Opinion
April 15, 1952.
Appeal from the Circuit Court, Nassau County, Claude Ogilvie, J.
Richard W. Ervin, Atty. Gen., George E. Owen, Asst. Atty. Gen., Lewis W. Petteway, Tallahassee, David V. Kerns, Tampa, and James Whitehurst, Brooksville, for appellants.
Edward P. Mulcahy, Jacksonville, and Keen, O'Kelley Spitz, Tallahassee, for appellee.
A GMC truck and Trailmobile trailer loaded with lumber was being driven over the highways of the state when it was halted by a highway patrolman, escorted to a roadside scale, and weighed. It was found to be overloaded, and a fine was thereupon assessed. Upon failure or refusal to pay the penalty, the vehicle was seized by the patrolman and delivered to the sheriff of the county pursuant to a warrant issued under subsection 4 of Section 317.80, Florida Statutes 1949, and F.S.A.
The appellee was successful in his assault on the law in the lower court and now maintains that the forfeiture of his property under the statute would constitute deprivation without due process of law.
The chancellor ruled point-blank that the cited section of the statutes violated Section 1 of the Fourteenth Amendment of the Constitution of the United States and Section 12 of the Declaration of Rights of the Constitution of Florida, F.S.A.
The law provides that "Whenever any person violates the provisions of this section [restricting weights of vehicles and imposing penalties for overweights] and becomes indebted because of such violation in the amounts aforesaid and refuses to pay the said penalty, such penalty shall become a lien upon said overloaded motor vehicle and the motor vehicle commissioner, department of public safety or the Florida railroad and public utilities commission or any of their authorized agents, shall issue a warrant directed to all and singular, the sheriffs and highway patrolmen of this state, commanding them, and each of them, to levy upon and sell the property of the person liable for said penalty, and it shall be presumed that the owner of the overloaded motor vehicle is liable for said sum and that the said warrant may be levied thereon." (Italics ours.)
Elsewhere in the act it is provided that any officer or agent of the motor vehicle department, the department of public safety or the railroad and public utilities commission suspecting a vehicle of overweight can require the driver to stop and submit to the vehicle's being weighed. If the axle or gross weight is found excessive, the provisions of the quoted section become applicable, warrant issues, and process is put in motion to sell the property to satisfy the claim.
In the present case the procedure was followed to the point where the warrant was delivered to the sheriff, and he had seized the vehicle when the court issued the temporary injunction that was later made final.
The purpose of the legislature's invoking the police power to control the size of loads transported over the state highway system and to penalize those who undertake to place excessive burdens on their vehicles is the protection of a system of highways maintained for the use of all the people, and we think it is an appropriate field for the operation of that great power. The use of the police power to such ends, within reasonable bounds, was approved by this court as long as thirty years ago. State ex rel. Bonsteel v. Allen, 83 Fla. 214, 91 So. 104, 26 A.L.R. 735. Whether the prescribed method of determining the penalty and enforcing its collection amounts to taking property without due process is the immediate problem.
What process would be "due" or adequate, to empower the state to convert to cash the amount of the penalty imposed? To simplify the answer it seems fitting first to reduce to essentials the elements of the controversy that grow out of the halting of the suspect-truck. When it was started on its way everyone was presumed to know exactly the limit of its total legal weight. By using the highway the owner accepted the limitations and, we think, subjected himself to the consequences of overmuch burden should vehicle and driver be apprehended. The matter of fixing the amounts of the penalty under the selfsame enactment was purely a mathematical computation, and as that word implies, the product would be exact. The locus of the detection would seem to be beyond dispute. Reducing the issues to a minimum, the only factor that would appear subject to challenge is the accuracy of the scales used by the state to weigh the vehicle and its load and this question is not presented in the pleadings.
But jealous and zealous as we always are to thwart any inroads upon the sections of the constitution shielding property rights, we have the conviction that despite the circumstances revealed in this record and in the answer we will presently analyze, there is a lack of judicial process for the translation of the property into cash to pay the penalty.
Although it seems extreme to hold that the one factor not fixed or determinable to exactness by simple multiplication, namely, the accuracy of the scales maintained by the state, is a fact deserving of adjudication and requiring a hearing, nevertheless, we realize that the overall operation is, after all, the taking away from the appellee of his property with no notice or hearing whatever.
The appellee admitted in his answer that he was operating, through his authorized employee, the trailermobile in question on U.S. Highway No. 1 in Nassau County, Florida; that the highway patrolman weighed the truck and trailer, found the load was excessive, and assessed a penalty of $356; that the patrol seized the truck, trailer, and load and delivered them to the sheriff of Nassau County; that the appellee refused to pay the penalty; that the patrolman who stopped the vehicle issued a warrant to the sheriff.
