500, 68 Atl. 110; Nebraska Teleph. Co. v. | L.R.A. 922, 89 N. W. 1055; Ellis v. Frazier, Lincoln, 82 Neb. 59, 28 L.R.A. (N.S.) 221, 38 Or. 462, 53 L.R.A. 454, 63 Pac. 642; 117 N. W. 284; Salt Lake City v. Christen- Harder's Fire Proof Storage & Van Co. v. sen Co. 34 Utah, 38, 17 L.R.A. (N.S.) 898, Chicago, 235 Ill. 58, 85 N. E. 245, 14 Ann. 95 Pac. 523; Buffalo v. Lewis, 192 N. Y. Cas. 536; State v. Moore, 113 N. C. 697, 193, 84 N. E. 809; Adler v. Whitbeck, 44 22 L.R.A. 472, 18 S. E. 342; Jacksonville Ohio St. 539, 9 N. E. 672; Com. v. Boyd, v. Ledwith, 26 Fla. 163, 9 L.R.A. 69, 23 188 Mass. 79, 108 Am. St. Rep. 464, 74 N. Am. St. Rep. 558, 7 So. 885; People v. E. 255; Jackson v. Newman, 59 Miss. 385, Schneider, 139 Mich. 673, 69 L.R.A. 345, 42 Am. Rep. 367; Elliott, Roads & Streets, 103 N. W. 172, 5 Ann. Cas. 790; State, p. 1114; McCoy's Application, 10 Cal. App. Cleary, Prosecutor, v. Johnston, 79 N. J. L. 116, 101 Pac. 419; Kaiser Land & Fruit 49, 74 Atl. 538; Ayres v. Chicago, 239 Ill. Co. v. Curry, 155 Cal. 638, 103 Pac. 341; 237, 87 N. E. 1073; Re Hoffert, S. D. People v. Grant, 157 Mich. 24, 133 Am. St. 52 L.R.A. (N.S.) 949, 148 N. W. 20; State Rep. 329, 121 N. W. 300. v. Ingalls, – N. M. —, 135 Pac. 1177; Vernor v. Secretary of State, 179 Mich. 157, 146 N. W. 338.

It is not necessary to determine whether the license fee is for revenue or for purposes of regulation.

Banta v. Chicago, 172 Ill. 204, 40 L.R.A. 611, 50 N. E. 233; Price v. People, 193 Ill. 114, 55 L.R.A. 588, 86 Am. St. Rep. 306, 61 N. E. 844; Bessette v. People, 193 Ill. 334, 56 L.R.A. 558, 62 N. E. 215; Raymond v. Hartford F. Ins. Co. 196 Ill. 329, 63 N. E. 745; Northern P. R. Co. v. Gifford, 25 Idaho, 196, 136 Pac. 1131; Kane v. State, 81 N. J. L. 594, L.R.A. -, 80 Atl. 453, Ann. Cas. 1912D, 237; Re Schuler, 167 Cal. 282, 139 Pac. 685; State, Cleary, Prosecutor, v. Johnston, 79 N. J. L. 49, 74 Atl. 538. Mr. Harry S. Kessler, in propria per

sona:

The registration fee on motor vehicles is an attempted taxation other than by valuation, and violates § 2, article 7, of the Constitution.

Re Gale, 14 Idaho, 761, 95 Pac. 679; Stein v. Morrison, 9 Idaho, 426, 75 Pac. 246.

The "registration fees" required to be paid on motor vehicles are exacted as taxes, rather than for police protection.

Rosenbloom v. State, 64 Neb. 343, 57 uniform, fair, and practical standard, they constitute no burden on interstate commerce."

And a provision of a motor-vehicle law, that all motor vehicles, before being operated on the highways of the state, must be registered at a cost varying from $6 to $18, according to horse power, is not so arbitrary or unreasonable as to constitute, when applied to vehicles moving in interstate commerce, a direct and material burden upon such commerce. Ibid.

