California v. Buzard

PETITIONER:California
RESPONDENT:Buzard
LOCATION:General Petroleum Corporation

DOCKET NO.: 40
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 382 US 386 (1966)
ARGUED: Nov 16, 1965
DECIDED: Jan 18, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – November 16, 1965 in California v. Buzard

Earl Warren:

Number 40, California, Petitioner, versus Lyman E. Buzard.

Ms. Maier.

Doris H. Maier:

Mr. Chief Justice, and may it please the Court.

The question presented in this case which is a companion case to snap is whether a nonresident serviceman having a permanent duty station in California is authorized to operate his motor vehicle on California highways without the payment of the California fees when he has paid no fees to his resident state but the privilege of operating this vehicle.

William J. Brennan, Jr.:

Well, and he didn’t play them, there was residence state because there was no such fee required or —

Doris H. Maier:

No.

Your Honor, the California Court, the Supreme Court answered this question in the affirmative basing its decision on the provisions that Section 574 subdivision 2 in finding that the fee in the State of Washington was not required until he drove on the highways.

They so interpreted the word “require” to mean that it was not.

William J. Brennan, Jr.:

Well, that’s not what I’m trying to get at.

This is a case where the whole state is California wants to get the registration fees — is this the registration fee or a license —

Doris H. Maier:

This is so.

There is no separate registration fee as registration and license (Voice Overlap) —

William J. Brennan, Jr.:

But they want to get it because they say the State of Washington under its law even though the State of Washington could not get it since he wasn’t driving the car inside Washington, is that it?

Doris H. Maier:

That is correct.

Now, —

Earl Warren:

Had the — had the captain taken out of the license in any state Ms. Maier?

Doris H. Maier:

Yes.

If I will give you the factors Your Honor —

Earl Warren:

Very well.

Doris H. Maier:

— now you’ll take out the license in Alabama.

Captain Buzard in 1957 was recalled to active duty with the Air Force, he was a resident of the State of Washington.

He was assigned as a permanent duty station as his duty station to Castle Air Force Base in California.

In September of 1959, he was then held to an office — squadron offices training school in Alabama for temporary duty.

While in Alabama, he purchased a demonstrative car on which the license and fees have been paid.

The license plates there were valid until September of 1960.

At the completion of his temporary duty at the end of December in 1959, he drove this car back to California.

Early or rather late in February of 1960, he was stopped by the California Highway Patrol rejecting out of state licenses.

They questioned him about this Alabama license.

He then went to the Motor Vehicle Department in California to discuss registration and payment of the fees.

Earl Warren:

Then what he —

Doris H. Maier:

He discussed registration and the payment of the fees —

Earl Warren:

Oh, yes.

Doris H. Maier:

— at the — he did not, however, pay either the registration or license fee.

Thereafter, a citation was given him and a complaint filed and a 4000 of the California Vehicle Code.

In the summer, in private trial of case, he did get to State of Washington and registered his vehicle in there.

However, after the complaint was filed, the defendant demurred has sought to hold trial by writ of prohibition.

This order was denied and the denial affirmed by our District Court of Appeal in the case of Buzard versus Justice Court then the trial was held and petitioner — respondent was convicted of the misdemeanor to register and pay the license required.

He was sentenced to a fine which the judgment was suspended.

On appeal to the Superior Court, the matter was then certified under California rules because of the constitutional questions involved to the District Court of Appeals which affirmed to judgment.

A timely petition for hearing with the California Supreme Court was filed and the California Supreme Court reversed its judgment and the petition for certiorari was filed.

William J. Brennan, Jr.:

What’s the amount involved here?

Doris H. Maier:

The amount involved — you mean the amount of the fine, Your Honor?This is a criminal statute.

William J. Brennan, Jr.:

No, I wasn’t thinking of the fine, maybe —

Doris H. Maier:

Oh, the basic licensing?

William J. Brennan, Jr.:

Yes.

Doris H. Maier:

Would have been approximately $100.

William J. Brennan, Jr.:

$100.

Doris H. Maier:

There would have been initially about a dollar difference between the total fee in California and Washington.

But the principle involved is that involving interpretation of the proviso to the Soldiers and Sailors Relief Act contained in subdivision.

Earl Warren:

What trial was it Ms. Maier?

Doris H. Maier:

It was an automobile ’58, ’59, suppose 1959.

Earl Warren:

Suppose that have been a Cadillac what would be — what was the license fee had been?

Doris H. Maier:

It would have been depended 2% of the market value of the car.

Earl Warren:

Market value.

Doris H. Maier:

Yes.

Earl Warren:

And this is —

Doris H. Maier:

But the California tax, Your Honor, has been characterized by the California Court, as a privilege tax.

In Ingels versus Riley, 5 Cal.2d 154, the Court stated, “We have no hesitancy in declaring that the charge involved is one imposed and only for the motor vehicles for the privilege of using the highways of the state and is not in nature a property tax”.

