect prior
to Act No. 87 and thus findings on its separate or com-
parative impact are not required”’.
17. Add Finding No. 35: “A foreign-registered truck
derives no greater benefit from and imposes no greater
burden upon Vermont highways than does a Vermont-
registered truck”.
Dated this 5th day of August, 1983.
/s/ Edwin H. Amidon, Jr.
EDWIN H. AMIDON, JR.
Acting Superior Judge
/s/ Patricia L. Jensen
PATRICIA L. JENSEN
Assistant Judge
70a
APPENDIX I
STATE OF VERMONT
)
) 8s.
)
WASHINGTON COUNTY
WASHINGTON SUPERIOR COURT
Docket No. $217-81 WnC
AMERICAN TRUCKING ASSOCIATION [Ss], INC.,
INTERNATIONAL TRANSPORT, INC., and
G. H. HARNUM, INC.
Vv.
WILLIAM CONWAY, PAUL PHILBROOK,
RICHARD SNELLING, and THOMAS EVSLIN
FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND JUDGMENT ORDER
This cause came on for hearing on the merits on
August 6 and 7, 1981. Ralph Foote, Esq., and Robert
Moyer, Esq., represented the Plaintiffs, and Robert
Schwartz, Esq., represented the Defendants.
Findings of Fact
Based on the parties’ Stipulation of Facts, the plead-
ings and the evidence at the hearing on the merits and
the preliminary injunction hearing, the Court makes the
following findings of fact:
1. The Court hereby adopts and incorporates by refer-
ence the Stipulation of Facts, filed August 6, 1981.
2. Plaintiff International Transport, Inc. registers
approximately 1200 of its trucks in the State of Min-
nesota and 250 in the State of Oklahoma.
Tla
8. During the time period from September 1, 1979,
through August 30, 1980 the total fleet mileage of Inter-
national’s tractors was 88,272,458 miles. International’s
mileage in the State of Vermont during the said time
period was 34,434 miles. Vermont mileage as a percent-
age of total mileage during the said time frame was
039% or roughly 4 out of every 10,000 miles travelled
by International’s vehicles when taken as a whole.
4. In calendar year 1980, International’s trucks made
227 entries into the State of Vermont and accrued regis-
tration fees under 23 V.S.A. 415, 415a and 417 of $4,540,
representing a per mile cost of 13.196 cents.
5. Based upon the amendments to 23 V.S.A. 415, 415a
and 417, International projects its annual costs to be
approximately $12.485 in fees payable to the State of
Vermont. This projection is based upon the number of
entries into Vermont made by International Motor
Trucks in calendar year 1980. Based upon that projected
cost, and International’s experience of 1980 for miles
travelled within Vermont, International projects its cost
per mile as approximately 36.275 cents.
6. G. H. Harnum, Inc. intends to qualify approxi-
mately 15 of its vehicles under the amendments to 23
V.S.A. 415 and to pay trip fees pursuant to 23 V.S.A.
417. If one of those 15 qualified vehicles is not available
to bring freight into the State of Vermont at any given
time, Harnum intends to transfer freight to such a quali-
fied vehicle at its Massachusetts or New Hampshire ter-
minals for delivery into the State.
7. Harnum’s total fleet mileage for calendar year 1980
was approximately 1,241,000 miles. Its approximate
mileage within the State of Vermont was 22,000 miles
which constitutes roughly % of 1 percent of its total
mileage.
8. Based upon its 1980 experience of 290 trips into
the State of Vermont, Harnum projects its registration
72a
costs under 23 V.S.A. 415 and 417 to be $600 for regis-
tration of 15 vehicles at $40 per vehicle, and $4,350 in
trip fees for a total of $4,950. On a per mile basis,
Harnum’s cost per mile based upon its 1980 experience
within the State of Vermont would be 22.5 cents per
mile.
9. Due to the nature of the trucking industry, it is
impossible for foreign motor carriers to determine how
many or which of their motor trucks will be necessary
or available for deliveries within the State of Vermont
at any given time in the future. This is due to the
necessity for flexibility in routing of trucks and the lack
of advance notice as to where each individual truck will
be needed at any given time.
10. The terms of 23 V.S.A. 415, 415a, and 417 impose
a system of flat rates of payment triggered by entries
into the State. When costs incurred by foreign motor
carriers under those statutes are calculated on a per mile
basis for operations within the State, different carriers
pay very different costs per mile.
11. A survey conducted by Plaintiff, American Truck-
ing Associations, Inc., of foreign motor carriers presently
operating within the State of Vermont pursuant to 23
V.S.A. 415 indicates that the cost per mile ranges from
a high of $9.70 a mile to a low of 3.6 cents a mile. This
computation also assumes the payment of the $15 fee
under 23 V.S.A. 417 for each trip into the State. The
application of the $25 fee provided for under 23 V.S.A.
417 results in equally divergent, higher costs per mile for
individual foreign motor carriers.
12. The lowest average mileage per trip into Vermont
for any of the foreign carriers surveyed was by Twilight
Color Chemical which entered the State 38 times in 1980,
with a total mileage of 150 miles, for an average of 3.9
miles per trip. The highest average mileage per trip into
Vermont for any of the foreign carriers surveyed was by
73a
Everett Prescott, Incorporated which averaged nearly
450 miles per trip during 1980.
13. Since Vermont registered motor trucks do not pay
fees set forth in 23 V.S.A. 415, 415a and 417, certain
foreign motor carriers would in fact save in their costs
of operation if they were to register some or all of their
motor vehicles in the State of Vermont.