As to operating an automobile on a highway without a license, see notes to Dudley v. Northampton Street R. Co. 23 L.R.A. (N.S.) 561; Hemming v. New Haven, 25 L.R.A. (N.S.) 734; Lindsay v. Cecchi, 35 L.R.A. (N.S.) 699; Atlantic Coast Line R. Co. v. Wier, 41 L.R.A. (N.S.) 308; and Conroy v. Mather, 52 L.R.A. (N.S.) 801

As to license fees for the use of streets by vehicles, generally, see note to Tomlinson v. Indianapolis, 36 L.R.A. 413.

For discrimination as to the amount of

It is an attempted taxation in violation of the rule of uniformity required by the Constitution.

High School Dist. v. Lancaster County, 60 Neb. 147, 49 L.R.A. 343, 83 Am. St. Rep. 525, 82 N. W. 380; State ex rel. Cornell v. Poynter, 59 Neb. 417, 81 N. W. 431; State ex rel. Atty. Gen. v. Winnebago Lake & F. R. Pl. Road Co. 11 Wis. 35; Opinion of Justices, 195 Mass. 607, 84 N. E. 499; McCurdy v. Prugh, 59 Ohio St. 465, 55 N. E. 154; State ex rel. Nettleton v. Case, 39 Wash. 177, 1 L.R.A. (N.S.) 152, 109 Am. St. Rep. 874, 81 Pac. 554; Hawkeye Ins. Co. v. French, 109 Iowa, 585, 80 N. W. 660; State v. Scottish American Mortg. Co. 76 Minn. 155, 78 N. W. 962.

Morgan, J., delivered the opinion of the court:

This is an appeal from an order of the district court discharging from custody the respondent, who had been arrested for and convicted of operating and driving a motor cycle upon the public highways of Ada the tax or license fee on different vehicles as affecting the validity of the tax, see notes to Waters-Pierce Oil Co. v. Hot Springs, 16 L.R.A. (N.S.) 1035, and Fiscal Ct. v. F. & A. Cox Co. 21 L.R.A. (N.S.) 83.

For discrimination as to the persons or vehicles subject to a license or privilege tax for the use of a highway, as affecting the validity of the tax, see note to Dalton v. George C. Brown & Co. 42 L.R.A. (N.S.) 506.

As to the limit of the amount of license fees, see note to State ex rel. Toi v. French, 30 L.R.A. 415.

As to the validity of a license tax on vehicles used in a business for which a general occupation tax is required, see note to Newport v. Fitzer, 21 L.R.A. (N.S.) 279.

As to the applicability to vehicles owned by nonresidents, of a city ordinance imposing a license upon the use of vehicles, see note to Pegg v. Columbus, 23 L.R.A. (N.S.) 453. A. C. W.

county, Idaho, in violation of the provisions of chapter 179 of the Session Laws of 1913, in that he had not caused the said motor cycle to be registered nor paid the fee incident thereto.

Said chapter creates a state highway commission and provides, among other things, a comprehensive plan of state highway construction and improvement and of policing motor traffic upon the public highways. Section 12 thereof is as follows:

"Except as hereinafter provided, no motor vehicle shall be operated or driven upon any state or other public highway or upon the public streets of any city or incorporated village in this state until the said motor vehicle shall have been registered with the secretary of the State Highway Commission."

In this case the respondent contends that the registration fee on motor vehicles provided for in § 16 of said chapter 179, is an attempted taxation other than by valuation, and violates § 2, art. 7, of the Constitution of Idaho, which is as follows:

"The legislature shall provide such revenue as may be needful, by levying a tax by valuation, so that every person or corporation shall pay a tax in proportion to the value of his, her, or its property, except as in this article hereinafter otherwise provided. The legislature may also impose a license tax (both upon natural persons and upon corporations, other than municipal, doing business in this state); also a per capita tax. Provided, the legislature may exempt a limited amount of improvements upon land, from taxation."