Again, at page 161 of that opinion, the Court stated, “In addition to the characterization of the charge in the statute as a privilege tax and examination of the terms of the Act plainly indicates that the charge is an excise for the privilege of using the highways and not a tax on motor vehicles as personal property.

Earl Warren:

The Supreme Court has — has determined that —

Doris H. Maier:

That is (Voice Overlap).

Earl Warren:

— in that way?

Doris H. Maier:

That is true.

Earl Warren:

Well, wasn’t this tax — wasn’t this registration fee fixed in lieu — in lieu of the property taxes in the counties (Voice Overlap) and don’t they now return a certain amount of this — of this fee to the counties in lieu of the counties letting any ad valorem tax?

Doris H. Maier:

Your Honor, it is fixed on value that it’s a certain percentage of it is back for purposes of maintaining the roads throughout the state and also law enforcement too.

Earl Warren:

Yes, but you do — you do sub — sub grant this money much of it to the counties, do you not?

Doris H. Maier:

That is true (Voice Overlap) the population.

Earl Warren:

And the counties do not have any personal property tax on automobiles at all?

Do they?

Doris H. Maier:

No.

This is in lieu tax.

Earl Warren:

Yes.

Then it is to that extent an ad valorem tax, isn’t it?

Doris H. Maier:

Well, Your Honor it would be an ad valorem tax to the extent of basic value.

Earl Warren:

Like what?

Doris H. Maier:

To the extent its basic value but basically the tax is a privilege tax though it may be measured by the value.

It’s still is a privilege tax for the use of highways of the state.

Earl Warren:

Well, I was there when the — I was there when the counties levied an ad valorem tax on automobiles as personal property and they were very difficult for the counties to levy this tax that automobiles are moving all over, they couldn’t catch them.

And so, they went to the legislature, as I recall it, and the legislature incorporated their ad valorem tax into the registration taxes with the state court and then the state collected back the amount of money that the counties would have — would have received on an ad valorem basis, am I wrong in that?

Doris H. Maier:

I — I don’t believe you are, Your Honor.

Earl Warren:

I was just wondering if this is really just a license tax or whether it is also an ad valorem tax like the Mississippi one where they have to pay the ad valorem tax in order to get the registration certificate.

Doris H. Maier:

Well, we — there is no question that they have to pay this tax in order to register the cost.

But California has characterized it as a privilege tax because there is a difference.

In this tax, if you only use or attain your car certain months of the year and used the highways, then the tax is lowered depending on the use of the highway.

For example, if it were only 10 months, you would not pay the total 12 months tax but just the period of 10 months.

William J. Brennan, Jr.:

That suggests Ms. Maier, in this, I take it for the purpose of instruction of the federal statute, the state label would not to be conclusive, would it?

Doris H. Maier:

No —

William J. Brennan, Jr.:

But you call it — you said —

Doris H. Maier:

— that —

William J. Brennan, Jr.:

— it’s a privilege tax (Voice Overlap) but I gather for —

Doris H. Maier:

Well, this — Your Honor as I understand, this Court has the ultimate right to determine the nature of any tax regardless (Voice Overlap) —

William J. Brennan, Jr.:

Well, I’m wondering for the purposes of the language in the federal statute (Voice Overlap) property taxes whether you were labeled privilege tax would conclude us on whether or not it’s spelled within the federal statute would suppose there.

Doris H. Maier:

Well, under the exemption provision of the federal statute that is too big.

The term “taxation” shall include but not be limited to licensees’ fees or excises imposed in respect to motor vehicles with their use thereof.

Now, regardless to the category of tax that before within that but our — our disagreement with the state — the Supreme Court of the State of California has been based in their interpretation of the proviso.

They have read it so that unless the charge is actually levied on the respondent, he would be not subject to the charge of the state in which he was stationed.

We believe that this interpretation of the Soldiers and Sailors Relief Act is erroneous that Congress did not intend to exempt servicemen from the payment of registration and license fees all over the United States, because, virtually all of the motor vehicle provisions in there — of the various states are depended on the use of the highway and that the fee only comes actually into force when the use is made of the particular highway of that state.

And therefore, we say that Congress when it enacted this proviso was well aware of this provision and the provisions of this state statutes only met to exempt servicemen who were — had already paid the motor vehicle fee charged in the resident state.

Under our interpretation, the term “required” as used in the Act means that this established or charged by the resident state.

The fact that the Washington statute provided that the motor vehicle fees were not payable until the vehicle was operated upon the state’s highways, we say, does not compel a contrary view.

For vehicle fees generally are considered a privilege tax and not due and payable until the vehicle was operating within the taxing state.

The statute in the various states had been set forth in Appendix A to petitioner’s brief.

