
    Common Pleas Court of Montgomery County.
    State ex rel Frank Tejan et al v. Jos. E. Lutz et al.
    Decided January 22, 1934.
    
      
      Harry N. Routzohn and Norman Routzohn, for relators.
    
      Edward E. Duncan, ass’t. pros, atty., and John K.. Evans, ass’t. att’y. gen’l, for respondents.
   Douglass, J.

These cases involve the Motor Vehicle law and are directly concerned with the matter of registration and licenses issued under that law. The relators are owners and operators of trucks of various designs, and filed petitions in this court seeking a writ of mandamus against Joseph A. Lutz, as Deputy Registrar of Motor Vehicles in Montgomery county, directing him to accept the applications, register the trucks, and issue licenses thereon for the year 1934.

The allegations of the petition, in the case of Frank Tejan, which is typical of the petitions of the other relators, are to the effect that he is the owner of a motor vehicle, classified as a truck, and used by him as such; that such truck was licensed for the year 1933; that on December 26, 1933, application for state license to operate the truck for the year 1934 was presented to the defendant; that said application was duly subscribed and sworn to by the relator; that the said application, executed in triplicate, was presented to the defendant at his office in the Courthouse of Montgomery county, and that accompanying it was a certificate of truck registration issued for the year 1933, and the bill of sale for said truck, bearing the filing marks of the clerk of the Common Pleas Court, showing said bill of sale to have been properly filed.

The petition then states:

“Said application set forth the description required by law by stating the name of the manufacturer of said truck, the factory number of said truck, the year’s model thereof, the engine number, the motive power, and the weight of said truck fully equipped as represented by the manufacturer, the name, and business address of the owner, the district of registration, that said truck was a used vehicle, the date of the purchase, and that the fees for the year 1933 had been previously paid.” relator to set forth in his said application the actual weight of said truck including chassis and equipment as used in relator’s business, said actual weight of chassis and equipment being determined by weighing on a standard scale, relator failed and refused to supply said weights requested, and by reason of'which failure and refusal this defendant refused to accept and register said application.”

The relator then alleges that he tendered in lawful money to the Deputy Registrar “the fees required by law and based upon the weight of the said vehicle fully equipped as represented by the manufacturer, five thousand seven húndred and eighty pounds (5780), to-wit: the sum of

seventy-one dollars and sixty-five cents, fifteen cents being required for filing expense; that notwithstanding the presentation of said application for license as aforesaid and the tender of the requisite fees aforesaid, defendant refused to accept said application, refused to register the same, and refused to deliver said requested license.”

To this petition various demurrers and motions were directed, which were passed upon by the court and are a matter of record in the case. The defendant filed an answer to the petition containing the following allegation:

“Defendant for further answer and in justification of his refusal to accept relator’s application specifically denies that said application set forth the gross weight of said truck fully equipped as represented by the manufacturer, but says that the weight set forth was in fact the chassisi weight without and exclusive of the equipment of same; that when defendant advised and requested

The answer further alleges that the equipment, for which the relator refused to supply the weight, was of a substantial nature, designed and added to the motor vehicle for the purposes set forth in sub-section six of Section 6290, General Code, and was used over the public roads and streets, and because of its weight, taken in conjunction with speed and wheel tread, placed an additional, undue and damaging burden upon the public ways of the state. The answer further alleges that the relator was not authorized to, and did not issue certificates of registration and assign distinctive numbers and deliver number plates of motor trucks, but that such was done by the Registrar of Motor Vehicles under Section 6298, General Code.

The case went to trial upon the issues presented by these pleadings. Since the same law questions were involved in the other five cases, they were consolidated with the instant case for trial. The facts in reference to the six relators are differentiated only by the type of trucks used. The record discloses a form used by the Registrar and Deputy Registrar pursuant to provisions of Section 6294, General Code. This form provides various blank spaces for information regarding the residence of the applicant, make of the truck, engine, the year built, factory number, motive power, rated capacity, model, date of purchase, certificate of title, filing number, and various schedules indicating type of truck, type of body, use of vehicle.

The application contained the following phraseology: “Weight of truck fully equipped without load.” The space opposite this was filled out by the applicant with the weight at 5780 pounds. He was furnished an official weight slip which provided for a certificate of weight. The certificate contained the following certification:

“I do hereby certify that the weight as shown by the figures punched on the margin of this slip is the correct weight of the vehicle specified above fully equipped.”

On the bottom of this official weight slip the following insignia obtained:

“This slip must be completely filled out and must accompany every application for commercial vehicle registration.”

All the applicants, relators herein, presented the application form filled out to the extent indicated and, when requested to have the official weight slip executed, each applicant entered the name of the manufacturer of the truck for which he was seeking to secure a license in the space provided for “owner of scales,” but declined to have a weighmaster weigh the truck and sign the official weight slip.

Upon this refusal of the applicants to furnish a weight slip, as requested, the Deputy Registrar declined to accept the applications for registration or to issue licenses for the trucks. Whereupon, the relators filed petitions in this court seeking the order of the court as indicated.

These relators are members of a truck owners association, consisting of several hundred members, and these cases were selected by counsel for the relators as typical and illustrative of the type of motor trucks involved in this controversy.

The relator, Frank Tejan, operates a fleet of trucks and the truck involved here is a LeBlond-Schacht chassis, upon which-has been placed a cab purchased separately, and a tar tank, tar heater, tar pump, gasoline engine, and distributor for spreading heated tar. This tar tank and apparatus were built by a manufacturer other than the truck manufacturer, and may be removed without impairment of the chassis: it is used seasonally, the truck being ’used for other purposes in other parts of the year.

The weight represented on the application was 5780 pounds. The evidence shows that the stripped chassis weight of this truck was 4850 pounds; the relator testified that the truck with the cab, alone, actually weighed 5810 pounds: the tar tank and machinery weighed approximately 2500 pounds. The capacity of the tank is from six hundred to one thousand gallons capacity, when loaded; the weight of this tank, when filled with tar, varies according to the degree of heat at which the tar is being used, normally used at a weight of eight pounds per gallon.

The relator, Union Storage Company, operates a Ford truck with a body regularly attached and used thereon. This truck has a body equipment weighing from six hundred to seven hundred pounds.

Mark A. Pfeiffer is a farmer, but also conducts a feed grinding business. He has installed a Sears-Roebuck grinder and gasoline engine, taken from a Huber farm tractor, upon a Ford truck purchased second-handed; in connection with the engine which operates the grinder, there is a gasoline tank, water tank, and other accessories. This machinery is fastened to the truck frame with “U” bolts. The truck has never been used for any other purpose by this owner, and he goes from farm to farm, as a regular business, grinding feed on the farms of owners of the grain. This relator’s truck weighs three thousand pounds, and the equipment placed upon it weighs approximately three thousand pounds.

Relator, Weiler Welding Company, owns a second-handed White truck, upon which has been placed a cab bought from a different dealer, and also a platform body bought from another different dealer. A Lincoln welding machine, consisting of motor, gas tank and electric generator, was placed upon the truck body, and attached to it by four bolts. This truck is used for no other purpose except to transport this welding machine, which is used to do welding on the premises where the material or objects to be welded are located. The truck weighs 8200 pounds, and the equipment placed upon it, approximately 2800 pounds.

The relator, Ready Mixed Corporation, engages in the business of furnishing ready mixed concrete; owns a Le-Blond-Schacht truck upon which has been placed a concrete mixer, specially designed for placement upon trucks. This mixer is operated by a gasoline engine, and the mixing is partly done while the truck is traveling to the job, the machinery of the mixer operating and revolving the mixer drum while the truck is in motion. The mixer is fastened to the truck by four bolts, but is removable, although it has been used continuously on this truck. The weight of the truck is represented by the application as being 7850 pounds. The evidence indicates that the chassis weight stripped is 7400 pounds; that the gross weight of the vehicle fully equipped with the concrete mixer machinery is 13,800 pounds; the gross weight of the vehicle fully equipped, with a full load of concrete is 24,000 pounds.. The machinery, therefore, weighs 5450 pounds. The rated capacity of the truck is five to seven tons.

The relators, Muth Brothers, operate a White truck upon which has been placed a platform body and a cab; upon this body has been placed a hoisting winch operated by a gasoline engine, fastened with bolts to the frame. This equipment is estimated to weigh from 2500 to 4000 pounds.

The relators insisting that the weight of the trucks as represented by the manufacturer be accepted as the basis of the license, and refusing to have the trucks weighed, the Deputy Registrar, acting upon instructions of his superior officer, the State Registrar, refused registration. These instructions, as taken from the official Book of Instructions, furnished the Deputy Registrar by the State Registrar of Motor Vehicles for the year 1933-1934, introduced by the defendant as Defendant’s Exhibit 1, are in the following words:

“All truck and trailer license plates will be issued from the Bureau of Motor Vehicles. Applications and official weight slips for truck and trailer registration are being furnished all Deputy Registrars. These applications will be executed by the Deputies as usual but plates or certificates will not be issued. Receipts are being furnished to be given to applicants pending receipt of their license plates and certificates of registration.
“All truck and trailer applications accepted by Deputies will be listed on Form No. 12 and forwarded to the Bureau of Motor Vehicles together with the fees daily. (See Paragraph 34.) Licensé plates and certificates will be forwarded direct to the applicants;
“The bills of sale, sworn statement of ownership or certificate of title will be stamped with the license issued stamp. The weight as shown by the official weight slip will be entered therein. Each and every application for truck and trailer registration forwarded to the Bureau of Motor Vehicles must be Accompanied by an Official Weight Slip properly filled out and signed by the weighmaster.,
“F'orm No. 410 is being furnished all Deputies for the reporting-of additional weight added to commercial vehicles subsequent to the original purchase of license plates. New plates, if necessary, will be furnished by the Bureau.”