It is contended that the said chapter, in so far as it provides for the payment of fees for registration, in an amount in excess of that necessary to properly police the use of motor vehicles upon the public highways, is a revenue measure. That it does raise considerable revenue in excess of

Said chapter provides the manner in which registration shall be applied for and the manner in which a record thereof shall be kept; that the application for registration of a motor vehicle of 30-horse power or less shall be accompanied by a fee of $15, and of a motor vehicle of over 30-horse power and up to and including 40-horse an amount necessary for police purposes, power by a fee of $20, and of a motor vehicle of over 40-horse power and up to and including 50-horse power by a fee of $25, and a motor vehicle of over 50-horse power by a fee of $40, and in case of a motor cycle by a fee of $5. Said chapter also provides for the issuance to the applicant a certificate of registration and a number.

and that it appropriates the money so raised to a fund for the construction and maintenance of public highways, is quite true. In this connection, however, it may be observed that the license or fee is exacted, not upon the ownership of the motor vehicle, but upon the right to use it upon the public highways.

Respondent also contends that said § 16 is an attempted taxation in violation of the rule of uniformity required by § 5, art. 7, of the Constitution, which is as follows:

"All taxes shall be uniform upon the same class of subjects within the territorial

The fees above mentioned are to be paid annually, and shall be in lieu of all taxes, general or local, and the chapter expressly provides that all motor vehicles for which this annual fee is to be paid and which have been so registered shall be exempt from taxation. It is also provided that the vio-limits, of the authority levying the tax, and lation of any of the provisions of this chapter in question shall be a misdemeanor, punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding $300, or by both such fine and imprisonment. Under the terms of the chapter all such fines are to be turned over to the secretary of the State Highway Commission, who shall pay them over to the state treasurer, together with all fees collected under the provisions of said chapter, and said moneys shall go into the state highway fund.

This chapter was before the court for consideration in the case of Achenbach v. Kincaid, 25 Idaho, 768, 140 Pac. 529, wherein the constitutionality of the law was questioned, and it was held to not violate the Constitution in the particulars therein considered, but the court held the questions here presented were not properly before it in that case.

shall be levied and collected under general laws, which shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personal, provided, that the legislature may allow such exemptions from taxation from time to time as shall seem necessary and just, and all existing exemptions provided by the laws of the territory, shall continue until changed by the legislature of the state, provided, further, that duplicate taxation of property for the same purpose during the same year, is hereby prohibited."

The respondent, in presenting his petition for a writ of habeas corpus, and the district court, in granting it and in ordering him discharged from custody, seem to have proceeded upon one of two erroneous theories: Either that the legislature of the state of Idaho possesses no inherent power in matters of taxation, but may raise revenue only in conformity to a grant of

authority so to do, expressed in the Constitution; or that a prohibition against raising revenue in the manner attempted by said chapter 179 is expressed in, or is to be implied from, the language of the Constitution.

upon legislative authority can exclude anything to which the authority extends from the grasp of the taxing power, if the legislature, in its discretion, shall at any time select it for revenue purposes; and not only is the power unlimited in its reach as to In the case of Achenbach v. Kincaid, su- subjects, but in its very nature it acknowlpra, this court said: "As to the question edges no limits, and may be carried even of taxation: The legislature possesses to the extent of exhaustion and destruction, plenary power, except as such power may thus becoming in its exercise a power to be limited or restricted by the Constitution. destroy. If the power be threatened with It is not necessary that the Constitution abuse, security must be found in the reshall contain a grant of power to the leg-sponsibility of the legislature that imposes islature to deal with the question of taxa- the tax to the constituency which must pay tion. It is sufficient proof of its power if there be found in the Constitution no prohibition against what the legislature has attempted to do as stated by the supreme court of Oregon in the case of State v. Cochran, 55 Or. 157, 104 Pac. 419, 105 Pac. 884:

'A state Constitution, unlike a Federal Constitution, is one of limitation, and not a grant of powers, and any act adopted by the legislature not prohibited by the state Constitution is valid, and such inhibition must expressly or impliedly be made to appear beyond a reasonable doubt.' See St. Joe Improv. Co. v. Laumierster, 19 Idaho, 66, 112 Pac. 683; Walker v. Spokane, 62 Wash. 312, 113 Pac. 775, Ann. Cas. 1912C, 994; People ex rel. Simon v. Bradley, 207 N. Y. 592, 101 N. E. 766.

