MOTOR VEHICLES - DRIVERS' LICENSES - OPERATION OF CERTAIN MOTOR VEHICLES FOR COMPENSATION

MOTOR VEHICLES - DRIVERS' LICENSES - OPERATION OF CERTAIN MOTOR VEHICLES FOR COMPENSATION.

In order for a person to be operating "for compensation" a motor vehicle requiring special operating skills, within the meaning of RCW 46.20.440, it is necessary that his operation of such a vehicle be a distinct employment duty for which compensation is paid.

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                                                               December 19, 1968

Honorable Harold R. Koch
Prosecuting Attorney
Thurston County Court House
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1968 No. 37

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office as to the meaning of the phrase "to operate for compensation" as used in § 1, chapter 20, Laws of 1967, Ex. Sess. (RCW 46.20.440.) Although you have stated your questions in terms of several different factual situations (which we will note at the conclusion of the opinion), we believe that the basic legal issue raised by your request may be paraphrased as follows:

            In order for a person to be operating "for compensation" a motor vehicle requiring special operating skills, within the meaning of RCW 46.20.440, is it necessary that his operation of such a vehicle be a distinct employment duty for which compensation is paid?

            We believe that this question is answerable in the affirmative for the reasons set forth in the following analysis.

                                                                     ANALYSIS

            In the state of Washington, until 1967, a person holding a valid Washington state driver's license was authorized to drive any type of motor vehicle permitted on the state highways.  However, this concept of a single universal driver's license was modified by two 1967 legislative acts.  First, by § 1, chapter 232, Laws of 1967 (RCW 46.20.500), the legislature made it necessary for a person to obtain a special endorsement on  [[Orig. Op. Page 2]] his driver's license in order to legally drive a motorcycle.  Secondly, by § 1, chapter 20, Laws of 1967, Ex. Sess. (RCW 46.20.440), the legislature required persons operating "for compensation" certain vehicles found by the director of the department of motor vehicles to require special operating skills to also obtain a special endorsement on their regular drivers' licenses.1/   This statute, which gives rise to your question, reads as follows:

            "It shall be unlawful for a person to operate for compensation upon the public highway any motor-truck, truck-tractor, school bus or for-hire vehicle as defined by RCW 46.04.310, 46.04.650, 46.04.521 and 46.04.190 respectively, found by the director to require special operating skills as hereafter provided, unless the driver shall have successfully completed an examination, in addition to the examinations in RCW 46.20.130, demonstrating the ability of the driver to operate and maneuver the vehicle or vehicles upon the public highway in a manner not to jeopardize the safety of persons or property:  PROVIDED, That this requirement shall not apply to any person hauling farm commodities from the farm to the processing plant or shipping point, not to exceed a radius of fifty miles from the farm.

            "The director shall upon completion of such tests specially endorse the driver's license of the applicant to indicate the type of vehicle qualifications met."  (Emphasis supplied.)

            Under this statute persons who drive certain motor vehicles found by the director of the department of motor vehicles to require special operating skills must obtain the special endorsement.  The director's findings as to this matter have been made and are now formally set forth in WAC 308-100-010 and WAC 308-100-020, as follows:

            WAC 308-100-010:

             [[Orig. Op. Page 3]]

            "VEHICLES REQUIRING ENDORSEMENT FOR THEIR OPERATION.  The director of the department of Motor Vehicles hereby finds that all motor trucks having three axles, truck-tractors having three axles, and for-hire vehicles having three axles, and school buses designed for carrying more than thirteen (13) passengers, require special operating skills by the drivers of those vehicles.  All persons driving such vehicles for compensation must secure from the department of Motor Vehicles an endorsement on their driver's license designated as INTERMEDIATE."

            WAC 308-100-020:

            "COMBINATION MOTOR VEHICLES REQUIRING AN ENDORSEMENT FOR THEIR OPERATION.  The director of the department of Motor Vehicles hereby finds that all motor trucks and truck-tractors operated in combination with any semi-trailers or trailers, when such trailers are in excess of 5,000 pounds gross weight, require special operating skills by the drivers of those combination vehicles.  All persons driving such combination vehicles for compensation must secure from the department of Motor Vehicles an endorsement on their driver's licenses designated as COMBINATION."