It is helpful at this point to notice the change in the administration of the license law effected by the Legislature in 1933, as provided by Sections 6290-1 to 6306-1, inclusive, General Code. Under provisions of Section 6290-1, the Bureau of Motor Vehicles is placed under the direction of a Registrar, appointed by the Director of Highways, and serving at the pleasure of the latter. (See also Sections 6291-1, 6294 and 6298.)

The Deputy Registrar is under the general direction of the State Registrar, who is authorized to give directions affecting the administration of the Motor Vehicle Act.

It has been contended here that the Deputy Registrar was solely authorized to issue these licenses, and that the Registrar was not authorized to provide that they should be issued from Columbus only. The court has considered this matter fully and has discussed, in the decisions on demurrers, the various aspects of the law presented, but is of the opinion that the Registrar has the authority, under the; law, if he sees fit, to effect a delivery of the motor truck licenses from Columbus.

Section 6291-1 is mandatory, but when considered in connection with its cognate sections, particularly Section 6298, it does not require the conclusion that the Registrar may not effect delivery of the license plates from Columbus, if such procedure enables a more effective administration.

The provisions of Section 6298 are- flexible enough to permit administration of the delivery of the plates, either through the Registrar or Deputy Registrar. The phraseology “in such manner as the Registrar may select” is comprehensive. This phrase precedes and modifies both the issue of the certificate and the delivery of the plates: the later phraseology “in person or at the post or express office” also modifies the delivery, and further indicates the permissive authority of the Registrar to determine the manner of delivery.

Considering these provisions, and further considering the evidence as to the purpose of the present system, the court concludes, that the Registrar is authorized under the law to maintain the present administrative' system. '

The court is of the opinion that local convenience is preferable to the present plan of delivery from Columbus, but it may be that the effort to standardize the interpretation and enforcement of the law is best advanced by centralization of control as to truck licenses. It may be observed that if an applicant- has completely complied with all requirements placed upon him by the law, and delivery of his license plates is delayed, through no default of his, but due to fault or unavoidable delay on the part of the Deputy Registrar or the Registrar, or both, the applicant, in the opinion of the court, could neither be prevented from operating his motor vehicle nor legally punished for its operation without license plates.

This, however, is a matter of policy, and it is not the function of the court to determine such matters nor substitute its preferences for the authority of the administrative official acting under the law.

When the state exercises its power to impose a license or privilege tax, its field is comprehensive, and legislation properly directed to the ends sought to be accomplished will not be rendered ineffective by the judiciary merely because of a difference of opinion as to the wisdom of the law.

The Deputy Registrar, being under the general direction of the Registrar, by virtue of Section 6290-1 and Section 6291-1, upon receiving lawful instructions from the Registrar, would be required to comply with the instructions; otherwise, in eighty-eight counties there might be as many different motor vehicle laws, and thus a failure of uniform operation would result in a fatal weakness of the law.

The law has set forth specifically what should be contained in the applications, and in order to render the administration uniform it is necessary that identical forms should be used generally throughout the state. Therefore, it is not conducive to efficient administration of the law to permit Deputy Registrars to make up forms usable only in their respective counties. This standardization of forms and procedure is a reasonable and necessary exercise of authority and discharge of duty incumbent on the Registrar. It was not the 'intention of the Legislature to create a Bureau of Motor Vehicles under direction of a State Registrar to administer this comprehensive law, and at the same time permit the Deputy Registrar, in the counties, to destroy the uniformity and effectiveness of its operation.

The state, having full power to regulate the operation of motor vehicles on its highways and to impose and exact a tax on such operation, it is indispensable that the law be uniformly interpreted and administered.

Adopting the language of the Supreme Court of Ohio in the case of Saviers v. Smith, 101 Ohio St., 132: “The requirement of and the payment of license fees is only a mode of imposing taxes.” Certainly, a tax of this nature, imposed on the operation of motor vehicles which traverse the state regardless of county lines, must be so administered as to insure equality of imposition and collection. To effect this end, the law should be liberally construed as to the method, its purposes.

However, since the decision in these cases will not depend on a determination of this aspect of the law, the court does not regard it necessary to discuss the matter further. It should be observed, however, that the decision rendered by the court on the original motion to dismiss and upon the demurrer to the petition for a defect of parties defendant are not contrary to the instant expression of opinion insofar as the law is involved. The development of facts by the trial has, however, afforded a more comprehensive basis for this decision than the motions and demurrers interposed.

The court having determined the question as to the proper parties defendant before evidence was offered, predicated its opinion upon the component statutory law, and the general law basic to issuance of a writ of mandamus, for the reasons epitomized by Chief Justice Marshall in the case of Marbury v. Madison, in the statement:

“It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing mandamus is to be determined.”

And as stated by the decision of the court in the case of McGannon v. State of Ohio, 23 C. C. (N. S.) 301:

“Where an official duty does not belong inherently to the office itself, but may be devolved upon some other officer to perform, it is ministerial and its performance may be required by mandamus.”

It now appears that the State Registrar has assumed the authority vested in him by the permissive provisions of Section 6298 so that the discharge of official duty in reference to registration and issuance of license involves and depends upon both the local Deputy Registrars and the State Registrar. This exercise of authority in such respect by the Registrar having been found legal, the court now holds that the Deputy Registrar is required to discharge his duties consistent with the exercise of lawful authority by the Registrar.

Instructions of the Registrar predicated upon the law and the administrative plan consistent therewith become legally binding upon the Deputy Registrar, and it is axiomatic that the local Deputy Registrar should not be ordered to act contrary to authorized and legal instructions of his superior officer. Butterworth v. U. S., 112 ,U. S., 50; 18 R. C. L., 117.

The court does not conclude that this position now applicable to the completed cases negatives the court’s conception as to the scope, effectiveness, and potential execution of the writ of mandamus when issued by the court, and does not lessen the authority of the court to employ its jurisdictional powers so as to render effectual its decisions, orders and commands. Since this aspect of the question is not immediately involved now before the court, it is unnecessary to announce an operative decision in regard to it.

Suffice it to say that the Deputy Registrar used the forms provided his office by the Registrar. The relators now raise the proposition that the Deputy Registrar has no discretion, whatever, and that when the application was furnished him, filled out and signed by the applicants, that he had no authority to require a weight slip. In order to determine this question, it is advisable to recur to the provisions of the law embraced in Section 6294.

Sub-paragraph one of this section provides that the description shall contain “the gross weight of the vehicle fully equipped.” It is obvious, therefore, that the description required by the law justified the Deputy Registrar in making a provision for recording the weight. It is contended, however, that Section 6294 provides, specifically, the conditions upon which an application may be rejected. It is provided:

“If such application is not in proper form, or if proper bills of sale or sworn statement of owner, or proper certificate thereof, or certificate of title or memorandum certificate does not accompany the application, or if all registration and transfer fees required by law for such motor vehicle for the preceding year, have not been paid, the license shall be refused.”

The paragraph immediately preceding this provides that the applicant shall furnish bills of sale or sworn statement of ownership, certificate or certificates of the clerk certifying that such bills of sale have been duly filed, or a certificate of title or memorandum certificate showing title. This paragraph does not contain any reference to a weight slip.

However, in considering the paragraph quoted supra, it is noted that the phrase “if such application is not in proper form” implies the authority of the Registrar to provide forms consistent with the law. Since sub-paragraph one of Section 6294 provides that the gross weight of the vehicle fully equipped should be included in the description, it follows as a natural corollary that some provision in reference to weight was reasonably contemplated as necessary in the application; the application containing the phrase “weight of truck fully equipped without load,” it is contemplated, therefore, that the Registrar or Deputy Registrar shall secure compliance with this section in any manner reasonable and proper, and provide for its ascertainment as a part of the application.

It is contended by the relators that since they proffered a weight in the application form, the Deputy Registrar was not authorized to require them to present a weight slip. If adopted, this interpretation would result in the Deputy Registrar being rendered utterly helpless in administering this provision of the law, except through absolute reliance upon the statement of the applicant as to the weight. The contention of the relators that the weight represented by the manufacturer should be accepted does not justify the assumption that the Deputy Registrar has no duty or authority in reference to the weight. The weight slip, in itself, is unimportant, and the basic objection is to the method of establishing the weight of the truck.

It is true that the Motor Vehicle Code contains a provision permitting criminal prosecution of any applicant making a false statement in the application for license, and the law further provides that every statement made in this application shall be considered a material statement. However, it should be borne in mind that Section 6294, reasonably interpreted, authorizes the Registrar to determine the form of the application, and carries with it the implication of right, as well as the duty, on the part of the Registrar, to protect the state from fraudulent representations. It should not be contended that he must be forced to accept weights, which, in his opinion, are incorrect and then rely upon prosecution under the section providing for punishment. The objection of the relators to the application form providing for designation of body structure is amply answered by paragraph numbered one of Section 6294, providing for a description. This section enumerates some details of 'this description, but does not prohibit other items of description reasonably connected with the purposes of the law.

