# Appendix — American Trucking Assns. v. Conway > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2203%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 483 U.S. 1019 ## Text 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 la 13a 15a 22a 24a 3la 34a 65a 70a 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, eb nanhcaiatgcrian Acad Ram, nt ae Pehla des gD hl Ait etl el a FP tt a aia ho dH eh Rt tage Baal. Cg eae Cee eee ee Oe Sy ee ee eed 0) Set WRI ACAI ISLA LT [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 | Ta 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 ANRC NNR ep cae tpt PRIETO x Y ‘i ad ? 7 < 2 . y ra 2 2 e ; x + WI 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2203%3A2. Public record. Not legal advice.