            Of course, these two regulations do not purport to interpret the statutory phrase "for compensation"; instead, they simply specify the types of motor trucks, and similar vehicles, which are to be regarded as requiring special operating skills.  However, the regulations do further indicate, and implement, what appears to have been the clear purpose of the legislature in enacting the statute; namely, to require higher qualifications for individuals who drive vehicles requiring special operating skills.  Both § 1 (RCW 46.20.440),supra, and § 2 (RCW 46.20.450)2/ illustrate this purpose.  In addition, this  [[Orig. Op. Page 4]] same purpose was expressed by Senator Perry Woodall, one of the sponsors of the act, during debate in the Senate, as follows:

            ". . . All you are going to say is when a man is driving one of these big semi-trucks and trailers down the highway, someone should examine him and determine if he knows enough about the equipment to operate it."3/

             Yet, obviously, the legislature's inclusion of the qualifying phrase "to operate for compensation" in § 1 of the act (RCW 46.20.440) negates any universal application of the statute to all persons who may, under any circumstance, have occasion  [[Orig. Op. Page 5]] to drive one or more of the types of vehicle found to require special operating skills.  Our task here is to determine just how this qualifying phrase is to be construed and applied.

            The Washington state supreme court on a number of occasions has indicated that:

            ". . . A cardinal rule of statutory construction is that the words to be construed must be given their usual and ordinary meaning. . . ."

            See,Pacific Etc. Alloys v. State, 49 Wn.2d 702, 306 P.2d 197 (1957).  Also, seeCrown Zellerbach Corp. v. State, 53 Wn.2d 813, 328 P.2d 884 (1958), appeal dismissed, cert. denied, 79 S.Ct. 1138, 359 U.S. 531 (1959), 3 L.Ed.2d 1029; andState ex rel. Longview Fire Fighters Union, Local 828, I. A. F. K. v. City of Longview, 65 Wn.2d 568, 399 P.2d 1 (1965).

            A second rule of construction which must be applied in the case of the statute here being considered is the well-established rule that criminal statutes (i.e., statutes defining a crime for which punishment may be imposed) are always to be strictly construed against the state and in favor of the accused.  See, e.g.,City of Seattle v. Green, 51 Wn.2d 871, 322 P.2d 842 (1958), andState v. Thompson, 38 Wn.2d 774, 232 P.2d 87 (1951).  The meaning of this rule was explained by our court in State v. Rinkes, 49 Wn.2d 664, 306 P.2d 205 (1957), as follows:

            "Penal statutes are to be construed strictly, to the end that offenses not entitled to be included shall not be prosecuted.  But they are not to be construed so strictly that they would be defeated by a forced and over-strict construction.  State v. Larson, 119 Wash. 123, 125, 204 Pac. 1041 (1922), and cases cited.

            "Strict construction of a penal statute means merely that the punitive sanctions must be confined to such matters as are clearly and manifestly within the statutory terms and purposes.  It does not mean that a forced, narrow, and over-strict construction should  [[Orig. Op. Page 6]] be applied to defeat the obvious intent of the legislature.  SeeNorthern Securities Co. v. United States, 193 U.S. 197, 48 L.Ed. 679, 24 S.Ct. 436 (1904);United States v. Coplon, 88 F.Supp. 912 (1949);State v. Zazzaro, 128 Conn. 160, 20 A.2d 737 (1941); People v. Conti, 127 Misc. Rep. 244, 216 N.Y.S. 442 (1926).

            In applying these rules, we first note the "usual and ordinary" meaning of the term "compensation."  Black's Law Dictionary defines "compensation" as ". . . giving back an equivalent in either money which is but the measure of value, or in actual value otherwise conferred; . . ."4/   Webster's Third International Dictionary defines "compensation" in terms of ". . . payment for value received or service rendered."5/

             Unfortunately, however, neither of these dictionary definitions gives us any assistance in determining whether the statutory phrase "operate for compensation" covers any and all cases of persons driving one of the types of vehicles in question in connection with their jobs, or whether it covers only the more limited case where the employee's operation of such a vehicle is a distinct employment duty for which compensation is paid.  Therefore, we must turn to the second rule of construction indicated above; namely, the rule of strict construction of penal statutes.  Clearly, the statute here under examination is such a statute, for the operation of a motor vehicle in violation thereof is declared to be "unlawful."6/   Thus the rule applies -to the end that "offenses not entitled to be included shall not be prosecuted."  State v. Rinkes, supra.  In other words, referring again to the court's opinion in this same case, ". . . the punitive sanctions must be confined to such matters as are clearly and manifestly within the statutory terms and purposes. . . ."