We believe that Whiting versus the City of Portsmouth the Virginia case, it has reasoning that it’s applicable to this.

In that case, the servicemen stationed in Virginia was a resident in Colorado, purchased a car in Virginia, paid his registration and license fees in Virginia.

He claimed exemption from the City of Portsmouth’s tax which taxed the motor vehicle operating, kept and use in the city.

The Court there held that the imposition of the Portsmouth tax was proper since he had not paid the taxes levied by his home State of Colorado.

Subsequent to this case, Congress did amend, Section 574 of the Soldiers and Sailor’s Relief Act but did not in any way change the proviso.

Therefore, we plea that under the general provisions of statutory construction it may be presumed that Congress was aware of the judicial decision and intended to leave that construction of statute the unchanged.

We would call the attention of this Court to the fact that the California Supreme Court’s decision would place in virtually impossible burden on the administrative agencies whose duty is to carry out these statutes.

The administrative agency would have to determine in the case of each serviceman what the law of his home state requires and whether he had complied with that prior to granting or denying an exemption from the California statutes.

We submit that this should be replaced by what we believe was the — an objective standard adopted by Congress namely whether he had paid the tax in his home state or license in his home state prior to being exempted by the state in which he was stationed.

The decision of the California Supreme Court would further render effective, motor vehicle registration statutes because we would have no provision for a serviceman registering and paying his fees if he did not have to pay in the state where he was stationed where perhaps he would not go back to his home state and operate his vehicle on the roads of that state.

Safety dictates that motor vehicles should be registered for purposes of proper identification in case of accidents or injuries to occupants and also in order to protect innocent purchasers.

If a car is ineffectively licensed, it is not only tempting to car theft, thief but becomes a public hazard in case of an accident.

We submit that it was not the intent of Congress to completely eliminate servicemen from liability for fees for the use of the highways of the state.

The problems presented by the respondent that the servicemen would encounter if he were subject to tax of states are not correctly set forth.

Petitioner, respondent, pardon me, in this case had he pay the license and tax charged by his home state, would have been exempt from the provisions of all other state statutes.

He then would have a necessary license and been able to travel throughout the states without the problems here presented arising.

Also, a temporary as the respondent has raised the question of the burden that might be placed on the servicemen going through numerous states that each state would levy a tax.

This is not correct, because each state has a provision for the temporary use of its highways without the payment of any fees by nonresident.

Doris H. Maier:

We request that this Court should reverse the decision of the California Supreme Court.

William J. Brennan, Jr.:

Mr. Keister or Mr. Greer, I beg your pardon.

Thomas Keister Greer:

Mr. Chief Justice, may it please the Court.

The posture of this case is such that I don’t believe the Court can reach the issue under the Soldiers’ and Sailors’ Relief Act from which the ruling assault by the people of the State of California.

I must respectfully submit from an examination of the record that the writ of certiorari was improvidently sold and that there are jurisdictional reasons why no full examination of the Soldiers and Sailor’s Relief Act can be reached in the case as it now stands.

An explanation of the jurisdictional problem requires me to touch very briefly on the Structure’s Statute law in California.

David Dudley Field, as we all know, pioneer to New York Civil Practice Act in 1848, the first of the reformed codes, his brother Steven Field, Mr. Justice Field later of this Court was equally interested in the issue of law reform and the two brothers together had drawn a code of substantive procedure which New York wouldn’t adopt and California did adopted.

California adopted four codes as the Chief Justice knows and I’m going to go into this very briefly because it may not be submitted to the other members of the Court.

California adopted four separate codes of 1872, the Code of Civil Procedure based largely in New York, the Civil Code, the Probate Code and the Political Code, now they were always separate, they were always autonomous and those four codes are today 25 separate and autonomous codes.

One of them is the Vehicle Code.

The California Vehicle Code is adopted in 1935.

The statute creating it is entitled “An Act to Establish a Vehicle Code” thereby consolidating and revising a law relating to vehicles and vehicular traffic.

California has a separate code called “The Revenue and Taxation Code”.

It was enacted and adopted as an entirely separate feature of California’s Code law of its statutory structure in 1939 and Section 1 of that code states as follows, this Act shall be known as the Revenue and Taxation Code.

Now, the essence of this case in the posture and which this Court may find is this, that the Vehicle Code provides in Section 9250 for a registration fee, a registration fee of $8.

“A registration fee of $8 shall be paid to department, that’s the Department of Motor Vehicles for the registration of every vehicle of a type subject to registration.”

And the vehicle go — code goes further in Section 4850 and issues a mandatory demand on the Department of Motor Vehicles have said this, the department upon registering a vehicle shall issue to the owner to suitable license plates or devices for motor vehicles.

The plates or devices shall identify the vehicle for which they’re issued for the period of their validity.