14. All of the United States jurisdictions impose regis-
tration licensure on the domiciliary motor trucks. It is
thus a fact that virtually all motor trucks pass freely, as
far as compliance with registration requirements is con-
cerned, in interstate commerce throughout the nation if
they have complied with the registration requirements
of their state of domicile.
15. Wear and tear on any given portion of a highway
is in direct proportion to the weight of the vehicle.
Trucks of the plaintiff class impose significant wear and
tear annually on Vermont highways. Vermont spends a
significant portion of its available revenues annually in
the repair of its highway system.
16. 23 V.S.A. 419, which was repealed pursuant to
House Bill 248, effective July 1, 1981, authorized the
Commissioner of Motor Vehicles to enter into reciprocal
agreements with appropriate officials from other jurisdic-
tions, excepting motor carriers from those jurisdictions
from all or any portion of the fees described in 23 V.S.A.
415, 415a and 417, if such other jurisdictions exempted
Vermont base-plated motor trucks from the payment of
all or a portion of highway use fees imposed by such
jurisdictions. At the time of repeal, such agreements
were in force with 13 other States and the District of
Columbia. As a practical result of the repeal of said
statute, Defendant Conway cancelled nearly all existing
reciprocal agreements as of June 1, 1981.
17. In the absence of reciprocity, Vermont registered
trucks with gross weight in excess of 18,000 pounds pay
T4a
substantial highway user fees in numerous other states.
In some states, such as New Hampshire and New Jersey,
these taxes take the form of “counterpart” or “retalia-
tory” fees identical to the entry fees imposed upon for-
eign trucks using Vermont highways.
18. Trucks weighing in excess of 18,000 pounds cause
considerably more wear and tear on highways than
smaller vehicles and a large proportion of highway main-
tenance costs is attributable to usage by such vehicles.
19. During the years 1978 and 1980, trucks weighing
in excess of 18,000 pounds gross weight constituted ap-
proximately 9.89 percent of the total traffic on Vermont
highways and during the year 1979 constituted approxi-
mately 6 percent of such total traffic.
20. During the same years (1978, 1979 and 1980),
approximately 53.9 percent of the trucks weighing over
18,000 pounds gross weight using Vermont highways
were registered in Vermont and approximately 46.1 per-
cent of such trucks were registered in other states or
Canada.
21. In the years 1978 and 1980, 61.9 percent of “trac-
tor semi-trailers” using Vermont highways were regis-
tered in other states or Canada and 38.1 percent were
registered in Vermont.
22. Under the new entry fee system, trucks weighing
in excess of 18,000 pounds -gross weight registered in
other states or Canada will in fiscal year 1982 pay ap-
proximately $7,500,000 into the “Transportation Fund”
for construction and maintenance of Vermont highways.
23. Trucks weighing in excess of 18,000 pounds gross
weight registered in Vermont will in fiscal year 1982 pay
registration fees and purchase and use taxes of approxi-
mately $7,800,000 into the “Transportation Fund” for
construction and maintenance of Vermont highways.
75a
24. In fiscal year 1981, trucks weighing in excess of
18,000 pounds gross weight registered in Vermont paid
$7,500,000 and such trucks registered in other states or
Canada paid $2,700,000 into the “Transportation Fund”.
25. Vermont State highways cost an average of
$6,447.90 per mile to maintain in fiscal year 1981, for
a total of approximately $16,887,000. (See Plaintiff’s
Exhibit 6 for total mileage of highways maintained by
the State. )
26. Highway user fees charged to trucks registered
other than in Vermont under the new entry fee system
are not excessive in relation to the road privileges
granted.
27. There is no evidence that the user fees paid per
mile or per pound of gross weight by foreign vehicles
for use of Vermont highways are higher than such fees
paid by Vermont registered vehicles through registration
fees and the vehicle purchase and use tax.
Conclusions of Law
The Court will first address Plaintiff’s primary con-
tention that the Vermont truck permit system for ve-
hicles used in interstate commerce violates the Commerce
Clause of the United States Constitution.
Complete Auto Transit, Inc., v. Brady, 480 U.S. 274,
279 (1977), holds that a State tax on interstate com-
merce will be sustained
éé
.
. when the tax is applied to an activity with
a substantial nexus with the taxing State, is fairly
apportioned, does not discriminate against interstate
commerce, and is fairly related to the services pro-
vided by the State.”
Plaintiffs take the position that the entry fee system
discriminates against trucks registered outside of Ver-
mont and that the fees are not fairly related to the serv-
76a
ices provided by Vermont. No claim is made that Plain-
tiffs activities have an insufficient nexus with Vermont or
that the entry fees are not fairly apportioned to activities
within Vermont.
We conclude that the entry fees are not discriminatory
since they form part of a single structure of user fees
for Vermont roads and that the per entry measurement
fairly relates the total fees paid to services provided to
trucks registered in other states and Canada.
The Commerce Clause does not require that taxes or
user fees be imposed upon interstate commerce in exactly
the same form as taxes or user fees imposed upon domestic
activities if the fees levied on interstate commerce are
“compensatory” for taxes or fees levied on a similar event
as a domestic tax or fee and there is substantial equality
of treatment between local and interstate commerce. See
Maryland v. Louisiana, 49 U.S.L.W. 4562, 4571 (1981) ;
H{e|nneford v. Silas Mason Co., 300 U.S. 577 (1987) ;
Alaska v. Arctic Maid, 366 U.S. 199 (1961).