It is true that it isn't every situation where a judicial proceeding is indispensable to the valid forfeiture and destruction of property used in violation of law, as the Supreme Court of the United States ruled in Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385. In that case the property forfeited was illegal fish nets, and the destruction was summary. The court observed that the line of demarcation between cases where judicial proceedings were and were not necessary was indistinct, but the court surely recognized existence of circumstances that would render such machinery needless. In that case there was afforded no means to adjudicate the character of the nets or to declare their illegal character. See Williams v. Dormany, 99 Fla. 496, 126 So. 117; Howell v. Daughet, 148 Ark. 450, 230 S.W. 559, 18 A.L.R. 63, in respect of the impounding of live stock; also Samuels v. McCurdy, 267 U.S. 188, 189, 45 S.Ct. 264, 69 L.Ed. 568, regarding contraband liquors, where the court interestingly referred to suit by injunction on the part of the owner as sufficient process of law where no provision was made for a hearing before destruction.
Upshot of our study of the matter is that according to some authorities, it is not an inflexible rule that every time property is held forfeit under the police power, there must be some sort of judicial process to that end.
Our conclusion is that summary judgment to dispose of vehicles seized under the act is not warranted, but it does not follow that the entire act should be blasted off the statute books. As we have seen, the law expressly provides that the "penalty shall become a lien upon said overloaded motor vehicle". The intervenors, the Attorney General, the Florida Railroad and Public Utilities Commission and the State Road Department, prayed in their counterclaim that the court declare the lien and direct a sale of the vehicle to satisfy it.
We see nothing amiss in such procedure and in the suit the owner would be afforded every opportunity to present his defenses, and would therefore very definitely be given the advantages of due process before reduction of the property or the bond substitute for it to cash and the payment to him of any proceeds after discharge of the penalty, and such costs as the court might fix.
While we agree with the chancellor in his ruling on the validity of the provisions for summary judgment, we feel that the decree should be reversed with directions to proceed on the counterclaim.
It is so ordered.
Affirmed in part and reversed in part.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.
CHAPMAN, J., concurs specially with opinion.
MATHEWS, J., concurs in part.
ROBERTS, J., not participating.
I fully concur in the opinion and judgment as prepared by Mr. Justice THOMAS. It is my view and conclusion that the Legislature, under the police power of the Constitution, was fully authorized to enact Subsection 4 of Section 317.80, F.S.A., and Section 1 of the 14th Amendment to the Federal Constitution; and Section 12 of the Bill of Rights to the Constitution of Florida have no application under the issues presented in this case. In the enactment of Section 317.80 the Legislature intended to protect our existing system of public roads and highways constructed by taxation at a cost of millions of dollars to the people of Florida. The Legislature is granted this power by our Constitution. If the challenged Act, supra, is reasonable and not arbitrary, then it is a proper enactment under the police power of the Constitution of Florida. See L. Maxcy, Inc., v. Mayo, 103 Fla. 552, 139 So. 121; Louis K. Liggett Co. v. Amos, 104 Fla. 609, 141 So. 153; In re Seven Barrels of Wine, 79 Fla. 1, 83 So. 627; Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789; State ex rel. Simpson v. Ackerly, 69 Fla. 23, 67 So. 232; State ex rel. Pennington v. Quigg, 94 Fla. 1056, 114 So. 859; Neisel v. Moran, 80 Fla. 98, 85 So. 346; Dutton Phosphate Co. v. Priest, 67 Fla. 370, 65 So. 282; Campoamor v. State Live Stock Sanitary Board, 136 Fla. 451, 182 So. 277; Kilgore Groves, Inc., v. Mayo, 139 Fla. 874, 191 So. 498; L. Maxcy, Inc., v. Mayo, 142 Fla. 707, 196 So. 176; Scarborough v. Newsome, 150 Fla. 220, 7 So.2d 321; Miami Bridge Co. v. Railroad Commission, 155 Fla. 366, 20 So.2d 356, certiorari denied by Supreme Court of United States, 325 U.S. 867, 65 S.Ct. 1405, 89 L.Ed. 1987.
In the Miami Bridge Company case, supra, we held that the inhibitions of our Federal Constitution upon the impairment of the obligations of contracts, or the deprivation of private property without due process, or the equal protection of the law by the State are not violated by the legitimate exercise of legislative power in securing health, safety, morals and general welfare.
The 14th Amendment was never designed for the purpose of interfering with the police power of a State in prescribing regulations to promote health, peace, morals, education, and good order of the people, but to enact legislation to develop its resources and add to its wealth and prosperity. Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923. The State may enact laws wherever the public interest demands it, and a discretion is vested in the Legislature to determine the public interest and measures for its protection. Kidd v. Pearson, 128 U.S. 1, 9 S.Ct. 6, 32 L.Ed. 346. We have numerous cases to the effect that property may be confiscated and destroyed under the police power of the State without violating the due process clause of the Federal Constitution. Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205. See 16 C.J.S., Constitutional Law, § 571, page 1159; 11 Am.Jur. 998, § 262, also §§ 302 to 305, inclusive.
I concur in that part of the opinion of Mr. Justice THOMAS that the provisions of the law with reference to summary proceedings and judgment are invalid. In this particular case if the summary proceedings are invalid, then a lien has been established by an invalid part of a law and I have difficulty in holding that such a lien established and declared pursuant to illegal proceedings is such a lien that it can be enforced in the manner attempted, that is to say, by the filing of a counterclaim asserting a lien based upon illegal proceedings.