Now, that’s a very different thing from which the learned and gracious lady who appears here for the State of California has been talking about when she expresses and the Attorney General of California expresses such great concern that there might have been an unlicensed and unregistered vehicle, a vehicle not properly identified with what we come and we referred to as license or registration plates.

There is an $8 registration fee under this first statute in the Vehicle Code, there is an expressed mandatory order to the Department of Motor Vehicles of when that $8 is paid, license plates shall then be issued the type that we’re familiar with, two of them to be put on the front of the and back of the automobile.

Now, Captain Buzard, a pilot in the strategic air command who according to a quick quote that I made this morning has been stationed in about 10 different bases at Lackland at San Antonio, at Castle, at Randolph and who now contrary to what I am certain as the inadvertent expression in the briefs of the Attorney General of California is not permanently stationed in California.

He isn’t — he is now flying a strategic Air Force airplane out of an Air Force base in Omaha.

Captain Buzard was tried under Section 4000 of the Vehicle Code, that’s the jurisdictional posture of this case.

That’s the case as it comes before Your Honors.

Section 4000 states this, “no person shall drive, move or leave standing any motor vehicle, trailer, semi-trailer, pole or pipe dolly or auxiliary dolly upon a highway unless it is registered and the appropriate fees have been paid under this code”.

Those are the three keywords, those are the reasons why I have to respectively suggest to the Court that I think the writ of certiorari was improvidently applied for by the Attorney General of the State of California because the in lieu taxes to which the Chief Justice made reference, the 2% tax which would’ve amounted here to some hundred dollars are at in no place referred to in the California Vehicle Code.

They are only in the Revenue and Taxation Code and their ad valorem quality is, I respectfully submit, adequately demonstrated by the fact that the name of the code and which there appear is called Revenue and Taxation.

They say, Section 10751 of the Revenue and Taxation Code, a license fee is hereby imposed for the privilege of operating on the public highways of the state, any vehicle of type which is subject to registration under the Vehicle Code.

The annual amount of the license fee shall be a sum equal to 2% of the market value of the vehicle as determined by the department.

Let me stop right there and interpolate if I may.

Thomas Keister Greer:

This captain was from Washington, he was born in Washington and like most of us when he had a chance he went home to Washington.

He had — he had driven not on product of his own but under orders from Castle Air Force Base down to Maxwell Air Force Base in Alabama.

The record reveals he had driven a car down there, a car with Washington license plates.

Well, that was in September, the Court convict judicial notice that the new cars were coming on the market.

He had a chance to buy a demonstrator which had belonged to a dealer in Alabama license tax zone.

He was so careful, has even get himself in Alabama driver’s license.

He came December the 19th, his temporary duty of almost four months expired and he drove himself his automobile with his wife back to his wife’s family somewhere in the Midwest and arrived back in California on New Year’s eve, New Year’s eve of 1959.

On the 26th day of February less than two months later, there was a roadblock right outside Castle Air Force Base, near Merced — Merced County, California, Captain Buzard was stopped.

This controversy grew out of that.

The point I want to make is that that summer he went home.

When he went home, he paid the Washington tax, he got himself properly — the — the proper fees were paid in the State of Washington, payment of them in California would in no way have immunized him from the fee — from proper fees in Washington because under Section 574, it’s only the payment of the taxes and enormously restate that immunized taxation.

So, if he had to pay that 2% of that 1959 automobile to California then the very second that this officer got home, the same year he had to pay it again and that looks — may it please the Court, it looks very suspiciously like triple taxation.

One payment in Alabama where he was on duty, one payment in California and another one as soon as he went home the very sort of vulcanization that the Congress sought to avoid and so — so very likely to happen to these men who under constant orders to change from place to place.

William J. Brennan, Jr.:

Mr. Greer, may I ask you a question from confusion.

You started out I thought in effect to argue that this case ought not be here because it rested on an adequate state ground whether it was a prosecution under the Vehicle Code and therefore that we don’t have any question related to the Soldiers’ and Sailors Relief Act, is that part of your argument?

Thomas Keister Greer:

If Your Honor please, the Court is quite correct on — I will — I will resume that point.

I think the notion —

William J. Brennan, Jr.:

Well, (Voice Overlap) I don’t find that in your brief, you didn’t make that argument in your brief.

Thomas Keister Greer:

No, I didn’t.

If the Court please, I — these briefs were prepared by my old law firm in California and — and were sent to me.

The point that this — the point about this prosecution not being comprehended by Section 4000 of the Vehicle Code is certainly not spelled out in the brief.

I think in — I think it can be fairly said that it’s in the brief but it’s in —

William J. Brennan, Jr.:

Well, I don’t find — I don’t find it.

Thomas Keister Greer:

It’s a jurisdictional point, if Your Honor please.

William J. Brennan, Jr.:

But the California Supreme Court — are we suppose to read that opinion as resting on — that this was an improper prosecution under the Vehicle Code?