Trucks domiciled in Vermont are required to pay sub-
stantial registration fees based upon weight and must
also pay a purchase and use tax based upon purchase
price, both paid into the “Transportation Fund”. See
Subchapter 2, Chapter 7 of Title 23 and 82-V.S.A. 8901
et seq. Subchapter 3, Chapter of Title 23 imposes entry
or trip fees upon trucks registered in other states or
Canada. There is no showing in this case that the amount
of revenue collected from foreign trucks under the Ver-
mont scheme is significantly disproportionate to that col-
lected from Vermont registered trucks in terms of miles
travelled, fuel usage or any other measure.
Plaintiffs argue that the user fees for foreign trucks
constitute an additional discriminatory tax on them be-
cause they must also pay base registration fees in their
State of domicile. This contention ignores the fact that
Vermont registered trucks—which no longer have reci-
77a
procity in other states due to the repeal of 23 V.S.A.
§ 419—must similarly pay so-called “third tier” user fees
in other states. The desirability of reciprocity is a legisla-
tive rather than a judicial issue. So-called “third tier”
fees over and above base registration fees and fuel taxes,
although severely criticized by Plaintiff Association as an
unwise exercise of legislative discretion, have long been
held constitutional. See, e.g., B & L Motor Freight, Inc.
v. Heymann, 293 A.2d 711 (A.J. 1972).
We thus conclude that the Vermont truck permit fee
system is a compensatory tax which does not discriminate
against interstate commerce.
Plaintiffs’ second argument under the Complete Auto
Transit rule is that the trip fees collected by Vermont
under Subchapter 3 are not fairly related to services pro-
vided by Vermont. The issue here is whether the Com-
merce Clause requires road usage fees to be computed in
accordance with mileage or fuel use or whether a flat fee
per trip is constitutionally permissible.
No case has interpreted the constitutionality of non-
mileage related fees since the decision in Commonwealth
Edison Co. v. State of Montana, 49 U.S.L.W. 4957 (July
1981) which held that the “measure of the tax must be
reasonably related to the extent of the contact”. 49
U.S.L.W. 4962. However, prior cases more closely on
point have clearly held that the measure of the contact
need not be precise and exact, and that a flat fee based
upon weight or on the value of a vehicle is constitu-
tionaliy permissible unless the total collected from all in-
terstate users is proven to be excessive in relation to the
road privileges granted. See Capital Greyhound Lines v.
Brice, 339 U.S. 542 (1950); Bode v. Barrett, 106 N.E.
2d 521, 531-532 (Ill. 1952), aff’d, 344 U.S. 583 (1953).
In view of the strong presumption in favor of con-
stitutionality and the fact that the ratio of total highway
user fees paid by foreign trucks weighing in excess of
78a
18,000 pounds gross weight under the new system to the
total cost of maintaining Vermont highways closely ap-
proximates the ratio of usage of Vermont highways by
such foreign trucks to the total usage by all such trucks,
we conclude that the per entry measurement meets the
reasonably related test of Complete Auto Transit. This
conclusion is further supported by the apparent holding
of Commonwealth Edison Co., supra, 4962, that a Court
need not make a detailed factual inquiry into the rela-
tionship between revenues generated by a tax and costs
incurred on account of the taxed activity and that the
only issue under the fourth prong of the Complete Auto
Transit test is whether the measure of the tax on its
face bears any relationship to the amount of activity
within the taxing State. In this case, the entry fee
system is clearly proportional to activities by interstate
carriers within the State, although not as precisely pro-
portional as a mileage or fuel use tax.
We now turn to Plaintiffs’ contention that the entry
fee system for trucks based in other states violates the
Equal Protection Clause and the Privileges and Immuni-
ties Clause of the United States Constitution (§ 1 of the
Fourteenth Amendment and Clause 3, §8 of Article I)
and the Proportional Contribution Clause of the Vermont
Constitution (Chapter 1, Article 9).
The basic argument is that measurement of the road
use tax by number of entries rather than a flat fee based
upon weight or purchase cost as in the case of Vermont
based trucks is a discriminatory and irrational classifica-
tion. We disagree. The State claims that the purpose for
the statutory distinction is to make road usage fees pay-
able by foreign trucks more proportional to their actual
usage of Vermont highways. We find this to be a reason-
able and non-arbitrary distinction based upon the differ-
ence in level of usage of Vermont highways between in-
dividual Vermont-domiciled trucks and individual foreign
trucks. See Vermont Motor Inns, Inc. v. Town of Hart-
ford, 134 Vt. 52 (1975).
79a
Plaintiffs also contend that the entry fees are void
pursuant to the Supremacy Clause of the United States
Constitution (Clause 2 of Article VI). The short answer
to this argument is that 49 USC 11506, cited by Plain-
tiffs as authority for the proposition that Federal law
has pre-empted at least the enforcement provisions of the
Vermont entry fee system, covers only “State registration
requirements” (emphasis supplied) and by its own terms
does not apply to the highway use and trip permits re-
quired under 23 V.S.A. §§ 415, 415a and 417.
Judgment Order
It is hereby ordered and adjudged that Plaintiffs’ ac-
tion is dismissed with prejudice and that Defendants re-
cover of Plaintiffs their costs of action.
Dated this 1st day of January, 1982.
/s/ Edwin H. Amidon, Jr.
/s/ Patricia D. Jones
80a
APPENDIX J
STATE OF VERMONT )
) ss.