This brings the court to a consideration of the duties of the Registrar and Deputy Registrar. It is contended that these duties are purely ministerial and that, therefore, no discretion can be involved in their discharge. While it is true that the duties are ministerial in that they involve acts required by the law, yet when the law specifically indicates a duty to be performed it does not thereby strip the official of authority to execute that duty in such manner as the spirit, purposes and efficient administration of the law require, provided that he does not, by such rulings and administrative procedure, create requirements contrary to the law: he is not permitted, under the guise of administering his official duties, to create additional law predicated solely on his judgment, even though advisable, desirable or even necessary.

If, however,thesei rules (and Administrative ¡requirements are consistent with the law, designed to carry into effect its provisions, reasonably necessary to its proper administration, and not contradictory to the provisions and purposes thereof, they should be regarded as valid and obligatory upon applicants for licenses.

It is plain that the law requires the motor vehicle weight to be established, and were there no other question involved the case would be extremely simple. The ground of controversy is more fundamental and involves questions as to the basis of weight computation. The relators contend that correct weights were given, that such weights were those represented by the manufacturer, and that the weights are those required by Section 6298 which provides in part:

“The weight of all motor vehicles, shall be the weight of the vehicle fully equipped as represented by the manufacturer, or as named in the shipping bill; provided, that if this be not known or is not the actual weight, the actual weight as determined on a standard scale' shall govern.

Before entering into an analysis of this vital provision of the law under consideration, a review of its legislative history is helpful.

The original Motor Vehicle legislation, found in 99 Ohio Laws, at page 538 passed May 9, 1908, contained, in Section 6294 the provision that the applicant • should furnish “a brief description of the vehicle to be registered, including the name of the manufacturer, the manufacturer’s number of the motor vehicle, if number there be, the character of the motor power, and the amount of such motor power stated in figures of horse-power.” It further provided for a registration fee of five dollars for gasoline or steam motor vehicles and a registration fee of three dollars for electric motor vehicles. Section 6294, as it is today, has been evolved from this paragraph of the original act. Nothing is contained in the original act distinguishing between classes of motor vehicles, such as trucks, passenger cars, etc. The act was regulatory and plainly an exercise of the police power of the state, and therefore provided that revenue derived from registration fees should be used by the Secretary of State to defray the expenses incident to its enforcement, and that any surplus therefrom should be paid into the state treasury.

The charge was, therefore, purely a license fee, and was not predicated upon an exercise of the sovereign power of taxation for revenue.

In 100 Ohio Laws, at page 72, under date of March 12, 1909, further motor vehicle legislation is recorded, retaining the same provisions previously obtaining in Section 6294. Subsequent minor amendments were adopted in 1913 and 1914.

In 108 Ohio Laws, at page 1078, part two, December 16, 1919, the laws was significantly amended. Section 6292 of this amended act provided that:

“Each commercial car, the same tax based on horse power, and in the same classifications as are herein provided for passenger cars, and in addition thereto twenty cents for each one hundred pounds gross weight of vehicle and load, or fractional part thereof.”

Section 6293 provided as follows:

“In determining the gross weight of vehicle and load, in the case of commercial cars designed and used for carrying passengers, the weight of passengers shall be computed at one hundred and twenty-five pounds for each passenger, according to the number of seats for adults actually provided, and such weight so computed added to the weight of the vehicle fully equipped. In determining the gross weight of vehicle and load in the case of motor trucks and trailers the manufacturer’s rated carrying capacity shall be added to the weight of the vehicle fully equipped.”

Section 6294 contained a provision that the description should include, in the case of commercial cars, “the gross weight of vehicle and load, computed according to the formula prescribed in this chapter.” The reference to a formula is to the formula set up in Section 6293.

In 109 Ohio Laws, at page 239, Section 6294 was amended, but still contained the phrase, “the gross weight of vehicle and load, computed according to the formula prescribed in this chapter.”

In 111 Ohio Laws, further amendments were made, including an amendment to Section 6293 which was modified to read:

“The weight of .all motor vehicles shall be the weight of the vehicle fully equipped as represented by the manufacturer or as named in the shipping bill, provided, that if this be not known or is not the actual weight, the actual weight as determined on a standard scale shall govern.”

Section 6292, which had previously contained the provisions as to the license tax, based upon the horse power, and a tax of twenty cents a hundred pounds gross weight of vehicle and load, was changed so as to cover only motorcycles and passenger cars, and Section 6292-1 was added to provide for the tax for commercial cars.

It is obvious that the term “commercial cars” is used rather ambiguously in these last several enactments. It is noticed, also, that the amendment to Section 6293 was fundamental. The old formula in reference to determining the gross weight of the vehicle and load in the case of motor trucks was stricken out entirely, and a new standard created to the effect that the weight of all motor vehicles should be the weight of the vehicle fully equipped as represented by the manufacturer. This change eliminated the distinctions which had originally obtained in Section 6293, prior to the amendment, as to commercial cars carrying passengers and the computation established therefor.

The next amendments, found in 114 Ohio Laws, at page 851, passed June 23, 1931, effected several changes in the law. Section 6294 still contained the phrase that in the description of the vehicle “the gross weight of the vehicle fully equipped, computed according to the formula prescribed in this chapter” should be given. These amendments involve, largely, the matter of the collection and distribution of fees, and are of scant assistance in determining the questions presented in this case. It was provided, however, in Section 6292/ that the fees, on commercial cars should be based upon the weight of the vehicle fully equipped.

The next changes made in the Motor Vehicle Act are found in 115 Ohio Laws, at page 271, and 115 Ohio Laws, at page 80, allocating the administration of the law to the Department of Highways. Several provisions of the former legislation were enlarged; Section 6292 was not changed in form; Section 6294 still contained the provision that in the description there should be stated “the gross weight of the vehicle fully equipped, computed according to the formula prescribed in this chapter.” Section 6293 remained unchanged.

It appears to be the conclusion of the relators that this legislative and the administrative history of this law indicates the intention of the Legislature to tax motor vehicles upon a weight basis determined solely by the manufacturers and determinable solely by reference to the representation made by such manufacturers as presented by the relators.

While it does not appear absolutely necessary to have recourse to administrative practices as an aid in interpreting this law, the relators and defendant have referred to these factual matters, and the court does not wish to ignore them. In support of their contention, the relators introduced a booklet published by the state of Ohio, through the Department of State and Bureau of Motor Vehicles, dated 1927-1928, being introduced as Plaintiff’s Exhibit “C”, bearing the title, “Schedule of Fees for Motor Vehicle Registration”, used by the Bureau of Motor Vehicles for several years, and by it furnished to the Deputy Registrars, as a reference book or guide in checking the accuracy of the weights given by applicants for licenses. This reference guide contains the manufacturer’s weight, and the relators, therefore, contend that since such weights, in reference to trucks, could not have been other than chassis weights, such was adopted as the basis of the license.

The evidence of the Chief Inspector of the Motor Vehicle Bureau was to the effect that during the entire period of his service with the bureau, approximately seven years, the policy has been to attempt to secure the correct weight of the vehicle fully equipped. The evidence of the defendant Deputy Registrar in this case was to the effect that prior to the instant license year when an application for license was presented, the practice of his office was to refer to the schedules of the reference guide supra and check the weight given by the applicant, particularly if such appeared erroneous. It is apparent, therefore, that this reference guide did, to a certain extent, determine the weights accepted in the office of the local Deputy Registrar, but, as will be seen by an examination of the exhibit, it appears that neither the State Registrar nor Commissioner of Vehicles, under the former law, ever sanctioned the interpretation now advanced by the relators. In the exhibit, supra, referred to as the Schedule of Weights and Fees, the preface is in these words:

“This schedule of fees is issued in the interest of all owners of motor vehicles in the state of Ohio and is for their information and for the guidance of deputy commissioners in determining the horse power and correct fee covering all applications for passenger car licenses.
“The information herein given has been compiled from official information furnished to the Bureau of Motor Vehicles by the manufacturers of the motor vehicles listed, and is, therefore correct.
“All commercial vehicles must be weighed on a standard scale and weight slip presented with application for license.
“Remember. This tax is based upon a motor vehicle fully equipped, all additional equipment put on after license has been issued is subject to an additional tax and same must be reported to the Commissioner of Motor Vehicles.
“Applicants are charged to use the utmost care to see that all commercial vehicles are correctly weighjed and weight slip presented with application to avoid delays in the issuance of license plates.
“Deputy Commissioners must require of each applicant all of the information called for on the application blanks.”

It is obvious from this instruction that the State Department at least construed the law to mean that the tax was based upon a motor vehicle fully equipped, and that all additional equipment put on after the license had been issued was subject to additional tax.

While the court is permitted to give proper weight to administrative practices in interpreting a law of ambiguous nature, it is not compelled to accept such practices as determinative of the questions presented, nor give undue weight to such contemporaneous construction. If the law clearly contradicts the practices obtaining, and if such are clearly contrary-to the spirit and purposes of the law, the court must reject them entirely. Illegal practices are illegal, regardless of the good faith of the administrator.

Local practices may not have been in conformity with official instructions, and it is contended by the defendant that the present system of centralization of control over truck licenses in the State Registrar’s office is designed to correct these practices. There is neither such certainty of official practices nor such uniformity as to justify very serious value to be attached to this aspect of the case, and when the practices fail to be consistent and promotive of the purposes of the law they can be of scant assistance to the court.

