No. 13216 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

THE STATE OF MONTANA, ex rel. SAMMONS TRUCKING INC., a Montana corporation, et al.,Relators, -vs

# - GORDON BOLLINGER, THOMAS G. MONAHAN, P.J. GILFEATHER, JAMES R, SHEA and GEORGE TURMAN, as members of and comprising the PUBLIC SERVICE COMMISSION, etal., Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Relators: Scribner and Huss, Helena, Montana Lawrence D, Huss argued, Helena, Montana For Respondents: Charles Dickman and Russell Doty, Helena, Montana Charles Dickman argued, Helena, Montana

Submitted: December 

### 3, 1975
Decided :

### JflN

## 261975 1"4: '?i ; 

### ;?'j'E Filed: !.JM;~Mr. Justice Gene 

### R. Daly delivered the Opinion of the Court:

This isan original proceeding brought by relators as

common carriers operating motor vehicles engaged in interstate

commerce and using Montana highways. Relators seek a declaratory judgment and 

### writ of mandate adjudging invalid the stateregistration fee imposed by the Public Service Commission upon such vehicles to the extent that such fee imposes a greater and conflicting requirement than that imposed by federal laws and regulations. Upon hearing counsel for relators ex parte this Court desired an adversary hearing. Such hearing was had on December 

### 3, 1975. Under Title 8, Chapter 1, Revised Codes of Montana, 1947, and 49 U.S.C. 8302, the Public Service Commission has statutory authority toregulate all "for hire" motor vehicles operating on the public highways of the state of Montana. Section 8-116(a), R.C.M. 1947, provides for an assessment of an annual fivedollar fee on each commercial motor vehicle which serves toregister and identify such vehicle. Pursuant to this authority the Public Service Commission, inNovember 1975, sent a memo toallinterstate motor carriers operating on Montana highways. The memo stated that due to legislative changes in section 8-101, R.C.M. 1947, defining motor vehicles, that term now included not only the motor carrierbut also any trailer, semitrailer or dollie attached thereto and pursuant to section 8-116(a) each suchvehic.Cr9dri- unit is subject tothe five dollarregistration fee. It 

### isupon the basis of this memo that relators seek a declaratoryjudgment and writ of mandate. With these facts inmind, the issue for this Court's consideration iswhether such a fee imposition iscontrary to federal laws and regulations and thus nonenforceable tothe extent that it creates an undue burden on interstate commerce.In State ex rel. Sammons Trucking, Inc. v. Boedecker, 158 >font. 397, 492 P.2d 919 (1972), this Court ruled that a ten dollar fee imposed on motor vehicles engaged in interstate

commerce pursuant to section 8-116, R.C.M. 1947, was a burden

on interstate commerce and therefore could not stand. Subsequently the legislature in 1973amended section 8-116 tobring it intocompliance with 49 U.S.C. $302 and 49 C.F.R. 1023.33 which require only a five dollar fee per interstatemotor vehicle. However atthe same time, the legislature also amended section 8-101(f), R.C.M. 1947, as tothe definition of a motor vehicle. Prior to amendment the definition of 

### a motor vehicle as set forth in section 8-101(f), read: 

### he term 'motor vehicle' shall include all vehicles or machines propelled by any power other than muscular used upon the public highways for the transportation of persons and/or property. II Subsequent toamendment, the definition of a motor vehicle as set forth in section 8-101(6), reads: 

## "'~otor vehicle

## ' includes vehicles ormachines, motor trucks, tractors or other self-propelled vehicles used for the transportation of property or persons over the public highways of the state, and any trailer, semitrailer, dollieor other 

# - vehicle drawn thereby. " (Emphasis supplied.) The effect then of this state's definition of 

### a motor vehicle asamended 

### is torequire a five dollarregistration fee, under section 8-116(a), on each unit of an interstate transport. That this conflictswith federal law 