WASHINGTON COUNTY )
WASHINGTON SUPERIOR COURT
Docket No. S-217-81
AMERICAN TRUCKING ASSOCIATIONS, et al.
vs.
WILLIAM CONWAY, Vermont Commissioner of
Motor Vehicles, et al.
ORDER
This cause came on for hearing on June 3, 1/981, on
Plaintiffs’ Application for Temporary Restraining Or-
der. Ralph Foote, Esquire and Robert Moyer, Esquire
represented the Plaintiffs and Robert Schwartz, Esquire
represented the Defendants.
Based upon review of the pleadings and the evidence
at the hearing, the Plaintiffs’ Application for Temporary
Restraining Order is hereby DENIED.
The Court concludes that the Plaintiffs have raised
sufficiently serious issues relating to the constitutionality
of the subject law as to make them a fair ground for
litigation.
However, the Court finds that no irreparable injury
will occur to Plaintiffs should the new fee system be per-
mitted to go into effect. Defendants’ records will permit
any excess fees wrongfully collected to be exactly de-
termined and speedily refunded to specific Plaintiffs
8la
should they prevail on the merits. Also, issues as to
lack of adequate notice of the reciprocity cancellations
can be raised in any individual prosecutions which may
occur as the result of driving unregistered vehicles dur-
ing the next few weeks.
This cause is hereby advanced for early trial on the
merits during the month of July, 1981.
Dated at Montpelier, Vermont this 4th day of June,
1981.
/s/ Edwin H. Amidon, Jr.
EDWIN H. AMIDON, JR.
Presiding Judge
82a
APPENDIX K
UNITED STATES DISTRICT COURT
D. VERMONT
Civ. A. No. 81-155
AMERICAN TRUCKING ASSOCIATIONS, INC., INTERNATIONAL
TRANSPORT, INC., and G. H. HARNUM, INC., Individ-
ually and on behalf of all others similarly situated
Vv.
WILLIAM CONWAY, Vermont Commissioner of Motor Ve-
hicles, PAUL PHILBROOK, Vermont Commissioner of
Public Safety, and RICHARD SNELLING, Governor of the
State of Vermont, Each individually and in their of-
ficial capacities
May 29, 1981
MEMORANDUM OF DECISION
HOLDEN, Chief Judge.
Plaintiffs bring this action seeking declaratory, injunc-
tive and monetary relief from recent amendments to Ver-
mont statutes requiring the purchase of permits for
interstate motor carrier vehicles registered out of state.
The new amendments greatly increase the cost of the
permits and remove exemptions for vehicles registered in
other jurisdictions having a reciprocal fee waiver agree-
ment with Vermont.
In considerable haste and with a strong sense of ur-
gency, plaintiffs American Trucking Associations, Inc.,
International Transport, Inc., and G. H. Harnum, Inc.,
83a
as individuals and representatives of a class of inter-
state motor carriers, on May 26, 1981 invoked the court’s
jurisdiction to obtain a temporary restraining order and
preliminary injunction enjoining the defendant Conway,
the Commissioner of Motor Vehicles for the State of
Vermont, from assessing or collecting increased fees im-
posed by the enactment of the Vermont General Assem-
bly of House Bill 248 which amended the fee levels pre-
viously set by 23 V.S.A. §§ 415, 415a and 417. Further
equitable relief is sought to restrain the defendant Con-
way from terminating the reciprocal agreements with
his counterparts in other states which had the effect of
waiving the registration and license permits applicable to
foreign registered motor truck carriers, as provided in
23 V.S.A. § 419. According to the complaint, the re-
cision of the reciprocal agreements will become effective
June 1, 1981, unless interdicted by injunctive relief
emanating from this court prior to the effective date.
Upon consideration of the evidence and arguments pre-
sented at an expedited hearing May 28, 1981, the court
finds there is a lion in the path of the equitable relief
which the plaintiffs seek in this court. The barrier ap-
pears by way of the Tax Injunction Act of 1937, 50 Stat.
738, 28 U.S.C. § 1841, which provides:
The district courts shall not enjoin, suspend, or re-
strain the assessment, levy or collection of any tax
under State law where a plain, speedy and efficient
remedy may be had in the courts of such State.
The Tax Injunction Act applies if the permit fees
assessed in 23 V.S.A. §§ 415, 415a, and 417 constitute a
tax within the meaning of Section 1341. This question
is one of statutory construction, and is governed by
federal law. The United States District Court for the
District of Connecticut recently considered the “tax” ques-
tion in regard to a similar fee assessed by the State of
Connecticut. American Trucking Association[s] v. O’Neill,
No. 81-267, slip op. at 3-7 (filed May 6, 1981). The
84a
court found that the regulatory activities necessary to
administer the registration statute could be funded for
less than one percent of the revenue that would be gen-
erated from a $40.00 fee. Id. at 6. The Vermont fees,
which are at least $40.00 per truck, must likewise ex-
ceed the administrative costs of the registration program.
Moreover, the other indicia of a “tax,’’ which include the
earmarking of the collected fees for a general state fund,
and the intent of the legislature to raise revenue, are
present in the Vermont statute. The court concludes that
the permit fees are a “tax” within the meaning of the
Tax Injunction Act. This preliminary finding is based
upon the papers submitted and the testimonial evidence
adduced at the hearing on the motion for a temporary
restraining order. The plaintiffs have simply failed to
show that the permit fees have any other purpose than
the generation of revenue for the State of Vermont.