As explanatory of the meaning of the phrase, “fully equipped as represented by the manufacturer,” provided in Section 6293, considerable evidence has been adduced by the relators. It has been vigorously contended that the manufacturer does not sell bodies, and that, therefore, the terminology of Section 6293 refers to a fully equipped chassis; that a fully equipped chassis is, in fact, a truck, and that is was always intended that this should be the basic unit upon which computation of weight should be made.

It is contended by the relators that the Legislature must have known and recognized the practice obtaining amongst the manufacturers in reference to truck equipment, and that it must have legislated in view of the terminology employed in the trade. A study of the development of this section indicates to the court that it is entirely possible that this phraseology was designedly placed by interested parties in this section, upon the assumption that its interpretation would be responsive to the trade terminology employed by the manufacturers, and that thus the weight of motor trucks would be confined to the equipped chassis, but there is no evidence that the Legislature accepted this view or thus intended, to the extent now contended by the relators, to accomplish the results now sought by them,

The Legislature may or may not have been aware of the extent and nature of the terminology employed by the manufacturers, and may or may not have been aware of the significance of accepting the terminology so employed. The court is not confined to the assumption that such knowledge existed and influenced the Legislature, but is charged with a broader consideration of the history, conditions and purposes of the law, and is charged with the responsibility of interpreting both the letter and the spirit: it is not obligated to accept a narrow interpretation which might defeat the very purposes of the law, and render innocuous, unfair and inefficient, provisions which might otherwise be conducive to accomplishment of the purposes of the law.

Quoting from Sutherland on Statutory Construction, Volume II, page 694:

“The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to that intent. The intention of the Legislature, in enacting a law, is the law, itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of the statute when it leads away from the true intent and purpose of the Legislature and to conclusions inconsistent with the general purpose of the act.”

And, again, the same principle, announced by the court in the case of Manhatten v. Kaldenberg, 165 N. Y., 1:

“In construing statutes, the proper course is to start out .and follow the true intent of the Legislature and to adopt that sense which harmonizes best with the context and ■promotes in the fullest manner the apparent policy and objects of the Legislature.”

The relators contend that the weight of a vehicle fully equipped as represented by the manufacturer does not include body or cab. Aside from the serious doubt in the court’s mind as to the accuracy of this contention, it should be noted at the very beginning of this consideration of the case that Section 6293 does not, in any place, contain the word “chassis”; and that reference to such unit of motor vehicle construction does-not obtain in any of the provisions now under consideration. The section is predicated upon the phrase “weight of all motor vehicles.” It is plain, then, that the Legislature used the term “all motor vehicles” as an inclusive term, embracing trucks of every description, and did not intend that the provisions of Section 6293 should be narrowed down to mean the “weight of all chassis,” whether fully equippel or stripped. If the Legislature had meant chassis alone, it would have used the words “weight of the chassis;” or, if it preferred to use the words, “weight of motor vehicles,” in the first part of the sentence, it could have used, in the second clause, the defining provision, “shall be-the weight of the chassis fully equipped as represented by the manufacturer.” However, instead of using this definition confined to a “chassis,” it used the words “vehicle fully equipped.”

Were there nothing else available to throw light upon this question, a safe conclusion might be reached at this point, without excursions into evidence or speculations as to contingencies, for the term “motor vehicles” being repeated in the defining phrase, by the word “vehicle” is an insurmountable difficulty to the theory of interpretation advanced by the relators. As has been stated by the Supreme Court of the United States in the case of United States v. Goldenberg, 168 U. S., 103:

“The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator. It is true there are cases in which the letter of the statute is not deemed controlling, but the cases are few and exceptional, and only arise where there are cogent reasons for believing that the letter does not fully and accurately disclose the intent. No mere omission, no mere failure to provide' for contingencies, which it may seem wise to have specifically provided for, justify any judicial addition to the language of the statute.”

It must be obvious that the words “as represented by the manufacturer” qualify the .words “fully equipped,” and therefore, embrace all vehicles in every form as offered for sale by the manufacturers, and not just those sold in chassis form alone.

Therefore, it seems to the court to be an unusual stretch of imagination to assume that the Legislature meant the weight of the chassis fully equipped. The court is of the opinion that this contention is answered, not only by the written provisions of the law, but even by the evidence produced by the relators in the trial. Evidence on this point was presented through salesmen of several motor truck companies, but there was not available for the court evidence from a sufficiently large number of manufacturers, or from trained automotive engineers of any manufacturers, to properly enable the court to determine whether there is an absolute, inflexible, generally standardized and established practice, with accepted terminology obtaining amongst truck manufacturers in respect to the questions here presented.

The evidence of the relators on this point, however, was not contradicted by any evidence in behalf of the defendant, and the court is, therefore, analyzing now the evidence of the relators, which should be assumed naturally presents best their contentions.

Documentary evidence, consisting of catalogs, sales sheets and other data, was presented, including a copy of the Commercial Car Journal, which is marked as Plaintiff’s Exhibit 12, and which contains commercial truck specification tables. These tables list the weights, the different models of various motor trucks, and embrace the most generally known manufacturers.. It is noticed that two weights are given: the gross vehicle weight and the chassis weight stripped. On page 41 of this trade journal, it is stated that:

“Gross Vehicle Weight — Is chassis weight, plus body- and cab, plus payload. Gross vehicle weight given for a model is based on maximum recommended tire size and not on tires listed as standard equipment.”
“Chassis Weight Stripped — Includes gas, oil and water and all things included in chassis price. Does not include the weight of cab.”

From the comprehensive tables in this journal it is evident that “gross vehicle weight” includes the cab, body and payload. However, the “chassis weight stripped” seems to be a limited terminology which excludes the cab. It is scarcely to be contended, with any show of continuous consistency, that the Legislature knew, when it used the words “motor vehicle fully equipped as represented by the manufacturer” that the manufacturers considered a “motor vehicle fully equipped” as a “chassis equipped” or “chassis stripped.” If so, it would be an inexcusable neglect not to have so stated, and the court is not justified in such summary criticism of the law.

Further, evidence on this proposition is not of sufficient generality and stability to indicate that the words “motor vehicle” were synonymous with the word “chassis.” In fact, practically all the evidence indicates that by the word “chassis” the manufacturers do not mean a “vehicle fully equipped,” and there is no actual evidence to this effect.

The contention of the relators is to the effect that the manufacturer does not sell bodies and cabs: various manufacturers’ lists were entered of record as exhibits. There can be no unfairness in taking these exhibits at their face value, and a careful review of them indicates that there is a wide diversity of practice, and that many manufacturers do furnish cabs and complete lines of bodies.

The court is not able, from these exhibits, to say that the manufacturers, in referring to a “truck fully equipped,” all mean exactly the same, but the court is of the opinion that as a general rule amongst manufacturers, a “chassis fully equipped” means the chassis without the cab and body. The term “truck fully equipped” is not used by any of the manufacturers except on one sales sheet referring to a Ford truck. The detailed specifications set forth in this documentary evidence indicates that the chassis is considered fully equipped when it has standard equipment. This standard equipment varies somewhat amongst the manufacturers, possibly dependent on the desire to present an apparently better sales showing and excel competitors.

As an illustration, the court notices Plaintiff’s Exhibit 14, describing the Pierce-Arrow truck which offers a chassis fully equipped with standard equipment, as follows:

“Speedometer, engine temperature indicator, oil pressure gauge, ammeter, gasoline gauge, mounted on instrument board. Spare rim and tire carrier under rear of frame. Electric horn with horn button on steering column. Air filter and oil filter on engine. Full set of electric lights. Heavy duty battery. Rear tow hooks and front bumper. Auxiliary rear springs and dual rear tires. Full set tools and jack. All steel cowl, front fenders and steel running boards and shields.”

The standard equipment is largely the same in all the truck exhibits proffered the court, and it is safe to conclude that, generally speaking, standard equipment does not include cabs or bodies. Cabs are considered extras and bodies are considered extras.

On the other hand, from all the evidence, particularly the documentary evidence considered now by the court, the court is led to conclude that ¿ manufacturer does not call a truck completely equipped when it has neither body nor cab. It is in actuality then a “chassis fully equipped,” and this term, or the words “chassis stripped” constitute the sole reference to truck construction terminology applicable to the truck in a state not usable and not operated on the highways. There is not any escape from the plain fact that a truck chassis, even when equipped with standard equipment, is not a “truck fully equipped,” for the purchaser of such a chassis always goes to another manufacturer and gets him to finish the job, finish equipment of the truck with a cab and body so that the purchaser can actually use it; so that it will, in fact, be the fully equipped truck he must have in order to accommodate his purposes.

If this practice is as universal as contended, then this inescapable situation obtains: the purchaser buys all he can get or cares to get from the manufacturer of the truck and then he gets the rest of the motor vehicle equipment from a body manufacturer.

The court holds that the Legislature was not interested in the name, or the limited operations of the particular manufacturer, but that the Legislature was interested in the “motor vehicle fully equipped.” Unquestionably the law is concerned solely with the object to be taxed, and if it requires two manufacturers to complete the motor vehicle, that does not defeat the purpose of the law.

The discovery of the practice of manufacturers in selling the heavy trucks without cabs or bodies is not probative of the meaning of the phrase “fully equipped,” but rather tends to indicate that these manufacturers do not sell “motor vehicles fully equipped.” If and when they do, then the weight of such truck becomes an important matter for consideration and test by the terms of the proviso, which will be discussed later.

