VEHICLE MILEAGE FEE ON AUTO STAGE OPERATIONS

VEHICLE MILEAGE FEE ON AUTO STAGE OPERATIONS.

Vehicle mileage fee, under section 14, chapter 269, Laws of 1951, is payable upon all operations by auto stages over the public highways of this state.  Such fees are payable on travel in national parks but not on travel in Fort Lewis and certain other government areas.

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                                                                    June 6, 1951

Washington Public Service Commission
Insurance Building
Olympia, Washington                                                                                                       Cite as:  AGO 51-53 No. 62

Attention:  Jerome K. Kuykendall, Commissioner

Gentlemen:

            We have your request for an opinion upon the following questions:

            1. Is the term "public highways" as used in section 14, chapter 269, Laws of 1951, within the definition of public highways contained in section 1, chapter 188, Laws of 1937 (Rem. Rev. Stat. Vol. 7A, § 6312-1 (x))?

            2. Should the amount payable under section 14, chapter 269, Laws of 1951, be computed solely upon the basis of miles traveled on regularly scheduled routes?

            3. Should auto stage operations in such areas as Rainier National Park, Fort Lewis, and other areas owned by the Federal government be subject to the vehicle‑mile payment under chapter 269?

            Our conclusions may be summarized as follows:

            1. The term "public highways" as used in section 14, chapter 269, Laws of 1951, has the meaning of that term as defined by section 1, chapter 188, Laws of 1937 (Rem. Rev. Stat. Vol. 7A, § 6312-1 (x)).

             [[Orig. Op. Page 2]]

            2. The amount payable under section 14, chapter 269, Laws of 1951, shall be computed upon all operations by auto stages over the public highways of this state.

            3. Auto stage operations in Rainier National Park and Olympic National Park are subject to payments imposed under section 14, chapter 269.  Operations within Fort Lewis are not subject to such payment.  Operations in other areas owned by the Federal government may or may not be subject to the payments specified under section 14, chapter 269, Laws of 1951, according to the principles outlined in this opinion.

                                                                     ANALYSIS

            Section 14, chapter 269, Laws of 1951, provides as follows:

            "A new section is added to chapter 46.16 RCW, to read as follows:

            "In addition to the fees required by section 13, operators of auto stages with seating capacity over six shall pay quarterly, at the time they file gross earning returns with the public service commission, the sum of fifteen cents for each one hundred vehicle miles operated by each auto stage over the public highways of this state:  Provided, That in the case of each auto stage propelled by steam, electricity, natural gas, diesel oil, butane, or propane, the payment required hereunder shall be twenty cents per one hundred miles of such operation.  The commission shall transmit all such sums so collected to the state treasurer, who shall deposit the same in the motor vehicle fund.  Any person failing to make any payment required by this section shall be subject to a penalty of one hundred per cent of the payment due hereunder, in addition to any penalty provided for failure to submit a quarterly report.  Any penalties so collected shall be credited to the public service revolving fund."

            Section 1, chapter 188, Laws of 1937, provides in part as follows:

             [[Orig. Op. Page 3]]

            "The following words and phrases, wherever used in this act, shall have the meaning as in this section ascribed to them, unless where used the context thereof shall clearly indicate to the contrary:  * * *

            "'Public Highway.'  Every way, lane, road, street, boulevard, and every way or place in the State of Washington open as a matter of right to public vehicular travel both inside and outside the limits of incorporated cities and towns."

            Chapter 46.16 RCW was derived in part from section 15, chapter 200, Laws of 1947 (§ 6312-17 Rem. Supp. 1947) which amended section 17, chapter 188, Laws of 1937, as amended by chapter 224, Laws of 1941.  Section 14, chapter 269, Laws of 1951, is therefore an addition to an act amending chapter 188, Laws of 1937.  Accordingly, the definition of public highways as set out in chapter 188, Laws of 1937, is applicable to that term as used in section 14, chapter 269, Laws of 1951.

            You have inquired whether auto stages must compute and pay the fifteen cents per one hundred vehicle miles on travel between garages and terminals and at other times when passengers are not carried and the auto stage is not operating on its routes.  Section 14 imposes an excise at a specific rate for each one hundred vehicle miles operated by each auto stage having a seating capacity over six upon the public highways.  The language of this section is clear and unambiguous and where such language is employed there can be no room for statutory construction.  Under the simple terms of the statute no exceptions are contemplated and none may be implied.  We are of the opinion, therefore, that payments under section 14 shall be computed upon operations between garages and terminals and at such times as when passengers are not carried and the auto stage is not operating on its regular route, as well as upon travel over regularly scheduled routes.