The remaining question for resolution is whether the
Vermont state courts provide plaintiffs with a “plain,
speedy, and efficient remedy” to challenge the constitu-
tionality of the tax The legislative history of the Act
indicates that this language is intended to guarantee “a
full hearing and judicial determination of the contro-
versy.” Rosewell v. LaSalle National Bank, —— U.S.
. , 101 S.Ct. 1221, 1229, 67 L.Ed.2d 464 (1981)
(citing 81 Cong. Rec. 1416). “The statute has its roots
in equity practice, in principles of federalism, and in
recognition of the imperative need of a State to ad-
minister its own fiscal operations.” Tully v. Griffin, Inc.,
429 U.S. 68, 73, 97 S.Ct. 219, 222, 50 L.Ed.2d 227
(1976). As a result, if the state court system provides
an adequate and certain remedy, the federal courts are
barred from interfering.
Plaintiffs do not raise any issue as to the speed with
which a remedy may be obtained in the state court sys-
tem. Plaintiffs also concede that both declaratory and
injunctive relief are available in the state system. Plain-
85a
tiffs do, however, vigorously contest the adequacy and
certainty of this remedy.
The United States Supreme Court has recently con-
sidered whether the availability of declaratory and in-
junctive relief in a state court system constitutes a cer-
tain (plain) remedy. Tully v. Griffin, Inc., supra. In
Tully, the court held that the existence of New York
case law establishing a right to preliminary relief in
declaratory actions attacking the constitutionality of tax
statutes provided a “plain” remedy. Id. at 76, 97 S.Ct.
at 224.
The courts of Vermont have the power to grant in-
junctive and declaratory relief at an early stalgle of a
controversy concerning a tax claim to be unlawfully im-
posed. Gifford Memorial Hospital v. Town of Randolph,
119 Vt. 66, 70, 118 A.2d 480 (1955). Beebe v. Rupert,
114 Vt. 172, 41 A.2d 149 (1945). See also, Wheeler v.
State, 127 Vt. 361, 249 A.2d 887 (1969) appeal dismissed
396 U.S. 4, 90 S.Ct. 24, 24 L.Ed.2d 4, reh. denied (1969).
Consequently, the court concludes a plain and certain
remedy exists in the Vermont state courts within the
meaning of 28 U.S.C. § 1341.
The remaining question is whether the state court
remedy is adequate. Some decisions have impliedly
equated this requirement with the requirement of an
“adequate” legal remedy which would preclude equitable
jurisdiction. See Great Lakes Dredge & Dock Co. v.
Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407
(1943) ; Hillsborough v. Cromwell, 326 U.S. 620, 66 S.Ct.
445, 90 L.Ed. 358 (1946). The court, however, does not
read these decisions to limit the operation of the Tax
Injunction Act to plaintiffs having a plain, speedy and
efficient remedy at law in the state courts. But cf. Amer-
ican Trucking Associations v. O’Neill, supra, slip op. at
8 (a state remedy cannot be deemed adequate unless the
state has provided a statutory right to recover tax pay-
ments). Such a construction ignores the congressional
86a
purposes underlying the Act. The Act is not merely an
expression of the concept of the rule that an adequate
legal remedy precludes equitable jurisdiction; it also
states firm principles of federalism. Tully v. Griffin, Inc.,
supra, 429 U.S. at 73, 97 S.Ct. at 222. To the same
effect is the more recent pronouncement by the Court
in Rosewell, supra, US. at ——, 101 S.Ct. at 1236.
These principles dictate that the federal court abstain
from granting equitable relief when the taxpayer can
resort to the state court for relief adequate and equivalent
to relief sought in the federal form. Tully v. Griffin, Inc.,
supra, 429 U.S. at 76, n. 8, 97 S.Ct. at 224 n. 8; Garrett
v. Bamford, 538 F.2d 63, 68 (3d Cir. 1976) (“If plain-
tiffs could bring this action in Pennsylvania courts of
equity, they would have an adequate remedy’’).
Plaintiffs conceded in oral argument that declaratory
and injunctive relief is available to them in the Vermont
state system, but expressed reservations regarding the
ability of a Vermont court to reimburse them for fees
illegally collected." An award of monetary reiief is
within the equitable powers of the Vermont courts. See
Thompson v. Smith, 119 Vt. 488, 510, 129 A.2d 638
(1957). The state courts can provide every kind of re-
1 Plaintiffs stated at «ral argument that the availability of a
refund of illegally collected permit fees is only available under
23 V.S.A. §328. This statute authorizes the commissioner of
motor vehicles to refund money erroneously paid into the state
treasury for registration of 4 motor vehicle. The court seed not
consider whether Section 328 provides a plain, speedy, and efficient
remedy within the meaning of the Tax Injunction Act, since the
court has concluded that other avenues of relief are available in
the Vermont Superior Courts. The court notes, however, that de-
fendant has submitted an affidavit indicating that relief under
this section is regularly granted by the commissioner. Further-
more, the court believes that a review of an adverse determination
by the commissioner would be available under the state administra-
tive procedure act, 3 V.S.A. § 801 et seg. In particular, Section 815
authorizes an appeal from any final decision of an agency to the
Vermont Supreme Court.
87a
lief available in this court. Accordingly, the court finds
that a plain, speedy and efficient remedy may be had in
the Vermont courts.
Plaintiffs also have advanced several theories in an
attempt to avert the application of the Tax Injunction
Act. These theories include a private attorney general
principle, and a statutory exception to the application of
the Act, pursuant to 49 U.S.C. § 11508a(c). Neither of
these theories is persuasive.