When they do not sell the truck fully equipped and some other manufacturer completes the construction, then in its entirety, it is a completely equipped truck — thus as it stands it is ready for operation on the highways .. The tax being a privilege tax, a tax on the operation of the truck, immediately attaches to its operation as it runs on the highways.

From a common sense viewpoint, a truck is not completely equipped, and is, in fact, not a complete truck, unless it is in an assembled condition, ready for service of some nature, on the roads and highways. It is obvious that it is not a complete truck, in the common acceptance of the terminology, if there remains to be placed on it a cab in which the driver may sit, and a body, in some form, upon which goods or merchandise are to be transported.

The Legislature may not have known what a “chassis fully equipped” or a “chassis stripped” is, but certainly it is not to be presumed that it did not know what a motor vehicle is, and, undoubtedly, it meant to use the term as the public uses it, in a common sense meaning.

The court reiterates that the manufacturers do not use the terminology “truck fully equipped,” and that in every instance of the Car Journal weight ratings, covering sixty-seven makes, and hundreds of models of trucks, the weights given are the gross vehicle weight, which is the weight of the truck completely equipped with body and also carrying the payload, and the other weight, as indicated swpra, the chassis weight stripped.

The Legislature must not be held to have been unfamiliar with the fact that some manufacturers sell completely equipped trucks, including cab and body, and upon analyzing more carefully the documentary evidence, it is apparent that the contention of the defendant that cabs and bodies, being specialties, are not made by the manufacturers, is not an absolute proposition. Local salesmen testified that a great portion of the buyers of trucks have bodies constructed to suit their respective businesses and, that, therefore, body-making is a specialty. This is undoubtedly true in many cases, particularly in the case of heavy trucks.

It is scarcely to be contended that any witness testified in generalities sufficient for the court to establish uniformity of terminology for such a large number of truck manufacturers as the evidence indicates obtain, but considering the documentary evidence before it, the court is forced to conclude that this contention is not supported even by the documentary evidence introduced.

To illustrate this, the court has in mind Plaintiff’s Exhibit 15, being a leaflet advertising the General Motors trucks, in which the General Motors Company advertises “fourteen outstanding body values” and offers to supply these, with the truck chassis, if ordered by the purchaser. It is very apparent from this that the General Motors does furnish bodies with trucks, if ordered.

Turning to the Plaintiff’s Exhibit 14, being a leaflet of the Pierce-Arrow Truck Company, it is noticed that standard equipment quoted supra is furnished with the chassis and that under the head of “optional equipment” the following is provided: “An all steel cab is available at an additional price, bodies and other equipment furnished to specifications.”

Considering the International Harvester Company trucks, which company advertises that one out of fifteen of the trucks sold last year was an International, it is noticed that special equipment includes a cab, and that the company offers various body types for various models.

Considering the Ford truck, it is established by the record that bodies are available and are considered extra equipment: the same facts apply in the case of the Chevrolet and Stewart.

The Schacht truck lists chassis weight in all its models as being with the cab. It is very probable that the same conclusion is applicable to many other truck manufacturing companies.

The court is of the opinion, therefore, that this evidence establishes sufficiently that various truck manufacturers do manufacture truck bodies, and while it may be true that most of the heavy trucks are bought and sold without a body, which is ordered specially from another company, it is, nevertheless, true that a great number of trucks can be bought complete from the manufacturer. This seems particularly true and very general in reference to the light weight trucks, commonly known as commercial and combination trucks. This being true, the contention of the relators that the Legislature could have meant only the chassis weight is answered completely.

On the contrary, it would be more reasonable to assume that the Legislature meant just what it said, “the weight of the vehicle fully equipped as represented by the manufacturer,” having in mind that if the manufacturer sold a completely equipped motor vehicle, including the body, that such weight should be considered; this would permit still the sale of the chassis, but such a chassis would not be a motor vehicle completely equipped, but would, in fact, be a chassis completely equipped.

Turning now, again, to the very words of the law, and leaving the field of possible uncertainty for the field of relative certainty, the conclusion of the court is immutably fortified by the very vital provisions of the proviso included in this section, being Section 6293, the origin of which is easy to understand after an analysis of the facts. The terms of this proviso are:

“ * * * provided, that if this be not known or is not the actual weight, the actual weight as determined on a standard scale shall govern.”

Two conditions are embraced in this provision: first, that if the weight represented by the manufacturer of a vehicle fully equipped is not known, or, second, if the weight represented by the manufacturer for the vehicle fully equipped is not the actual weight, then in either or both events, the actual weight as determined on a standard scale shall govern.

It is contended by the relators that this proviso is not to operate if the weight, as represented by the manufacturer, is known. Such contention contradicts the very words of the proviso, itself, which sets up clearly the conditions under which it is to operate, and under which the actual weight must be determined by a standard scale.

Further, these two clauses in the proviso are alternative : that is, if the weight is not known, or, if, being known, is not the actual weight. It is obvious, therefore, that even though the weight as represented by the manufacturer may be known, if it is not the actual weight of the vehicle, the actual weight should be determined on a standard scale. It is difficult to comprehend how the language employed in this provision can be interpreted contrary to this conclusion, or can be reasoned out logically in any other manner. Certainly, it should not be contended that the proviso is' utterly meaningless, and that if someone can present a statement as to what the manufacturer represented the chassis weigth of the vehicle to be when he sold it, that then such weight shall be the determining weight, and held exclusive of the factual weight actually obtaining, and either known or ascertainable.

It is contended that this proviso contemplated that the manufacturer might underestimate the weight of a vehicle in order to effect a sale, and, therefore, the state would be protected against such misrepresentation, and should be given the privilege of weighing the vehicle. Even if it be assumed that this is one possible consideration of the Legislature, it is obvious to the court that other considerations entered into the intendment of the Legislature in making this provision. Further, there would be scant intelligence in, or reason for protection against potential misrepresentation on the part of the manufacturer, which at the most would probably be slight, due to ease of detection, and at the same time leave the legalized opportunity for wholesale and unassailable weight additions upon legalized permission to add truck equipment of any weight desired, without additional tax. If it was important to protect against misrepresentation of the manufacturer, it is obvious that truck weight was of importance and entered into the consideration of the Legislature and the intendment of the law.

It is conceivable, as contended by the relators, that there might be a time when the weight of a vehicle fully equipped might not be known, but it is not necessary to conclude, as relators contend, that this would obtain only because of a change of ownership or other conditions, such as the manufacturing company being defunct. It is far more logical to hold that it was contemplated that subsequent change in the form, through body equipment, might be made, resulting in the weight being changed and, therefore, not being known, for such always occurs when truck equipment is added to the equipped chassis, which so generally happens, as contended by the relators. There is no necessity then to speculate as to reasons, when the question is fully answered by formidable facts.

If the purpose of the provision was merely to detect a misrepresentation of the manufacturer, the court is of the opinion that instead of the phrase, “the actual weight,” the phrase, “the true weight,” would have been a more meticulous application of correct English, the word “true” being used to distinguish between the false weight of the manufacturer and the true weight of the manufacturer.

The word “actual” weight means the weight of the vehicle as it is when the application is made, and it is not reasonable to conclude that the proviso would have been placed in this section if it was not contemplated that the weight of the vehicle, as it actually stood when the application was made, should govern. If this was the weight which the manufacturer sold, then' the proviso and the preceding clause would be consistent, but the purpose of the proviso is to bring into operation a method of determining the actual weight, and, therefore, it is required that this shall be determined on a standard scale, under the. conditions set forth.

This analysis of Section 6293 is the only logical method of interpretation consistent with cognate sections of the law pari materia.

It is noticed that Section 6292-1 which provides the rate basis upon which the fees are to be determined, contains in the second paragraph the provision:

“For each commercial car having motor power and for each trailer or semi-trailer, seventy cents per one hundred pounds or part thereof for the first two thousand pounds or part thereof of weight of vehicle fully equipped, etc.”

It is obvious that this provision does not, in any way, say “weight of chassis fully equipped as represented by the manufacturer,” but “weight of vehicle fully equipped.”

Further, it is found that in Section 6294, in sub-paragraph one, the Legislature used the phrase, “the gross weight of vehicle fully equipped.” This phrase does not state and certainly cannot connote mere chassis weight, and, in fact, the use of the word “gross” carries an implication of the totality of weight, that is, the cEassis plus the body equipment weight. If the phrase were merely the “gross vehicle weight,” and this were interpreted in the light of other legislation and the manufacturer’s terminlogy, it might include the chassis, plus the body, plus the payload, but since it is modified in this particular section wth the phrase “fully equipped,” it obviously does not include the payload, and it can be considered consistent with the provisions of other sections only when so interpreted. It is urged, however, that sub-section one of Section 6294 must be interpreted in connection with Section 6293. This contention is proper, and, by the interpretation given by the court, such a reference indicates consistent and logical purposes in both sections.

Even if this were a well-founded construction, the court is not justified in substituting a different standard for that created by the law, for a chassis is only a part of a motor vehicle, regardless of argument.

However, the court has considered very carefully the claim that if the chassis weight is adopted then the cab and body weight will be considered as a part of the load, and, therefore, the payload will be reduced to the extent of the weight of the body equipment. This being the case, it is urged that it is unimportant even if the body weighs several tons, since the capacity of the vehicle to carry payloads will be reduced in proportion to that body weight.