            With this in mind, but before reaching our conclusion as to the result of application of this rule to RCW 46.20.440, we believe it appropriate to note certain further discussion  [[Orig. Op. Page 7]] which took place on the floor of the Senate during the 1967 legislative session, which bears upon the intent of the legislature.7/   Referring now to page 607 of the 1967 Senate Journal, we find the following question by Senator Rasmussen and response by Senator Washington (who, along with Senator Woodall, quoted above, was a sponsor of the bill which became the statute in question):

            "I have a further question and you can probably answer it all at once:

            "Is it true that the majority of all fatal accidents happen within close vicinity of towns or cities and then, further, so I won't interrupt you when you are making your answers, if I should want to rent a truck and take my household furniture from place to place in the city or to another city, would I be required to have this special license and pay an additional ten dollar charge in order to get this license?"

            [Senator Washington]

            "In answer to your last question, this only covers driving for hire.  It does not cover the fact that you are renting or borrowing somebody else's truck.  This involves a commercial operation in driving for hire.  In other words,you are getting your wages paid for doing the driving so it clearly does not cover your question of the 'you haul,' renting or borrowing somebody else's truck."  (Emphasis supplied.)

            This descriptive expression by Senator Washington is, of course, completely consistent with the result to be reached through application of the penal statute rule of strict construction.  In addition, the Senator's observations regarding the statutory phrase "for compensation" have suggested  [[Orig. Op. Page 8]] to us the possibility of finding some degree of analogy in the statutes of other states relating to the licensing of professional operators of motor vehicles -commonly referred to as "chauffeur's license" statutes.  We may summarize what we have found upon examining such statutes from other jurisdictions as follows:

            Some states have in the past and currently require that individuals operating on the public highways for compensation obtain a "chauffeur's license" from the state.  The analogy to be drawn between the Washington special endorsement statute and the chauffeur's license statutes arises from the fact that both are designed to promote safety on the public highways and in both situations the operator of a motor vehicle must receive compensation.

            Although there are variations in the language of the chauffeur's licensing acts, we believe that the following decisions indicate the general standards which have been used in interpreting those acts:

            The New York Schenectady County Court in People v. Dennis, 166 N.Y.S. 318 (1915), reversed a conviction which had been obtained under the New York chauffeur's law.  Jesse Dennis was employed by the New York telephone company as a "trouble man."  His duties required him to proceed expeditiously to telephones which were reported to be out of order and repair those phones.  The company supplied him with an automobile which was used to convey him and his tools and material to the locations where it was necessary to perform his work.  He received no additional compensation by virtue of his operation of the automobile.  The court in reversing the conviction concluded the chauffeur's law was not meant to apply to a person who was simply driving an automobile to convey himself and his materials to his place of work since the use of the car was merely incidental to his regular employment.

            The Texas Court of Criminal Appeals in Matthews v. State, 214 S.W. 339 (Tex. 1919), reversed a salesman's conviction for violating the chauffeur's law on the basis that his use of the vehicle was only incidental to his employment as a salesman.  At page 340 the court commented that in order to be classified as a chauffeur under the statute:

            ". . . he must operate the motor vehicle as such for compensation, wages, or hire,  [[Orig. Op. Page 9]] and it would further seem this would apply directly to the fact or relation of the driver of the vehicle for compensation, wages, or hire, and would seem to exclude the idea that the vehicle was used as an incident to carrying on the business. . . . the chauffeur must operate the vehicle as such and for the purpose of so making money, and should as chauffeur receive compensation for operating it. . . ."