In summary, the court concludes that the Tax Injunc-
tion Act in the context of the record presented consti-
tutes a jurisdictional barrier which deprives the court of
jurisdiction to issue the temporary restraining order and
preliminary injunctive relief sought by the plaintiffs.
Hickmann v. Wujick, 488 F.2d 875, 876 (2d Cir. 1973).
Plaintiffs’ request for a temporary restraining order
and preliminary injunction under Fed.R.Civ.P. 65 is de-
nied. It is so ORDERED.
88a
APPENDIX L
Vt. Stat. Ann. tit. 28, § 367 (Supp. 1982), as amended
by 1981 (Adj. Sess.), No. 172, §3 (1982) (“Act 172”)
reads in pertinent part as follows:
The annual registration fee for truck-tractors and
motor trucks with a gross weight of 18,000 pounds
or over shall be $50.00 less than the fee computed
in accordance with this subsection.
Vt. Stat. Ann. tit. 28, § 415 (Supp. 1981), as amended
by 1981, No. 87, §18 (1981) (“Act 87”):
In addition to any other provision of law relating
to registration of motor vehicles, or fees paid there-
for, a person owing or operating a motor truck, as
defined in section 420 of this title, upon the highways
of the state, which is not registered in this state,
shall apply to the commissioner of motor vehicles for
a highway use permit for each such motor truck to
be so operated. Application shall be made upon a
form prescribed by such commissioner and shall set
forth such information as the commissioner may re-
quire. The application shall be accompanied by a
permit fee of $40.00 for each motor truck listed in
the application. The commissioner shall issue a per-
mit and an identification tag, plate or sticker for
each such motor truck, which tag, plate or sticker
shall be of such size and design and contain such
information as the commissioner shall prescribe. Any
such permit and tag, plate or sticker shall become
void on October 1 next following the date of issue.
Such permits shall be carried in the motor truck and
the tag, plate or sticker shall be affixed to said motor
truck and at all times be visible and legible. For
emergency purposes, the commissioner may by tele-
gram, identifying the motor truck, authorize its oper-
ation without the attachment of a tag, plate or
sticker for a period not to exceed seven days from
89a
the date of issue of the permit. The telegram must
be kept with the truck while being so operated.
The commissioner may issue a single trip permit,
authorizing operation for one trip into the state of
Vermont without the attachment of a tag, plate or
sticker for a period not to exceed seven days from
the date of issue of the permit. Single trip author-
ization must be kept with the truck while being so
operated. The total cost of the permit and trip shall
be $40.00 payable in advance.
Vt. Stat. Ann. tit. 23, § 415 (Supp. 1982), as amended
by Act 172:
(a) In addition to any other provision of law
relating to registration of motor trucks with a gross
weight of 18,000 pounds or over and powered by
gasoline or any other non-diesel fuel, or fees paid
therefor, a person owning or operating a motor truck
upon the highways of the state, whether or not reg-
istered in this state, shall apply to the commissioner
of motor vehicles for a non-diesel fuel user’s license
for each such motor truck to be so operated. Appli-
cation shall be made upon a form prescribed by such
commissioner and shall set forth such information
as the commissioner may require. The application
shall be accompanied by a license fee of $50.00 for
each motor truck listed in the application. The com-
missioner shall issue a license and an identification
tag, plate or sticker for each such motor truck, which
tag, plate or sticker shall be of such size and design
and contain such information as the commissioner
shall prescribe. Except as otherwise provided, any
such license and tag, plate or sticker shall become
void on October 1 next following the date of issue.
Such licenses shall be carried in the motor truck and
the tag, place or sticker shall be affixed to said motor
truck and at all times be visible and legible. For
emergency purposes, the commissioner may by tele-
90a
gram, identifying the motor truck, authorize its oper-
ation without the attachment of a tag, plate or
sticker for a period not to exceed twenty-one days
from the date of issue of the license. The telegram
must be kept with the truck while being so operated.
This section shall not apply to motor trucks owned
by federal, state, provincial or municipal govern-
ments.
(b) A person owning or operating a motor truck
as defined in subsection (a) of this section which
. is registered in this state and for which the fees
required under section 367 have been paid, shall not
be required to obtain the license or pay the fee as
required in subsection (a) until his next registration
renewal and annually thereafter.
(c) The commissioner may issue a single trip
license authorizing operation for the trip into the
state of Vermont without the attachment of a tag,
plate or sticker for a period not to exceed seven days
from the date of issue of the license. Single trip
authorization must be kept with the truck while
being so operated. The total cost of the license shall
be $50.00 payable in advance.
Vt. Stat. Ann. tit. 23, § 415, as amended by 1985 (Adj.
Sess.), No. 124, § 10 (1986) (“Act 124”):
(a) In addition to any other provision of law
relating to registration of motor trucks with a gross
weight of 18,000 pounds or over and powered by
gasoline or any other non-diesel fuel, or fees paid
therefor, a person owning or operating a motor truck
upon the highways of the state, whether or not
registered in this state, shall apply to the commis-
sioner of motor vehicles for a non-diesel fuel user’s
license for each such motor truck to be so operated.