This contention has some merit as to total road weight and would be significant if the provisions of the law in reference to gross vehicle weight were being considered and the necessity for certain width of tires in carrying-such loads were involved, but these matters are not in issue, and, therefore, this contention may reach to the fairness of the law but proves nothing as to its meaning.

Three alternatives were presented to the Legislature: (1) a tax upon the chassis weight alone, as contended by the relators; (2) a tax upon the gross vehicle weight, consisting of the chassis, plus the body, plus the payload; (3) a tax upon the vehicle weight, consisting of the chassis, plus the body and equipment.

If the tax were placed upon the chassis weight alone, it is contended that this would be fair and just to all users. Even if correct, this is argumentative matter rather than law, but when it is considered that the chassis alone is never used on the highways and that no one contends that it can be used, being without even a cab, it is plainly obvious that the chassis weight would not furnish a proper basis for computation of a tax. Not only is the chassis not a motor vehicle fully equipped and never used without at least a cab, but such a wide variety of bodies is used, that the universality of the chassis, plus the body weight, argues strongly for this basis of computation rather than the chassis weight alone. It was partly upon this ground that it has been held by court decision that the chassis weight could not be a legal basis of computation, as illustrated by the decision of the Federal Court in the case of Prouty v. Coyne, 55 Fed. (2nd) 289.

However, the court does not wish to place the instant decision on the basis of the opinion swpra, regarding the authority of the Legislature as broad enough to make any reasonable standard uniformly applicable, it not being necessary to determine the constitutionality upon this proposition.

In considering the second possible classification, the gross vehicle weight, it is recalled that the Legislature previously taxed the gross vehicle weight, regarding the rated capacity of the manufacturer as being the unit upon which to make part of the computation. This was subsequently rejected as unsatisfactory.

The Legislature has thus evinced an intention to reject the rated capacity as a basis for taxation, and there is, therefore, no reason at law for regarding the body weight as constituting part of the rated capacity, and, for that reason, due to the changed basis, being, exonerated from tax. This would be in conflict with the evident purpose of the Legislature to deal with rated capacity, only in connection with the special features of the law, as found in Sections 7246, 7247, 7248-1, 7248-2 and 7248-3, and for the purposes therein specified.

There is left, therefore, as the most logical method of computing a tax of this nature the weight of the vehicle fully equipped, with the interpretation of the phrase “fully equipped” meaning the weight of the vehicle, as it stands in its entirety as a truck as used when presented for license.

It is urged that it makes no difference whether the body weight rides as part of the rated capacity, as contended by the relators, or as a part of the truck equipment. It obviously makes a difference in the amount of the tax. Further, as to most vehicles the rated capacity would not, at all times, be utilized, but in the case of a vehicle fully equipped it is this constant weight that goes over the roads. This, being generally a fixed and constant weight, is more logical than the chassis weight or the chassis weight plus the rated capacity. Further, the evidence shows that the owners do not make a rated reduction for the body weight and generally exceed the manufacturer’s rated capacity load, without considering the body weight as part of the load.

It is true that body equipment may vary even on the same chassis, and often owners make such changes as the work requires, but, nevertheless, it is also true that a vast majority of trucks utilize customarily and generally one type of body construction. As has been provided in some states, if there be interchangeable bodies, it might be logical and just to require a license based upon the weight of the vehicle fully equipped with the body most generally used, though there is no specific provision in the instant law for such a requirement.

It is obvious that the present Motor Vehicle Act embodies a changed conception as to purpose; the first Act being purely of a regulatory nature, the present Act being both regulatory in nature and a revenue producing law. The section announcing the purposes of the law clearly indicates an exercise of the sovereign right of taxation for revenue. This, however, does not mean that the law is not a tax on the privilege of operating a motor vehicle.

Adopting the words of the Supreme Court of the United States, in the case of Hendrick v. Maryland, 235 U. S., 610, at page 623, as stated by Justice McReynolds:

“The movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves. Their success depends on good roads, the construction and maintenance of which are exceedingly expensive; and in recent years insistent demands have been made upon the state for better facilities, especially by the ever-increasing number of those who own such vehicles. * * * Primarily for the enforcement of good order and the protection of those within its own jurisdiction the state put into effect the above described general regulations, including requirements for registration and licenses. A further evident purpose was to secure some compensation for the use of facilities provided at great cost from the class for whose needs they are essential and whose operations over them are peculiarly injurious.”

This statement requires scant amplification. It is so universally recognized that the weight, speed and load of the vehicle are factors affecting the condition and maintenance of the road that it requires no discussion, It is for that reason, that a tax of this, nature has been considered as a privilege tax, graduated properly according to the propensities of the vehicles to injure or destroy the public highways. State Legislatures, therefore, may tax according to any reasonable standard or classification based upon a just principle, designed to effect the purposes of the law, and since no law can accomplish absolute constant assurance of exact equality, the Government is obligated to adopt the principles most likely to operate justly. If the classification is reasonable and uniformity obtains in the enforcement of the law, the judiciary should not interfere. Adopting the statements of principle by the Supreme Court of Ohio in the case of Saviers v. Smith, 101 O. S., 132:

“The authorities agree that a statute is general and uniform if - it operates equally upon every person and locality within the circumstances covered by the act, and when a classification has a reasonable basis it is not invalid merely because not made with exactness, or because in practice it may result in some inequality. Lindsley v. Natural Carbonic Gas Co., 220 U. S., 61, and Steele, Hopkins & Meredith Co. v. Miller, 92 Ohio St., 115, 127.”

In the words of the Supreme Court of the United States, in the case of Clark v. Poor, 274 U. S., 554:

“Being valid only if, compensatory, the charge must be reasonably predicated upon the use made, or to be made, of the highways of the State.”

In this connection, the court is of the opinion that if the contention of the relators were accepted, a gross injustice would be done in a very general degree, in that vehicles of equal chassis weight in the manufacturer’s hands so readily become utterly different vehicles in the hands of the user, due to the variety of uses and the variety of bodies. Therefore, the very generality of the practice, urged by the relators, of truck purchasers placing cabs and bodies on the chassis after it leaves the factory, becomes a potent argument for the contention of the defendant, that the weight of the fully equipped vehicle is the legal basis of tax computation.

Obviously, there can not be two weight basis classifications, one for those who buy the truck complete at the factory with a body, upon which total vehicle weight the purchaser must pay a tax because the vehicle came fully equipped from the manufacturer, and another classification for the purchaser who bought the same chassis but put a body on it later, possibly weighing several thousand pounds, which, under the contention of the relators, should be tax exempt. To state such a proposal is to reject it. Both of these conditions cannot lawfully exist under the same law. Uniformity of operation being essential to the validity of the law, the adoption of such an interpretation would render it impossible to lawfully enforce the law.

It is true that a differentiation occurs also due to the different nature of the load placed upon the vehicles, regardless of the body weight; the impossibility of determining this physical load precludes its use as a basis of taxation, while, as indicated by the court, the rated capacity basis has been rejected by the Legislature and the load is not taxed.

The court regards it extraneous to the issues now presented for determination that it should undertake either to determine a plan of administrative procedure in reference to such contingencies, or define the power of the officials in reference thereto. A rule of reason should obtain in the administration of the law, and regardless of the adminisstrative problems in reference to a check of the truck weight when bodies are changed, at least the law clearly justifies the weighing of the vehicle at the time the application for license is made.

A comparable administrative problem obtains when motor vehicle owners shift licenses on passenger cars, with less opportunity, however, to escape detection.

Adoption of a similar principle has been made by the Legislature by virtue of Section 6294-1, permitting the owner of a motor vehicle to apply as a credit upon the license fee of a motor vehicle, requiring a larger fee, the amount which he originally paid for the license fee upon the car immediately previously owned before acquisition of the latter car.

In this connection, it should be borne in mind that if the contentions of the relators were accepted, and if there were doubt as to the weight of the chassis as represented by the manufacturer, it would be extremely impracticable to effect a proper weighing of the machine according to a chassis standard, for it would be necessary to order the machine dismembered, stripped down to its chassis, before weighing it, and if the contentions of the relators were accepted to the full extent contended, it would require even the removal of the cab and weighing of the machine without the cab.

The court does not believe that the Legislature ever contemplated this manner of enforcement, for it would be productive of confusion and injustice. This proposition, therefore, is reduced either to this absurdity or to the other extreme of requiring the Registrar, or Deputy Registrar, to accept the statement made by the owner as to weight, without any protective measures whatever available to in'sure that the state shall have the proper tax collected. Neither of these propositions is tenable, and neither is promotive of justice, either to the state or to individual owners of a motor truck.

This law is not perfect. Further amendments might clarify its operation and administration, but the law, when considered on a disinterested and comprehensive basis is properly promotive of the general interests of the owners of motor vehicles, and indispensable to the maintenance of the highways.

In the words of the Supreme Court of the United States, in the case of Metropolis Theater Company v. Chicago, 228 U. S. 61; 33 S. Ct., 441:

“To be able to find fault with a law is not to demonstrate its invalidity. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific.”

Further, the court believes that any different conclusion than that reached by the court as to the basis of this tax, as set forth in the opinion given up to this point, would be destructive to the general purposes of the law. To announce that the tax was on the operation of a chassis alone, when the roads and highways are filled with motor vehicles fully equipped and not a single simple chassis running on the roads or highways, would be a fundamental departure from the purposes of the law.