            You have also inquired whether certain areas owned by the Federal government over which auto stages may operate should be included in the computation of vehicle miles upon which payments may be exacted under the act.  The answer to this question depends upon the particular federal area involved.  It is our understanding that section 14 is essentially, if not entirely, a revenue measure rather than a license.  It is imposed in addition to other licenses and fees and is not merely an incident to the taxing power but is an exercise of that power.

             [[Orig. Op. Page 4]]

            Rainier National Park was established by act of Congress March 2, 1899, chapter 377, § 1, 30 Stat. 993, U.S.C.A. Title 16, § 91.  By act of Congress June 30, 1916, chapter 197, § 1, 39 Stat. 243, U.S.C.A. Title 16, § 95, the Federal government accepted the act of the Washington legislature, being chapter 92, Laws of 1901 (Rem. Rev. Stat. 8110) ceding exclusive jurisdiction over the territory to the United States and saving to the state of Washington "the right to tax persons and corporations, and franchises and property, on the lands included in said park."  The authority of the state to impose excise taxes on corporations doing business in Rainier National Park was upheld in Rainier National Park Co. v. Martin, 18 F. Supp. 481.  Affirmed 302 U.S. 661, 58 S.Ct. 478, 82 L.ed. 511.  Rehearing denied 23 F.Supp. 60.

            Section 14, chapter 269, Laws of 1951, requires payment on a vehicle‑mile basis for auto stage operations "over the public highways of this state."  The definition of public highways which we have held applicable to section 14 includes every way in the state of Washington open as a matter of right to public vehicular traffic.  The act of March 2, 1899, establishing Rainier National Park, recites that certain areas are "set aside as a public park to be known and designated as the Mount Rainier National Park for the benefit and enjoyment of the people."  Where roads and highways have been established in national park territory they have been dedicated under the terms of the act of March 2, 1899, for the benefit and enjoyment of the people.  An appropriate and proper enjoyment of roads and highways would, of course, include public vehicular traffic.

            The roads and highways in Rainier National Park are jointly maintained by the state and federal government under state and federal statutory authority and agreements made thereunder.  Since the excise imposed by section 14, chapter 269, Laws of 1951, is upon the privilege of using the public highways of this state, it may be charged against the use of highways which are, in part at least, maintained or constructed by the state, although the fee title to such highways is in the federal government.  We consider the roads and highways in the national park area to be "in the state of Washington" within the definition of section 1, chapter 188, Laws of 1937, and the purpose of section 14, chapter 269, Laws of 1951.

            The Olympic National Park was established and dedicated under the same provisions and reservations as Rainier National Park.  See Act of Congress, June 29, 1938, chapter 812, § 1, 52 Stat. 1241, U.S.C.A. Title 16, § 251; and Act of March 6, 1942, chapter 151, § 1, 56 Stat. 135, U.S.C.A. Title 16, § 256, accepting the act of the legislature approved March 8, 1941, being chapter 51, Laws of 1941, which ceded to the United States exclusive jurisdiction over the  [[Orig. Op. Page 5]] park territory, subject to the same reservations cited in the act relating to Rainier National Park.  For these reasons we hold that travel through Rainier National Park and Olympic National Park by auto stage is not exempt from the payments imposed under section 14, chapter 269, Laws of 1951.

            In the case of the Fort Lewis military reservation a different situation obtains.  The act of the legislature donating certain lands in Pierce county to the United States government for military purposes ceded exclusive jurisdiction, both legislative and judicial, to the federal government.  See chapters 3 and 4, Laws of 1917.  The state reserved only the right to serve civil and criminal process within the military reservation.  Under the United States constitution, Article I, section 8, Congress has the power "to exercise exclusive jurisdiction * * * over all places purchased by the consent of the legislature of the state in which the same shall be for the erection of forts, magazines, arsenals, dock yards, and other needful buildings."

            Our court has held that the Fort Lewis military reservation is not "within the state of Washington."  Concessions Co. v. Morris, 109 Wash. 46, 186 Pac. 655.  Moreover, the establishment of the Fort Lewis military reservation, not being dedicated to the use and enjoyment of the people, cannot be said to contain any roads or highways which are open as a matter of right to public vehicular travel, even if such roads or highways might be considered to be within this state.  Travel in such an area, therefore, should not be computed in determining payments due under section 14, chapter 269, Laws of 1951.

            Other areas owned by the federal government, such as dam projects, Indian reservations, and other military installations in this state must be examined according to the appropriate state and federal statutes in order to determine whether highways within such areas come under the definition of section 1, chapter 188, Laws of 1937 (Rem. Rev. Stat. Vol. 7A, § 6312-1 (x)).  The principles outlined above should be applicable to each case.

Very truly yours,

SMITH TROY
Attorney General

LAWRENCE K. MCDONELL
Assistant Attorney General