Application sall be made upon a form prescribed by
such commissioner and shall set forth such informa-
9la
tion as the commissioner may require. The applica-
tion shall be accompanied by a license fee of $50.00
for each motor truck listed in the application. The _
commissioner shall issue a license and an identifica-
tion tag, plate or sticker for each such motor truck,
which tag, plate or sticker shall be of such size and
design and contain such information as the commis-
sioner shall prescribe. Except as otherwise provided,
any such license and tag, plate or sticker shall be-
come void on January 1 next following the date of
issue. Such licenses shall be carried in the motor
truck and the tag, plate or sticker shal! be affixed
to said motor truck and at all times be visible and
legible. For emergency purposes, the commissioner
may by telegram, identifying the motor truck, au-
thorize its operation without the attachment of a tag,
plate or sticker for a period not to exceed twenty-one
days from the date of issue of the license. The tele-
gram must be kept with the truck while being so op-
erated. This section shall not apply to motor trucks
owned by federal, state, provincial or municipal
governments.
(b) A person owning or operating a motor truck
as defined in subsection (a) of this section which
is registered in this state and for which the fees
required under section 367 have been paid, shall not
be required to obtain the license or pay the fee as
required in subsection (a) until his next registration
renewal and annually thereafter.
Vt. Stat. Ann. tit. 23, § 415a (Supp. 1981), as amended
by Act 87:
The commissioner may issue a single trip permit,
authorizing operation for one trip into the state of
Vermont without the attachment of a tag, plate or
sticker for a period not to exceed seven days from
the date of issue of the permit. Single trip author-
ization must be kept with the truck while being so
92a
operated. The total cost of the permit and trip shall
be $40.00 payable in advance.
Vt. Stat. Ann. tit. 23, §417 (Supp. 1981), as amended
by Act 87:
(a) In addition to the foreign truck registration
provided by sections 415-421 of this title, a person
operating a motor truck on the highways of this
state, which truck is registered in another state or
province, shall pay a fee of $15.00 for each entry
into the state. If more than one tax, fee or toll is im-
posed upon vehicle usage in another state, then there
shall be charged an additional $10.00 for each entry
into this state of any truck registered in the state
charging the additional tax, fee or toll.
(b) In the event that a person so operates a motor
truck on the highways of this state and fails to re-
port that operation in accordance with regulations
promulgated by the commissioner, the person shall
pay a fee of $40.00 for each unreported entry into
the state. The payment of the fee shall not pre-
clude the imposition of penalties provided for in sec-
tion 421 of this title.
Vt. Stat. Ann. tit. 23, § 417 (Supp. 1982), as amended
by Act 172:
(a) If a ton-mile tax, or a tax requiring quarterly
or monthly reporting is imposed on Vermont regis-
tered vehicles by another state in addition to that
state’s diesel fuel tax, then tere shall be charged
an additional $10.00 for each entry into this state of
any truck registered in the state charging the addi-
tional tax, fee or toll.
(b) In the event that a person so operates a motor
truck on the highways of this state and fails to re-
port that operation in accordance with regulations
98a
promulgated by the commissioner, the person shall
pay a fee of $40.00 for each unreported entry into
the state. The payment of the fee shall not preclude
the imposition of penalties provided for in section
421 of this title.
Vt. Stat. Ann. tit. 23, § 421 (Supp. 1985):
(a) It shall be unlawful for any person:
(1) to operate a motor truck subject to the pro-
visions of this chapter upon any public highway in
the state without first obtaining the license, emer-
gency telegram or single trip license and tag, plate
or marker required under section 415 of this title or
to so operate without carrying the license, emergency
telegram or single trip license and displaying the
tag, plate or marker if issued; or
(2) to violate any regulation issued by the com-
missioner pursuant to the authority granted here-
under; or
(3) to fail to file any return or report required
by said commissioner;
(4) to make a false return or fail to keep records
of operations as may be required by the commis-
sioner; or
(5) to operate a motor bus subject to the pro-
visions of this chapter upon any public highway in
the state without first obtaining the marker or single
trip permit required unuer section 422 of this title
or to so operate without displaying said marker or
without the single trip permit with the vehicle.
(b) Any person who violates any provision of sub-
section (a), upon first conviction shall be punishable
by a fine of not less than $100.00 or more than
$250.00; and upon a second or subsequent convic-
tion of a violation occurring within one year after a
94a
previous conviction of any provision of subsection
(a) by a fine of not less than $250.00 or more than
$500.00, or by imprisonment for not more than thirty
days, or both.
Vt. Stat. Ann. tit. 23, § 3007 (Supp. 1982), as amended
by Act 172:
(a) In addition to any other provision of law
relating to registration of motor vehicles, or fees
paid therefor, a person owning or operating upon
the highways of the state a motor truck, which is
registered in the state, using fuel as defined in sec-
tion 3002, shall, for each motor truck to be so oper-
ated, apply to the commissioner of motor vehicles
on or before July 1, 1982 for a diesel fuel user
license, which shall be renewed at the time of re-
newal of the truck’s registration. Application shall
be made upon a form prescribed by such commis-
sioner and shall set forth such information as the
commissioner may require. Only applications filed
at the time of the initial registration or renewal
of a registration shall be accompanied by a $50.00
annual license fee for each motor truck listed in
the application except that no fee shall be required
for motor trucks with a gross weight of less than
18,000 pounds.