The duty of the court is to preserve the spirit of the law and to make its intendments effective in their entirety when possible, and, as stated by the Supreme Court of the United States in a case of different nature:

“There is a presumption against a construction which would render a statute ineffective or inefficient, or which would cause grave public injury or even inconvenience.” Bawd v. United States, 187 U. S., 118.

Having disposed of the general meaning of Section 6293, both as to its primary provision and the proviso inseparably connected therewith, it is now necessary to reduce the principle interpreted to greater particularity of definition, and to both define and differentiate truck equipment as such and other equipment carried on a truck. The constantly developing field of use by motor vehicles, and the advancing adaptation of apparatus, machinery, and trade equipment to placement and utilization on trucks has given rise to many diversified results in both the physical appearance and service rendered by trucks. It is doubtful that the Legislature was aware of many of the present developments involving the use of apparatus and equipment while stationed on trucks.

The court entertains no doubt that the primary and sole purpose of the Legislature was to tax the operation of a motor vehicle fully equipped as such. The intendment of the law is confined to motor vehicles and does not embrace the general field of mechanical equipment. The state government, by this law, is seeking to regulate the operation of motor vehicles and derive a revenue from their operation on the highways as such. Nothing else is contemplated by the law, and no intendment lies in the law to regulate the use of machinery or mechanical devices simply because it is placed on trucks for transportation to places of use and for the purposes of the devices.

This conception of the fundamental purpose of the law absolutely determines the questions presented by the instant cases.

Recourse to definition is generally an academic approach to a question, but since several of the terms involved in a further determination of the matter before the court are defined by statute, the court now invites attention to the provisions of Section 6290, which defines the terminology used in the Motor Vehicle Act.

Sub-section one contains a definition of “vehicle” in these words:

“ ‘Vehicle’ means everything on wheels or runners, except vehicles operated exclusively on rails or tracks, and vehicles belonging to any police department, municipal fire department, volunteer fire department or salvage company organized under the laws of Ohio or used by such department or company in the discharge of its functions.”

Obviously, vehicle implies carrying purposes. It is so clearly distinguished from machinery, as such, as to require no comparative comment. Under the terms of sub-section two, a “motor vehicle” is defined in these words:

“ ‘Motor Vehicle’ means any vehicle propelled or drawn by power other than muscular power, except road rollers, traction engines, power shovels and power cranes used in construction work and not designed for or employed in general highway transportation, well drilling machinery, ditch digging machinery and farm machinery.”

And under sub-section six, a “commercial car” is defined:

“ ‘Commercial car’ means any motor vehicle having motor power designed and used for carrying merchandise or freight, or for carrying more than seven persons, or used as a commercial tractor.”

Bearing these definitions in mind, although ordinary logic would effect practically the same conclusions, the first proposition is that trucks are vehicles, moved by accompanying power, and used as commercial conveyances, whether of merchandise or freight, or by virtue of subsection six, as carriers of more than seven passengers.

These statutory definitions obviously exclude the conception that an object placed upon the truck ipso facto necessarily becomes a part of the truck. Such material or object must, in fact, become an inherent part of the truck, as such, and by such placement, purpose and use as to effectuate the contemplated end-result of motor vehicle transportation, that is, to carry merchandise or freight. If such addition to the truck chassis be a cab or body, it instantly becomes a part of the vehicle, -and serves the purpose of promoting transportation of the load. But when equipment, apparatus, or machinery does not assist in effectuating the purposes of a motor vehicle, but serves other purposes not inherently characteristic of a motor vehicle nor related to its operative mechanism or operative purposes, it is clearly not subject to taxation under the motor vehicle license tax law. It is, in brief, personal property of a different legal classification, subject to the appropriate ad valorem tax requirements.

In clear contradistinction, motor vehicles are taxed as to operation as such, and are exempt from ad valorem taxation by the provisions of Section 5325 of the General Tax Laws. This singular legislative distinction between motor vehicle taxation and ad valorem taxation of other personal property requires careful recognition in the instant cases in order to avoid double taxation, unless released by unauthorized administrative acts.

It is the opinion of the court, therefore, that a rule of intelligent administration, based on the principles indicated, should result in correct distinction between vehicles of a commercial nature and the equipment, apparatus, and machinery placed on such vehicle for other than vehicular purposes.

Truck equipment being, therefore, that equipment usable for vehicular purposes, which becomes a part of the truck, may be attached by various methods, and attached either permanently or temporarily, and when on the truck is a legal part thereof. It may be classified as part of the body, or it may be of an accessory nature, but it must possess characteristics designed for use as part of the motor vehicle and must assist in accomplishing the purposes of such vehicle, that is, transportation of thfe load. The fundamental inquiry is whether it is per se truck equipment. If the answer is affirmative, then it is such equipment as the Legislature contemplated.

Body equipment is inherently truck equipment. If additional equipment in the form of accessories is added and becomes a part of the truck, even if removable, it is part of the taxable truck weight.

The Legislature having rejected rated load capacity as a basis of taxation, the placement of machinery bn a truck does not change the basis of the taxation, nor the character of the machinery. Therefore, all equipment, apparatus or machinery not inherently truck equipment and not inherently an integral part of the truck is plainly a part of the truck load. It is personal property, subject to ad valorem tax, not motor vehicle equipment. Transporting it does not transmute its character.

If, therefore, it is placed on the body of a truck, it neither loses its identity as such, nor its legal status as personal property.. Apparent difficulty might seem to arise from the fact that many pieces of machinery and apparatus are placed on the truck in such a way as to be attached thereto, and usable only during the period the truck is used. This does not make it inherently truck equipment, nor an integral part of the truck.

To determine the classification, the inquiries become then:

First, does the apparatus become an integral part of the truck and form an addition to its structure so that it may be regarded as a part of the truck, itself?

Second, whether permanent or detachable, is it per se truck equipment?

Third, does its use indicate it to be functioning as part of the truck for truck uses, or as machinery, in itself, fbr its special use and results?

Fourth, does it carry the truck load, or assist in doing so, or does it merely become an object transported?

Adaptation of use of a truck to a particular form of business may require the placement of machinery and apparatus on it to perform or accomplish the work of that particular purpose or business, and in such event the rules announced by the court should enable a fundamental determination to be made. Obviously, apparatus which is usable both on the truck and off is not, generally speaking, per se, truck equipment, but is rather service or trade apparatus, device, equipment or machinery, for the particular work in which it is used. . Some degree of confusion may be created by its permanent attachment to the body or frame of the truck, but neither the manner nor period of attachment is exclusively determinative. The most conclusive test is the purpose or use to which it is put, and in practically all cases this test is infallible.

Applying these rules of "construction to the instant cases, the court now disposes of the case of the relator, Pfeiffer, who has placed a grinding mill on a Ford truck, operating the mill by a small tractor engine likewise set on the truck. The engine of the truck, the chassis and the body or platform, which is a part of the truck, is truck equipment, but certainly it can not be maintained that a grinding mill and the engine which operates it is truck equipment. This mill and gasoline engine, whether on a ground platform or truck platform, being, in fact, designed for use in a stationary position, is milling equipment not motor vehicle equipment. The fact that the owner places it upon the body of the truck and thus transports it to a farm where it is used to grind the corn or grain of the farmer does not change the character of the machinery itself. Not being designed as part of a truck nor truck equipment, its accommodation to transportation over the highways by attachment to the truck frame does not change its character in any respect. Detachment from the basic structure of the truck has no effect on its motive power, nor its grinding: nor does it lessen the motivation or purposes of the truck as such. Therefore, this grinding equipment can not be computed as a part of the weight basis for a license tax. Clearly, the truck itself, being used for business and operated over the highways, is a commercial motor vehicle.

The same reasoning applies to the case of the relator, Muth Brothers, who operate a truck which has a fixed body platform, constituting an integral part of the equipped truck, and usable only as a truck platform or body. This body is part of the weight of the truck, and must be computed as such. On this platform body is placed a hoisting winch, a common mechanical device, generally usable anywhere, and not customarily used upon a truck. The fact that it was placed and fastened to this truck so that it may be transported .to the scene where the work is to be performed does not change the character of the machinery nor its legal taxation classification. The permanency of the attachment is of no determinative significance. It was not manufactured or designed to be truck equipment, and it is, in actual fact, on a platform or off, on the ground or off, always a winch. It is not subject to the taxation provided under the Motor Vehicle law, but is personal property of other taxation classification.

The relator, Weiler Welding Company, owns a truck with a regular platform body, upon which is placed a welding machine. The welding machine, or apparatus, or any power plant connected with it is clearly not truck equipment. ' The fact that the owner wishes to convey it from place to place to dispatch and accomplish its work does not convert its character into truck equipment.

In the cases of the relators, Pfeiffer and Weiler Welding Company, the machinery discussed is not only exempt for the basic reasons indicated by the court, but is also rather clearly related to the classification designated as traveling power plants, under the provisions of sub-section two of Section 6290. None of the equipment of these three relators carries any part of the load, and, in each instance, is in fact a part of the truck load. Of course, the truck, in each instance, is subject to the tax at a weight excluding the machinery, apparatus and mechanical devices.

Considering the truck of the relator, Union Storage Company, which is a Ford truck with a specially built body, the coúrt is of the opinion that it is clearly within the purview of the statute: the body placed thereon by the owner being made specially does not change its character from that of motor vehicle equipment simply by virtue of its origin, and, under the decision hereinbefore rendered, it is subject to taxation according to its present weight.