Thomas Keister Greer:

No, if Your Honor please, the California Supreme Court said that the man was not guilty under Section 4000 of Vehicle Code.

They went further and why — when I think was a dictum although it was a very excellent dictum.

They held that the Soldiers and Sailor’s Relief Act in any event barred this 2% tax.

I think if we examine the record that we have to see that there is no way under which he could’ve been prosecuted for not paying the 2% tax under this warrant.

The Vehicle Code itself says nothing of the ad valorem tax or the privilege tax as opposing counsel calls it.

Thomas Keister Greer:

The Vehicle Code refers to no fee except an $8 registration fee.

Hugo L. Black:

He paid that fee?

Thomas Keister Greer:

He tried to pay it, if the Court please, and was frustrated in paying it.

I’m going to come to that just a moment, I’ll take if it not if the Court wishes.

The Attorney General says this that this unanimous decision of the California Supreme Court all seven justices sitting en banc frustrates those purposes of registration designed to promote motor vehicle identification in aid of proper law enforcement.

The decision authorizes nonresident servicemen to operate their vehicles in the state without the registration of the vehicle or the obtaining of license plates since California has no statutory provisions for the registration of such vehicles and issuing of license plates without the payment of fees, that’s in the Attorney General’s reply brief.

But the only provision under Vehicle Code about license plates is Section 4850 and the only provision for the payment of fees is Section 9250 and the only fee is $8.

There is nothing in the Vehicle Code about the 2%.

Now, this case has an earlier history which I think buys the Attorney General.

Mr. Robinson, counsel for Captain Buzard in California sought a writ of prohibition, sought prerogative relief from the District Court of Appeal in California to prevent this prosecution for a trial.

He was not successful in that prerogative writ proceeding.

The District Court of Appeal denied that saying the case should be tried and that it might appear when the case was tried that the man could’ve paid the registration fee, that it didn’t sufficiently appear in the prerogative writ proceedings that he had tried to pay the fee.

So, that opinion I think came down in January of ‘62 and this trial thereafter proceeded, but in its opinion, the California District Court of Appeal and this is itself a final opinion and on this point a final exposition of California law.

The California District Court of Appeal in the case of Buzard against Justice Court said actually vehicle license fees are fixed by the Revenue and Taxation Code, Sections 10751, et seq.

Furthermore, it is not the purpose of Vehicle Code Section 4000 to fix or collect the fee.

The registration of motor vehicles operate within the state is required for the purpose of protecting innocent purchasers against fraud, to provide identification of responsible persons in case of a vehicular accident and as a deterrent vehicle theft.

And the Court went on to say this, “The registration statute has an entirely different purpose from the license fee statute and it is clearly severable from them.”

Now, that as to that point, there is a very considerable clash between myself and the Attorney General for the State of California.

The Attorney General’s position is that you have to pay the excise tax or the privilege tax or the ad valorem tax.

We come and we refer to it as an in lieu tax.

Before you can register the car, if Your Honors please, the contrary is the fact, the Buzard case so establishes and so does the case of — from which the present proceeding is on appeal.

Now, counsel representing the State of Mississippi said they might have to be forced to the same sort of thing that have been done here for the State of California, that is criminal proceedings and he thereby pointed out something that distinguished this case, it makes it different from all the others that have been before the Court or that are pending.

This is a criminal case, an Air Force captain has — had a criminal complaint filed against him and has been fined $50.

He was suspended for six months on his good behavior but it’s a very serious thing on an Air Force career officer’s record.

The record in this case shows that he has been on active duty except for one year since 1951.

It’s a criminal case bottomed on Section 4000 of the Criminal Code — 4000 of the Vehicle Code the narrow issue is whether there was any evidence to sustain the conviction.

The California Supreme Court held that there was none, the statute says, “No person shall drive, move, relieve standing a motor vehicle upon on a highway unless it’s registered and the appropriate fees have been paid.”

Under this code, the — both the original complaint and the amended complaint filed in 1960 are in the record, the amended complaint appears have been right carefully drawn by the district attorney and it says this, I’ll paraphrase the first sentence, Steven B. Galvin, Merced County District Attorney who being sworn complaints and accuses one information and belief, said the defendant of a misdemeanor to with failure to register motor vehicle and pay appropriate fees in violation of Section 4000 Vehicle Code of State of California.

Now, it would be interesting and I would certainly think beneficial to have an examination of whether California could in fact collect that $100,000, that 2% from this officer who let’s say already paid it once in Alabama and paid it again in Washington.

But —

Byron R. White:

How much did you say?

Thomas Keister Greer:

That would be 2% tax for at least.

Hugo L. Black:

Hundred dollars, 2% of hundred thousand?

Thomas Keister Greer:

Did I say hundred thousand?