(b) In addition to any other provision of law re-
lating to registration of motor vehicles, or fees paid
therefor, a person owning or operating upon the
highways of the state a motor truck using fuel,
which is not registered in this state, shall apply to
the commissioner of motor vehicles on or before De-
cember 1, 1982 for a diesel fuel user license for each
such motor truck to be so operated. Application shall
be made upon a form prese~ibed by such commis-
sioner and shall set forth such information as the
commissioner may require. Except for motor trucks
95a
with a gross weight of less than 18,000 pounds,
and vehicles licensed prior to December 1, 1982 un-
der section 415, the application for issuance of
initial and renewal licenses shall be accompanied
by a $50.00 license fee for each motor truck listed in
the application. The commissioner shall issue a
license and an identification tag, plate or sticker
for each such motor truck which tag, plate or sticker
shall be of such size and design and contain such
information as the commissioner shall prescribe. Any
such license and tag, plate or sticker shall become
void on October 1, 1983 and each October 1 there-
after. Such licenses shall be carried in the motor
vehicle and the tag, plate or sticker shall be affixed
to said motor vehicle and at all times be visible and
legible. For emergency purposes, the commisisoner
may by telegram, identifying the motor vehicle, au-
thorize its operation without the attachment of a tag,
plate or sticker for a veriod not to exceed twenty-one
days from the date of issue of the license. The tele-
gram must be kept with the vehicle while being so
operated.
(c) A person owning or operating a motor bus
upon the highways of the state, which is not reg-
istered in this state, shall apply to the commissioner
of motor vehicles for an identification marker as pro-
vided by section 422 of this title which shall be
conspicuously displayed on the motor bus while oper-
ated within the state. The owner or operator shal]
be required to file a report under the provisions of
section 3014 and pay the tax imposed by section
3003 under the provisions of section 3015.
(d) This section shall not apply to users obtain-
ing trip permits under section 3010 or 422(b) or to
users’ vehicles exempt from reporting requirements
under section 3014 or to users’ vehicles exempt from
taxation under subdivisions 3003(d)(3) and (5).
96a
Vt. Stat. Ann. tit. 23, § 3007, as amended by Act 124:
(a) In addiiton to any other provision of law
relating to registration of motor vehicles, or fees
paid therefor, a person owning or operating upon
the highways of the state a motor truck, which is
registered in the state, using fuel as defined in sec-
tion 3002, shall, for each motor truck to be so oper-
ated, apply to the commissioner of motor vehicles for
a diesel fuel user license, which shall be renewed
at the time of renewal of the truck’s registration.
Application shall be made upon a form prescribed
by such commissioner and shall set forth such infor-
mation as the commissioner may require. Applica-
tions filed at the time of the initial registration or
renewal of a registration shall be accompanied by a
$50.00 annual license fee for each motor truck listed
in the application except that no fee shall be re-
quired for motor trucks with a gross weight of less
than 18,000 pounds.
(b) In addition to any other provision of law
relating to registration of motor vehicles, or fees
_ paid therefor, a person owning or operating upon
the highways of the state a motor truck using fuel,
shall apply to the commissioner of motor vehicles
for a diesel fuel user license for each such motor
truck to be so operated. Application shall be made
upon a form prescribed by such commissioner and
shall set forth such information as the commissioner
may require. Except for motor trucks with a gross
weight of less than 18,000 pounds, and vehicles
licensed under section 415, the application for issu-
ance of initial and renewal licenses shall be ac-
companied by a $50.00 license fee for each motor
truck listed in the application. The commisisoner
shall issue a license and an identification tag, plate
or sticker for each such motor truck which tag, plate
97a
or sticker shall be of such size and design and con-
tain such information as the commissioner shall pre-
scribe. Any such license and tag, plate or sticker
shall become vaid on eh January 1 thereafter.
Such licenses shall be carried in the motor vehicle
and the tag, plate or sticker shall be affixed to said
motor vehicle and at all times be visible and legible.
For emergency purposes, the commissioner may by
telegram, identifying the motor vehicle, authorize
its operation without the attachment of a tag, plate
or sticker for a period not to exceed twenty-one
days from the date of issue of the license. The tele-
gram must be kept with the vehicle while being so
operated.
(c) A person owning or operating a motor bus
upon the highways of the state, which is not regis-
tered in this state, shall apply to the commissioner
of motor vehicles for an identification marker as
provided by section 422 of this title which shall be
conspicuously displayed on the motor bus while operat-
ing within the state. The owner or operator shall
be required to file a report under the provisions of
section 3014 and pay the tax imposed by section
3003 under the provisions of section 3015.
(d) This section shall not apply to users obtaining
trip permits under section 422(b) or to users’ ve-
hicles exempt from reporting requirements under
section 3014 or to users’ vehicles exempt from tax-
ation under subdivisions 3003(d)(3) and (5).
Vt. Stat. Ann. tit. 28, § 3010 (Supp. 1982), as amended
by Act 172:
(a) An unlicensed user may obtain a single trip
permit which shall be good for one motor truck for a
period not to exceed seven consecutive days begin-
ning and ending on the dates specified on the face
of the permit. The fee for the permit for motor
98a
trucks with a gross weight of 18,000 pounds or over
shall be $50.00. Fees for trip permits shall be in
lieu of the tax otherwise payable by a user and no
report under the provisions of section 3014 shall be
required with respect to such motor vehicles. Single
trip authorizations shall be kept with the vehicle
while so being operated.
(b) Whenever the commissioner is satisfied that
unforseen or uncertain circumstances have arisen
which requires a user to operate in this state a motor
truck for which no identification marker has been
obtained, and if the commissioner is satisfied that
prohibition of such operation would cause undue hard-
ship, he may provide the user with temporary author-
ization for the operation of such motor truck pend-
ing payment of the license fee as required by s
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