"In passing on the constitutionality of a statute, every reasonable doubt as to its validity will be resolved in favor of sustaining the statute. People ex rel. Vandeventer v. Rose, 203 Ill. 46, 67 N. E. 746; House of Reform v. Lexington, 112 Ky. 171, 65 S. W. 350; Com. v. Barney, 115 Ky. 475, 74 S. W. 181; State v. Thompson, 144 Mo. 314, 46 S. W. 191; Ex parte Loving, 178 Mo. 194, 77 S. W. 508.

"An act of the legislature will not be declared unconstitutional unless in plain violation of some provision of the Constitution. Brady v. Mattern, 125 Iowa, 158, 106 Am. St. Rep. 291, 100 N. W. 358.

"The court, in construing a statute, must adopt such construction as will sustain the constitutionality of the statute, where that can be done without doing violence to the language thereof. State v. Barrett, 172 Ind. 169, 87 N. E. 7. The courts must, as far as possible, uphold and give effect to all statutes enacted by the legislature. Com. v. International Harvester Co. 131 Ky. 768, 115 S. W. 755."

it. The judiciary can afford no redress against oppressive taxation, so long as the legislature, in imposing it, shall keep within the limits of legislative authority, and violate no express provision of the Constitution. The necessity for imposing it addresses itself to the legislative discretion, and it is or may be an urgent necessity which will admit of no property or other conflicting right in the citizen while it remains unsatisfied."

See also Lowe v. White County, 156 Ind. 163, 59 N. E. 466.

Certainly our Constitution does not expressly prohibit the people of Idaho from raising revenue in the manner provided in chapter 179 of the Session Laws of 1913; and, while it is true there are three methods of raising revenue expressed in § 2 of article 7 of the Constitution, we cannot infer from this that an implication arises prohibiting the state from also raising revenue pursuant to its inherent power to do so in any other manner its legislature may see fit to adopt.

It is earnestly urged that this is not a property tax; that it is a license, and raises more revenue than sufficient to police motor vehicles upon the public highway. We are fully convinced that in this contention respondent is correct, but it does not follow that the law is in contravention of the Constitution.

By way of sustaining his contention that this law is intended to raise revenue, respondent quotes from Rosebloom v. State, 64 Neb. 343, 57 L.R.A. 922, 89 N. W. 1055, as follows:

"We agree with counsel in the view that the primary and paramount, if not the only, object of the law, is to obtain revenue by imposing a tax upon the business of peddling. The only thing the peddler is reJudge Cooley, in vol. 1 of his work on quired to do is to pay his tax and exhibit Taxation, 3d ed. p. 9, says: "Everything the appropriate evidence of payment to any to which the legislative power extends may person who may wish to see it. The only be the subject of taxation, whether it be thing he is forbidden to do is to pursue his person or property, or possession, franchise, calling without having first paid the tax. or privilege, or occupation or right. Noth- No police inspection or supervision is proing but express constitutional limitation vided for. If the things commanded and

forbidden are to be regarded as features of | able length from the case of Vernor v. Secregulation or repression, they are not, to retary of State, a Michigan case, reported say the least, so pronounced or conspicuous ir. 179 Mich. 157, 146 N. W. 338. This case as to suggest the idea that the law is is not in point, except to show that the prinreferable to the police power, rather than to cipal purpose of the law was to raise the power of taxation." revenue, rather than a police regulation. The act was held to be unconstitutional, upon the ground that the title was insufficient, not upon the ground that revenue cannot be raised by requiring those who operate motor vehicles upon the public highway to procure and pay for a license so to do.