Well, then if the Court please my mind is up on which higher level on the — of the money involved this morning although here in this case, it may very well involve $100,000 servicemen all over the country but it only involves a $100 and a $50 fine to Captain Buzard.

Abe Fortas:

Mr. Greer, may ask.

Your argument on this point requires that the reference to this code in Section 4000 be limited to the Vehicle Code?

Thomas Keister Greer:

Yes sir.

Abe Fortas:

And you haven’t brief that I take it.

Thomas Keister Greer:

I have to ask the Court to take judicial notice of the code structure in California.

Abe Fortas:

Is that your only basis — your only authority for that statement?

Thomas Keister Greer:

That the language under this code in Section 4000 of the Vehicle Code refers only to the Vehicle Code?

Abe Fortas:

Yes.

Thomas Keister Greer:

Well, I think the title of the Vehicle Code which I cited earlier which states that title of the statute and act to establish a Vehicle Code thereby consolidated in revising the law relating to vehicles and vehicular traffic.

Abe Fortas:

Well, I don’t know perhaps undisputed, perhaps your point is undisputed but presently we don’t have any authority call except for your oral argument, is that right?

Thomas Keister Greer:

I think if the Court please that the — that a substantial portion of what I’m now saying is not spelled out in the briefs here before filed and the reason that I have taken this position this morning is because I do think the point is jurisdictional — serious constitutional problems Mr. Justice Fortas, if an inquiry could be made as to whether or not these taxes under the Revenue and Taxation Code could’ve been exacted under a Vehicle Code prosecution.

The Revenue and Taxation Code not being referred to in the Vehicle Code Section, there is no way that I know in which they could have gone into even by consent.

There is no jurisdiction although no basis whatever for a prosecution on anything other than failure to register and pay the $8.

Earl Warren:

Is there any cross reference between the Vehicle Code and the Revenue and Taxation Code which says that the — the so-called fee in — in the Revenue Code shall be included in the motor vehicle license fee?

Thomas Keister Greer:

No, Mr. Chief Justice.

Earl Warren:

There isn’t any cross —

Thomas Keister Greer:

And let me say this, that I have — I have for the last week or two, I have been going over those codes right assiduously and there is — there is no statement such is this in the Vehicle Code.

Before you can register or words to that effect or before you — long of paying $8, you also got to pay the 2% required by the — by Revenue and Taxation Code, no Mr. Chief Justice.

There is no such — there is no such statute in California.

Earl Warren:

I’m sure that is the practice.

I just wonder where they derive that, where they derive their authority to do that because it’s done — had been done ever since that it was Revenue and Taxation effects and came in to being.

Thomas Keister Greer:

It — I think that if Your Honor please that it is the practice but we are here talking of course about a criminal prosecution.

Earl Warren:

Yes.

Yes, I understand.

Thomas Keister Greer:

And the State of California, the people of the state which initiated this prosecution chose to limit it to Section 4000 of the Vehicle Code and the Vehicle Code I vouch to Your Honor that I have searched it most carefully and that there is no cross reference.

Thomas Keister Greer:

Now, did I say — I would very much like to see this Court if it could hold that this Air Force officer was not required to pay that 2% in lieu tax which has — which the Attorney General refers to as a privilege tax but which certainly has ad valorem qualities but I understand the judicial power of the United States is limited to cases of controversy, so I am informed by the old case of (Inaudible) against United States that this Court doesn’t issue advisory opinions and I for the life that we cannot see how this case in its — in its present posture can reach any discussion of whether or not Captain Buzard had to pay the 2% excise tax or the privilege tax or the ad valorem tax or the tax required by the Revenue and Taxation Code in California.

Now —

Potter Stewart:

Am I right in understanding that there’s no mention to this point in your brief or in California’s brief or in Government’s amicus brief or in the opinion of the Supreme Court of California?

Thomas Keister Greer:

Mr. Justice Stewart, the statutes are quoted on — other than that, I would have to say that there is certainly no discussion and that I’ve — I’ve talked to my colleagues about this say, if it weren’t a point touching on jurisdiction, I — I — I wouldn’t raise it.

And I — this sort of thing probably happens by virtue of the fact that although I’m with the California bar, I live in Virginia and these briefs as I say were drawn in California and drawn very easily but the point if it be jurisdictional and obviously is the criminal case can’t rise above the foundation like the original complaint and the amended complaint, both of which specified solely Vehicle Code Section 4000.

Potter Stewart:

There’s no mention of this point in the Supreme Court’s opinion of California, isn’t it?

Thomas Keister Greer:

Only to this extent.

The Supreme Court speaking through Mr. Justice Peak said that that the conviction was void.

But they extend through the merits not —

Potter Stewart:

Well, through that because of the impact of the federal statute.

Thomas Keister Greer:

When insofar as registration is concern, if Your Honor please, I reach it through the merits.