            The Iowa State Supreme Court considered the same question in Des Moines Rug Cleaning Co. v. Automobile Underwriters, 245 N.W. 215 (Iowa 1932).  In that case the insurance company was denying coverage for a Mr. Wingert, who was driving the rug cleaning company's truck at the time of the accident, because he was not licensed as a chauffeur in the state of Iowa. Mr. Wingert's duties consisted of cleaning rugs, remodeling and making over carpets.  He also performed a number of miscellaneous functions at the rug cleaning company.  His duties and employment did not include the driving of a company vehicle except on those occasions when the regular driver was absent or on vacation.  At the time of the accident the regular driver was on a vacation and Mr. Wingert was driving the truck in his absence.  The court in concluding that it was not necessary for Mr. Wingert to be licensed as a chauffeur pointed out that his monthly salary was compensation for services rendered by him in the cleaning, making and laying of rugs, carpeting and linoleums -not compensation for running the truck, and the driving of the truck was not a part of his regular duties or employment but was only incidental to that regular employment.  The court specifically stated at page 218:

            "This is a case of first impression in this state upon the question presented, but the question has been passed upon in other jurisdictions relative to a similar statute.  See Matthews v. State, 85 Tex. Cr. R. 469, 214 S.W. 330; People v. Dennis (Co, Ct,) 166 N.Y.S. 318; Day v. Bush, 18 La. App. 682, 139 So. 42; 42 C.J. 743. The import of the decisions upon this question is that the term 'chauffeur' as used in the statutes, requiring a person  [[Orig. Op. Page 10]] who desires to operate a motor vehicle as a chauffeur first to obtain a chauffeur's license, means a paid operator or employee, that is, a person who is employed and paid by the owner of a motor vehicle to drive and attend to the car; and does not include operators who are not employed and paid for operating the motor vehicle, and therefore does not include an employee who receives his compensation for services rendered other than the operation of motor vehicles, although in performing such services he may incidentally operate a motor vehicle.  See, 42 C.J. 743."

            Another case that should be considered is State v. Wimmer, 186 S.E. 133 (W.Va. 1936), which also reversed a conviction of driving without a chauffeur's license.  Mr. Wimmer, the defendant, was employed as a field superintendent of an oil company and his employment required him to visit various sites which were leased by his employer.  In order to visit those sites he used an automobile which was furnished by his employer and occasionally he would haul various materials to job sites in the vehicle.  The court concluded that the operation of the vehicle was merely incidental and not a part of his employment.  In reaching that conclusion the court specifically stated at page 134:

            "Statutes of the kind under consideration must be strictly construed, and not extended by implication to persons not coming clearly within their terms. . . ."

            With this last judicial observation, we have come full circle - back again to the penal statute rule of strict construction.  Therefore, giving effect to this rule and approaching the Washington statute here under consideration in much the same manner as the courts in these several "chauffeurs' license" cases approached their particular statutes, we conclude that the proper construction to be given to RCW 46.20.440 is that in order to be operating a motor vehicle "for compensation" within the meaning of this statute, it is necessary that a person's operation of a vehicle (of the type to which the statute applies) be a distinct employment duty for which compensation is paid, and not a mere incidental or occasional part of his job.

             [[Orig. Op. Page 11]]

            Hence, we answer your general question, as paraphrased, in the affirmative.  From this it follows, with respect to the several different factual situations described in your letter, that:

            (1) An individual who is being compensated to operate a vehicle such as a professional truck driver is obviously subject to the provisions of RCW 46.20.440; his distinct job is to drive the truck.

            (2) If a person is employed for two hours as a school bus driver and for six hours as a janitor, then he is required to obtain the special endorsement because his employment as a school bus driver is distinct from, and not "incidental" to, his employment as a janitor.

            (3) A person whose compensation is in no way based on any driving he might do, who in fact does drive a vehicle incidental to his employment but not as an integral part thereof, is not subject to the endorsement requirement.

            (4) In response to your example of a person whose principal occupation is other than operating a vehicle of the type requiring an endorsement but who in the course of his employment may occasionally drive such a vehicle (e.g., a lineman for a power company or utility district) we must conclude that his presents a factual question.  As we have indicated in the preceding section it is necessary to determine whether the driving activities are a distinct part of, or only incidental to, the regular occupational duties.  If such activities are only incidental, and the individual is not compensated for the driving activity as such, then he would not be subject to the endorsement requirement.  However if the individual is receiving some form of premium pay because of the fact that he is driving in addition to his other employment duties, then he would be required to obtain the endorsement.