By beginning to quote from the point in that decision where respondent leaves off, the attitude of the supreme court of Nebraska and of this court upon this question is very clearly stated as follows: "But, granting the contention of counsel for defendant that the statute is a revenue measure, pure and simple, we are not able to discover any valid objection to the enforce ment of it in the manner provided by the legislature. It is settled doctrine in this and in every other jurisdiction that courts will not adjudge statutes unconstitutional unless they are plainly so. Now, with what express provision of the higher law does the statute in question clash? We know of none."

The respondent maintains that the law under consideration violates § 5, art. 7, of the Constitution, in that the registration fees therein provided for are not uniform upon the same class of subjects, and that it does not secure a just valuation of the property thus taxed. The provision of that section of our Constitution, requiring all taxes to be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and to be levied and collected under general laws which shall prescribe such regulations as shall insure a just valuation for taxation of all property, real or personal, refers solely to taxation according to the commonly accepted meaning of that term, by assessment, levy, and col

Respondent seeks to distinguish from this case that of Salt Lake City v. Christensen Co. 34 Utah, 38, 17 L.R.A. (N.S.) 898, 95 Pac. 523, where a revenue raising license fee was sustained, and with that end in view quotes from the Utah Constitution as follows: "Nothing in this Constitution|lection, and does not apply to license or shall be construed to prevent the legislature from providing a stamp tax, or a tax on income, occupation, license, franchise, or mortgages."

This paragraph of the Utah Constitution merely points out the proper construction of that document, which would prevail even in the absence of the paragraph.

In like manner respondent seeks to distinguish from this case that of Re Schuler, 167 Cal. 282, 139 Pac. 685, decided by the supreme court of California, which upholds the right of the legislature of California to enact a law exacting from the owners of motor vehicles a revenue for their use upon the public highways, which revenue was to be used for the upkeep of said highways, by reason of this paragraph in the California Constitution: "The legislature shall have power to establish a system of state highways or to declare any road a state highway, and to pass all laws necessary or proper to construct and maintain the same, and to extend aid for the construction and maintenance, in whole or in part, of any county highway."

registration fees. It is to be borne in mind that the law under consideration does not impose a tax upon property, but imposes a registration fee, or license, upon the privilege of operating motor vehicles upon the public highways.

It has been frequently held by this court that liquor licenses, pool and billiard table licenses, taxes by way of licenses imposed upon persons and corporations engaged in loaning money within the state, and upon railway and express companies doing business within the state, are not taxes contemplated by §§ 2 and 5 of article 7 of the Constitution, but constitute a separate and distinct way of raising revenue, independent of taxation in the commonly accepted meaning of that term. State v. Doherty, 3 Idaho, 384, 29 Pac. 855; State v. Union Cent. L. Ins. Co. 8 Idaho, 240, 67 Pac. 647; State v. Jones, 9 Idaho, 693, 75 Pac. 819; Re Gale, 14 Idaho, 761, 95 Pac. 679; Northern P. R. Co. v. Gifford, 25 Idaho, 196, 136 Pac. 1131. See, also, Salt Lake City v. Christensen Co. and Re Schuler, supra.

The respondent complains that, as beIt is perfectly clear that the foregoing tween the owners of motor vehicles, the law provision of the California Constitution is unfair and unjust; that the owner of neither grants to, nor takes from, the legis- such a vehicle worth but a couple of hunlature of that state the power to raise dred dollars is required to pay the same revenue. Said paragraph only points out tax as the owner of one worth $2,000 or one of the ways in which the moneys of the $3,000, or more, provided, of course, the state may be expended. machines happen to be of the same horse The respondent also quotes at consider- power. We fail to see wherein the value of