You see if he had in fact violated the registration statute, if he had in fact violated Section 4000 which he was now guilty by the justice court then the Supreme Court of California would’ve affirmed the conviction entirely apart from the revenue and taxation asked.

But they found that the evidence was not sufficient.

As a matter of fact it goes considerably beyond that.

Potter Stewart:

Now, I’m now reading to the Court’s opinion.

His defense was that the Section 4000 did not applied to him because the Soldiers’ and Sailors’ Civil Relief Act 1940 and the Supreme Court of California goes on to this — discussed that contention and eventually they agree with it and that’s the reason which they found that he was not guilty.

Thomas Keister Greer:

Well, I think the point I was making Mr. Justice is they said it couldn’t be convicted under Section 4000 as far as registration was concerned because the state had itself frustrated his attempt to register and the evidence on that is very conclusive.

Defense counsel asked Captain Buzard, “Did you go to the Department of Motor Vehicles?”

“Did you go there for purpose of registering your car?”

“Yes sir.”

And Captain Buzard testified that the official took out, “He went out and took the motor number and filled up necessary forms to register the car” and he asked, he just said, “This will be a hundred and somewhat dollars.”

In other words, he asked him, “I want to make this point, he made the man upon you for a hundred and excess of hundred dollars, is that correct?”

“Yes.”

“Now, was there any time at the Department of Motor Vehicles or Mr. (Inaudible) offered to register your car up and assisted your payment of hundred dollars excess of hundred dollars?”

“No sir.”

William J. Brennan, Jr.:

Did he tendered $8?

Thomas Keister Greer:

He went to the — there’s no evidence Your Honor.

He went there and he said that he told him that he didn’t have that much cash with him when they said they had to have a hundred.

I think we may simply assume that it — that if they have said that they would take only $8 that the officer that would appear particular where the state has the burden of proof and has a high a very high burden of proof.

Now, when this evidence came in, defense counsel asked the District Attorney and this is in the record on page 10, “Do you have any witnesses?”

Thomas Keister Greer:

And the district attorney said, “No, I called Mr. (Inaudible).”

That’s the Department of Motor Vehicles’ official and he says as far as he knew that what you said was right and defense counsel closed he said, “That’s all” defense will rest Your Honor and the district attorney said, “We have nothing further obviously”.

Byron R. White:

Well, let’s assume for the moment that they said to him, “Alright, you pay the $8.”

And he said, “No.”

And they convicted him and then and the case went up here.

There would be a perfectly legitimate dispute between California and the officer that California claiming that that unless he paid a registration fee in Washington, he had to pay the $8 in California.

Thomas Keister Greer:

Yes sir, but —

Byron R. White:

When you say that issue wasn’t here?

Thomas Keister Greer:

No sir, that’s not here.

Byron R. White:

Not even that issue.

Thomas Keister Greer:

I think the State of California have a much stronger case because we are not here contending that any servicemen should be out on the highways without registration.

In fact, this car had an Alabama registration.

The $8 would have been almost de minimis, this officer would have paid it.

Byron R. White:

Yes, but why should we assume against it, why should we make reduction against the State of California in this case —

Thomas Keister Greer:

Because they wrongfully asked for a hundred dollars —

William J. Brennan, Jr.:

I know but you never offered the $8 either.

Thomas Keister Greer:

We went down there, if the Court please, and tried to register.

William J. Brennan, Jr.:

Well, you tried to register without paying any money?

Thomas Keister Greer:

No, if the Court please, the officer testified that he went down there and that he didn’t have that much cash with him.

William J. Brennan, Jr.:

Well, not a hundred dollars but they offered the $8.

I would say the presumption —

Thomas Keister Greer:

The record —

William J. Brennan, Jr.:

— (Voice Overlap) $8 he would’ve tendered it.

Thomas Keister Greer:

The record is silent on that point, if the Court please.

I think this that there’s a lot of difference to an $8 and hundred.

William J. Brennan, Jr.:

I agree.

Thomas Keister Greer:

And —

William J. Brennan, Jr.:

(Voice Overlap) he might have offered the $8.

Thomas Keister Greer:

All — the only answer I can give to Your Honors is the record is silent to it.

William J. Brennan, Jr.:

But I gather what you’re now suggesting is that this prosecution was on the premise that it could be sustained by proof of the failure of the 2% tax.

Thomas Keister Greer:

Yes sir.

William J. Brennan, Jr.:

And you say it can be sustained only by proof of the failure of the $8 required by the Vehicle Code?

Thomas Keister Greer:

Precisely.

William J. Brennan, Jr.:

Is that it?

Thomas Keister Greer:

Yes sir.

William J. Brennan, Jr.:

And you say that the reversal of the conviction of the Supreme Court of California was on the ground that the state’s proof didn’t add up to a violation of the Vehicle Code?