### isapparent upon examination of InterstateCommerce Commission (I.C.C.) regulations promulgated pursuant to49 U.S.C. §302(a). 49 C.F.R. 1023.l(h) defines a motor vehicle tobe: 

# "*** a self-propelled or motor-driven vehicle operated by a motor carrierunder authority issued by the Interstate Commerce Commission. 11 Nowhere in the I.C.C. definition 

### is any mention made of dollies, trailers, or semitrailers asbeing motor vehicles. 

### ath her, the I.C.C. definition 

### is similar to the old Montana definition in that it applies only to the vehicle containing the mechanicaldriveunit, not towhatever 

### isbeing pulled by that power unit. In addition, the I.C.C. regulations provide at49 C.F.R. 1023.33, that where any stateprescribes registration or identification stamp fees for such motor vehicles: 

# "**

# * such fee shallnot exceed 

### $5." In conjunctionwith this fivedollarmaximum fee, federal statutory law states that any statemotor vehicle fee greater than that allowed by I.C.C. regulation constitutes an undue burden on interstate commerce. 49 U.S.C. 

### 5 302(b)(2)(d). Therefore the effect of the statelegislation, if enforced by the Public Service Commission, would be to impose a five dollar feenot only for the motor unit but also each unit towed thereby. This would impose fees substantially in excess of what I.C.C. regulations provide with the resulting undue burden on interstate commerce. There can be no doubt thatwkrea state statuteconflictswith federal legislation in the same subject area and the federal legislation 

### iswithin the competency of Congress toenact, the federal legislation 

### is controlling. InterstateCommerce Commission v. Detroit, 

### G.H. & M.R.Company, 167 U.S.633, 17 S.Ct. 986, 42 L.Ed. 306; Cincinnati, 

### N.O. & T.P.R.Co. v. Interstate Commerce Commission, 162 U.S. 184, 16 S.Ct. 700, 40 L.Ed. 935; United A.A. & A.1.W. v. Wisconsin Emp.Rel.Bd., 351 U.S. 266, 76 S.Ct. 794, 100L.Ed. 1162. In the specific area of interstate

commerce this Court in Stateex rel. Sammons Trucking Inc. v. Boedecker, 158Mont. 397, 399, 400, 492 P.2d 919 (1972), stated: "We hold the federal statuteand regulations promulgated by the InterstateCommerce Commission inconnection therewith tobe controllingover contrary provisions of statelaw." Then, as tothe specific subject of regulation of interstate commercial motor vehicles this Court, in Sammons, said:II 

### By enacting this legislation Congress has pre-empted the filed of state regulationand identification of interstate motor vehicles using Montana highways. The laws and regulations of the United States supersede the statutes of the state of Montana on the same subject to the extent that they are in conflict therewith and impose upon the Public Service Commission the duty to carry out such provisions by registration and identifi-. ' , 

### cation of interstatemotor vehicles operated by common carriersusing the highways, ofMontana in the manner prescribed by the federal statutes and regulations

# * *.I1 

### See also Eisenman Seed Co. v. Chicago, Milwaukee, St.P.& 

### P.R,R., 161Mont. 197, 505 P.2d 81. Accordingly,we find the provisions of 

### 49 U.S.C. §302(b) and 49 C.F.R. 1023 are controlling as to the registration and identification of motor vehicles engaged in interstate commerce using the highwaysof Montana, and to the extent that Montana statutes impose greater conflicting requirements, they constitute

an undue burden on interstate commerce and must yield to federal authority. This Court specifically holds the statedefinition of a motor vehicle in section 8-101(6), R.C.M. 1947,relied upon by the Public Service Commission, expressly conflictswith federal law and the state may require a feeno greater than five dollars per motor vehicle,with the definition of suchmotor vehicle not to include the dollie, trailer or semitrailer for purposes of section 8-116(a), R.C.M. 1947. This opinion constitutesa declaratory judgment. Let

a peremptorywrit ofmandate issue. Relators seek attorney fees in this cause. We decline to grant the same as the Public Service Commissionwas only following the command of the legislature,