Considering the truck of the relator, Frank Tejan, a more complicated question is presented. This relator’s truck is a LeBlond-Schacht truck with a cab and tar tank, pump, gasoline engine, motors, and a distributor. A brief description of this equipment indicates that this tank and equipment form one organized apparatus. The tank is elliptical in shape, and was not bought with the truck. It was specially built on the order of the relator by a welding company for the specific purpose of heating, hauling, and distributing tar on road surfaces. The tank is heavy sheet metal, and of a proper length to be placed on the truck frame. It has, inside along its bottom, two flues, of airtight construction. The front end of the tank is on skids, and near this end is a tar pump, on the same skids. This pump pumps the tar from the railroad tank, .and then by proper reverse operation by a stop-cock pumps the tar later from the tar tank onto the road. A heating system forces hot air through the flues in the tank, thus heating the tar. Running boards have been placed on the sides of the tank. An air tank and gasoline tank are placed on each side on these running boards, all on the skids. Two coil burners, using gas, produce the heat forced by proper connection into the tank flues. Connections from the tank to distributing spray bars permit the tar pump to force the tar out for distribtuion on the road. Approximately seventy-five pounds pressure is required in the tar tank. Ford motors furnish direct crank-shaft drive for the pump, and are likewise on the skids. A four inch Viking pump affords pressure against the small pipe-lines running to the spray bar.

It appears to the court that plainly this is a tar-spreading apparatus: that the tank is connected, in some manner,

direct and indirect, to the other equipment. All form one operating unit, consisting of these separate and component parts.

Analyzing and applying the tests heretofore laid down it seems plain that it is not reasonable or proper to classify this equipment as truck equipment in the purview of the law.- It is true it is attached to skids in turn attached to the truck frame. As the court has said plainly, the manner or time of attachment is not determinative of the character of equipment.

The use of this particular equipment must be considered. If the tank were used solely to transport tar, and thus served a distinct and sole body purpose, without connections with a heating system, pumping and motor systems, it would be classified as a hauling body. However, the tank serves as a processing apparatus as well as a containing receptacle. The tar must be volatilized to a requisite degree, and this is done, with a resulting requisite pressure. Further, the distributor system is, in fact, part of the force system, dependent both on the pump and the volatilization of the tar in the tank.

It appears to the Court that this complete equipment is a tar-spreading outfit, and while it does help convey the tar, there is more than conveyance accomplished. Mere conveyance could not result in the final effect, that is, uniform tar-spreading on the road surface. Therefore, since the engine, motors, air tank, gasoline tank, and pump are all connected with the tank, and since neither the apparatus nor the tank is a self-contaified unit, the court regards the entire as a unit for processing, hauling, and distributing tar. It is attached to the truck frame for seasonal use, and its removal does not disturb the frame of the truck. Therefore, the court believes a rule of reasonable construction must hold that this is not truck equipment as contemplated by the Legislature. The truck, including cab, and any part of a truck body thereon, is subject to the legal weight computation. The equipment discussed should not be subject to tax except under the ad valorem tax on personal property. In this connection the court notices in the exhibits that gasoline tank bodies, as integral parts of trucks, are illustrated. When manufactured as tank bodies for trucks and placed on the truck as an integral part of it, such body equipment is truck equipment, and should be regarded as part of the truck fully equipped, for that particular motor truck purpose.

The primary purpose of such a body is to hold and haul the load, and further, it is usable only while on the truck, being of no other purposeful use. It is, therefore, part of a truck equipment and not a part of the load. The equipment of the relator, Frank Tejan, has been distinguished both by its construction and its use from the ordinary tank car truck.

Considering the truck and equipment of the relator, Ready Mixed Corporation, the court is of the opinion that if weight on the highways alone was a determinative factor, this truck and equipment would justify special classification under special legislative provision. The relator operates a plant to make concrete mix ready for delivery to users: this plant has a daily capacity of two hundred yards of ready mixed concrete. The aggregates are mixed at the plant by a Rex 28-s motor driven mixer, and after being briefly mixed the concrete is discharged into Rex motor-mixers, for delivery to the users. These motor-mixers hold three cubic yards, and are mounted on Schacht trucks. The company advertises that it sells concrete ready prepared at the plant, dry batching, or transit mixed concrete. The Rex motor-mixers may, therefore, be used to convey the concrete completely mixed, to finish mixing it, or to mix it completely in transit. It is reasonably understood that even if the purpose is to convey the completely mixed concrete some degree of rotation while the same is in process of delivery would be natural and promotive of better concrete. Here, then, is found equipment which transports the load, and may and does, through special mechanism, process the load contents at the same time. It performs one function of motor vehicle equipment in that it holds and contains the load, but, on the other hand, it is obviously a complicated mechanical device, connected and made an integral part of productive machinery. Certainly the obvious and primary purpose of this machinery is to make concrete out of the necessary component materials. A simple drum, or steel body, might serve to haul concrete ready mixed at the plant. This machinery is capable of actually making the concrete and is, at times, used for that specific purpose. It consists of a large cylinder, revolving in drum-like manner, an engine and motor, mechanism to operate the cylinder, a charging and discharging opening and vents, and a delivery device. This is all mounted as one unit on a platform, which is attached to the truck frame or body. The cylinder is integrated with the motive power and the mechanical devices constituting the complete machine. The entire apparatus is detachable and removable from the truck without any effect either on it or the truck. Every container or receptacle in which a load is placed is not necessarily a part of the truck upon which it rides. ■ It is necessary to analyze both its inherent nature, its characteristics and its primary purpose.

This equipment is usable off the truck as well as on it, and its integral parts remain intact, constituting a complete unit when removed from the truck. It is, therefore, not motor vehicle equipment but, obviously, concrete mixing equipment. The court is of the opinion, however, when equipment possesses the characteristics of machinery and serves partly for the purpose of transportation, it could properly be made the subject of special classification under the Motor Vehicle Act by the Legislature, but the court is of the opinion that this is not now done. This being the prerogative of the Legislature and not the provision of the law now, the court regards it beyond the duty of the court to classify this equipment as motor vehicle equipment. The court, therefore, holds that the equipment designated as Rex motor-mixers is not, per se, motor vehicle equipment. This particular case might seem to be a severe example of unfairness to an owner of a Schacht truck consisting of the chassis and cab and platform body, who would be required to pay the same license fee as the relator operating this moving concrete plant. However, if the judgment of the Legislature has not been invoked for protection against such a condition as this, it is not for the court to legislate.

Adopting the words of the Supreme Court of Wisconsin, in its decision in the case of State ex rel Transportation Association of Wisconsin v. Zimmerman, Secretary of State, 181 Wis., 552:

“It is not necessary in a measure of this kind that it should be the most just or scientifically exact measure, nor is it necessary that each provision of the measure should be justified in whole or in part by economic or other reasons.”

In the two cases, therefore, of relators Tejan and Ready Mixed Corporation, the factors entering into the consideration of the court relate closely to the evidence, and these cases are not as clearly beyond the provisions of the law as the cases of the relator, Pfeiffer, Weiler Welding Company, and Muth Brothers, due to the complicated nature of the equipment. But applying the fundamental tests laid down by the court and considering the nature of the legislation, the intendment of the law, and the definition of terms provided in it, the conclusion of the court in respect to these relators is inescapably required.

In summary, therefore, of the findings of the court, it is held:

That the operation of the truck of the relator, Mark Pfeiffer, is subject to taxation on a weight basis including the truck chassis, cab, and body, if such exists, but not including the grinding mill, engine, and accessory devices or attachments connected with such equipment.

That the operation of the truck of the relator, Muth Brothers, is subject to taxation on a weight basis including the chassis, cab, platform and any and all other truck accessories, but not including the winch or any devices appurtenant thereto.

That the operation of the truck of the relator, Weiler Welding Company, is subject to taxation on a weight basis including the chassis, cab, body or platform, but not including the welding machine or any of its equipment, whether of a motive or accessory nature.

That the operation of the truck of the relator, Union Storage Company, is subject to taxation on a weight basis including cab and body.

That the operation of the truck of the relator, Frank Tejan, is subject to taxation on a weight basis including the chassis, cab and body, if any, but not including the tar tank, engine, therefor, pump, motor, coils, and other attachments and devices appurtenant thereto.

That the operation of the truck of the relator, Ready Mixed Corporation, is subject to taxation on a weight basis including the chassis, cab and body, but not including the motor concrete mixer and the attachments appurtenant thereto.

The court further finds and holds:

That the Deputy Registrar is authorized by law to decline applications for registration of motor vehicles unless the applications are made in accordance with the law.

That the requirement of a correct statement of weight of the fully equipped truck as it stands when licensed is a reasonable and legal requirement, reasonably related to, and authorized by the law, and necessary for the completion of the application, and that such weight should be ascertained on a standard scale when required, by the provisions of Section 6293.

The court finds further and accordingly holds that the relators have not complied with the requirements of the law in that they have not made applications in a proper and legal, form and have not tendered payment of the tax legally required, and the court therefore holds that no legal duty rests upon the respondent Deputy Registrar to accept the application as made, or the tax money as tendered, or to cause licenses to issue and license plates to be delivered therefor.

Therefore, the court holds that the prayers of the petitions, and each of them, should be and are denied; that the writs of mandamus prayed for should not issue, and that judgment for the respondent Deputy Registrar should be entered in each and all the cases.  