Thomas Keister Greer:

Exactly and the California Supreme —

William J. Brennan, Jr.:

You can’t find that — anything in the California Supreme Court —

Thomas Keister Greer:

Well, it — you will find this, if the Court please, you will find the statement that the — the California Court held that that in fact, here’s the language, “In fact —

Byron R. White:

What page you are?

Thomas Keister Greer:

That’s on page 46 of the record.

“In fact, his attempt to register the vehicle independently of the payment of fees and penalties was frustrated by department.”

Now, the Court might very well ask me, well, the language (Voice Overlap) —

Byron R. White:

Well, I know that the Court went right on and said that California could not force him to register and to pay the fees and penalties, is that right, because of the federal statute?

Thomas Keister Greer:

Well, they said this, “Contentions which looked to —

Byron R. White:

Well, I would’ve thought they have rules that they couldn’t even collect the $8.

Thomas Keister Greer:

No, I don’t think sir.

They say contentions which looked to the purpose of registration and furtherance of proper law enforcement and administration fail to address themselves to this issue.

William J. Brennan, Jr.:

Well, Mr. Greer I looked at the language page 46, defendant’s refusal to make payment of the fees and penalties, this is the California Supreme Court opinion, I gather, are based on the contention in Section 4000 insofar as it require the payment of fees and penalties and those of the $8, were they not, correct?

Thomas Keister Greer:

No, there is no penalty on the $8, if the Court please.

William J. Brennan, Jr.:

Well, all right, but it says that Section 4000 insofar as it require the payment of fees and penalty it was certainly the $8 did not apply to him because the Soldiers’ and Sailors’ Relief Act.

That seems to me is that the — on the face of it, the California Supreme Court seems to have treated it as a claim under the Soldiers’ and Sailors’ Relief Act as the $8 as well as the hundreds.

Thomas Keister Greer:

I think this, I think the decision of the California Supreme Court, if the Court please, is a very liberal one and quite properly a very liberal one and I would be most happy for its decision to be affirmed on a proper case raising to those issues that comes with this Court and I think with attention.

Earl Warren:

Ms. Maier.

Doris H. Maier:

If it please Your Honor.

First, let us call the Court’s attention to the fact that the points now raised by the respondent were not raised throughout the California Courts that the California Codes are to be read together both the Vehicle and the Revenue and Taxation Code of California has read all its code is one portion of its statutory law.

That in the California proceedings throughout from the time of the demurrer throughout to the California Supreme Court, the respondent here at no point has questioned the jurisdiction as to Section 4000.

It has — the respondent here has claimed that he was without the provisions of Section 6701 of the California Vehicle Code through the application of Section 574 to the Soldiers’ and Sailors’ Relief Act.

And we believe that this case is properly before this Court insofar as petitioner was properly convicted and the sole reason for the California Supreme Court reversing his conviction was that at least it was foreclosed from so doing under the provisions of the Soldiers’ and Sailors’ Relief Act and not because of any question involved as to the — whether petitioner was charged under the correct step.

Hugo L. Black:

May I ask you, where Section 4000 is in the record?

Doris H. Maier:

Section 4000 is — you can see in the petitioner’s brief at page 6 thereof.

It reads as follows, no person shall drive, move or leave standing any motor vehicle, trailers, semi-trailer, pole or pipe dolly or auxiliary dolly upon on a highway unless it is registered and the appropriate fees have been paid under this code, Section 4000 of the Vehicle Code makes it a misdemeanor to fail to pay the fees.

Byron R. White:

So, what are we talking about, the $8 as a whole —

Doris H. Maier:

We believe, Your Honor, we’re talking about the entire amounts involved.(Voice Overlap)

Byron R. White:

Does it make any difference to you on the issue that you have briefed and argued that which is to whether only the $8 or the full amount is involved between the right of the California to put — to put anything on a serviceman who have not registered in his home state, the issue is the same whether it’s $8 or a hundred, isn’t it?

Doris H. Maier:

Well, I believe as far as the State of California would be concerned, it would be quite important as to the taxing features also that we consider the taxing features as far as the particular point which was I am familiar in the criminal statute of it.

It would be the fact that completely this Court has jurisdiction regardless —

Byron R. White:

But if the other — the other part of it that you said which I was asking you whether this was a property tax.

If it were, could be classified in ad valorem tax and has another question.

Doris H. Maier:

I do not believe it is.

I still believe that this is a privilege tax under (Voice Overlap) —

William J. Brennan, Jr.:

Well, I know but you would like us to say that the Soldiers’ and Sailors’ Relief Act does not bar California from collecting both, you don’t want us to stop this thing, it does in far California has been collecting $8.

Doris H. Maier:

That’s correct.

William J. Brennan, Jr.:

Isn’t that right?

Doris H. Maier:

That’s correct.

Byron R. White:

And that’s because there is something different about the other hundred dollars.

Doris H. Maier:

Thank you.