Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1955 No. 161 - Nov 15 1955
Attorney General Don Eastvold


RCW 46.44.048, providing for the payment for excess weights in addition to any penalty incurred under the provisions of Title 46, provides for the assessment of a civil penalty based on a graduate scale and is enforceable by a civil action.

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                                                               November 15, 1955

Honorable George W. Sibbald
Prosecuting Attorney
Cowlitz County
County Court House
Kelso, Washington                                                                                                              Cite as:  AGO 55-57 No. 161

Attention:  Mr. Richard L. Norman, Deputy

Dear Sir:

            You have requested the opinion of this office on the following questions:

            1.         Are the excess weight payments imposed by RCW 46.44.048 properly assessable and enforceable in a criminal proceeding?

            2.         If so, does RCW 9.92.060, or any other law, permit either a superior or justice court to suspend all or any portion of them?

            Our answer to your first question being in the negative obviates an answer to the second question, which contemplated an affirmative answer.

             [[Orig. Op. Page 2]]


            The statute under consideration, RCW 46.44.048 (1953 Supp.), provides as follows:

            "In addition to any penalty incurred under the provisions of this title, the owner or operator of any motor vehicle or combination of motor vehicles,as payment for excess weights, over and above those set forth in RCW 46.44.046 and 46.44.047, shall pay two cents per pound for each pound of excess weight up to five thousand pounds; if such excess weight is five thousand pounds and not in excess of ten thousand pounds, the rate per pound shall be three cents per pound for each pound of excess weight; and if the excess weight is ten thousand pounds or over the rate shall be four cents per pound for each pound of such excess weight.

            "It is intended by this section to provide a method of compensation for the state for any use of the highways beyond the designed capacity thereof.  The court shall require the owner or operator to make the proper payments herein provided for to the clerk of the courtin addition to any penalty assessed and shall suspend the certificate of license, registration of the vehicle or vehicles in combination concerned, until the owner or operator does so.

            "For the purposes of this section 'excess weight' shall mean that poundage in excess of the maximum licensed gross weight plus the weights allowed by RCW 46.44.046 and 46.44.047.

            "Any sums of money collected under the provisions of this section shall be transmitted to the county treasurer and by him transmitted to the state treasurer who shall deposit the same in the motor vehicle fund."  (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            In answering your inquiry it first becomes necessary to determine the nature of the "payment" required to be paid for transmittal to the "motor vehicle fund" as "compensation for the state for any use of the highway beyond the designed capacity thereof."

            The payment is provided for excess weight "in addition to any penalty" "over and above those set forth in RCW 46.44.046 and 46.44.047."  These two sections permit an allowable variation "in addition to the limitations of RCW 46.44.040 to 46.44.044," because of occasional weight discrepancies in cargo and logging trucks.  RCW 46.44.040 to 46.44.044 prescribe the maximum gross weights permissible determined by axle factor, tire factor, and wheelbase factor.  In other words, based on these factors, a truck, or combination, can be licensed up to a certain maximum weight.  Subject to these maximum gross weight limitations, trucks and trailers are permitted to be licensed "upon the maximum gross weight thereof as set by the licensee in his application."  RCW 46.16.070 and 46.16.072.  This licensed weight can be less than the maximum gross weight permissible, but where it is exceeded, a new licensed weight, within the legal maximum, is established by such overloading.  RCW 46.16.140.  The purpose of this preliminary analysis is to point out that the weights referred to in all sections of the title mentioned in this paragraph are based on allowable weights for fees paid for the use of the highways.

            On the other hand, the criminal penalties for violation are covered by RCW 46.16.140, governing overloading in excess of licensed weight; and RCW 46.44.045, governing overloading in excess of maximum weights permitted by law.  In other words, criminal penalties are provided for violations of maximum licensed gross weight and maximum legal weights without any further charges except as provided in RCW 46.16.140, to be hereinafter noted.

            RCW 46.16.140, as amended by section 16, chapter 384, Laws of 1955, provides that the operation of a vehicle with a weight "in excess of that for which the vehicle is licensed shall be a misdemeanor."  Then it goes on to provide that where the gross weight is in excess of the weight licensed, it

            "shall be deemed to have set a new maximum gross weight and shall, in addition to any penalties otherwise provided, be required to purchase a new license covering the new maximum gross weight and any such person who fails to secure such new license shall be guilty of a misdemeanor."

             [[Orig. Op. Page 4]]

            There is the further proviso that such additional license shall not exceed the maximum gross weight allowed by law.  Under this section if a vehicle is operated in excess of its licensed weight, but within the maximum legal weight for which it could be licensed, (1) the operator is guilty of a misdemeanor; (2) a new licensed weight, within the maximum, is established for which a new license must be obtained, with a credit being allowed for the old one; and, finally (3) the failure to obtain such new license is likewise a misdemeanor.  So, under this section, when a person is guilty of operating his vehicle in excess of his licensed weight, he is punished as for a misdemeanor, he is required to purchase a new license, and if he fails to purchase the new license, a further penalty is imposed.  Thus, it is seen that the failure to pay for the new license under this section is made a crime.

            But, under RCW 46.44.048 we have only the somewhat similar wording to (2) above mentioned under RCW 46.16.140. The penalty for the violation is governed by RCW 46.44.045, but nowhere in the section under consideration (RCW 46.44.048) is there any criminal penalty provided for failure to pay the excess weight provided, as there is for the overload under RCW 46.16.140.  Consequently, it is reasonable to infer that the legislature did not intend this to be a criminal penalty. As a matter of fact, the wording of the section assiduously avoids any mention of a criminal penalty, or, for that matter, any penalty. It merely says "as payment for excess weights" by which "it is intended . . . to provide a method of compensation for the state for any use of the highway beyond the designed capacity thereof."

            Except for the fact that it is declared to be beyond the designed capacity of the highway for which the legislature had prescribed specific licensable maximums, it would have been entirely possible to have made the same provisions for licensing as provided in RCW 46.16.140. Instead, the legislature has seen fit to prescribe a form of trip permit at rates designed to discourage habitual excess hauling, plus the severe penalties for repeat violators under the criminal provision of RCW 46.44.045.

            Furthermore, the legislature has provided an elaborate system of special permits governing the use of highways for oversize or overweight movements (RCW 46.44.090-46.44.096), each designed to govern particular operations, with violations carrying their own particular penalties (RCW 46.44.097). Only  [[Orig. Op. Page 5]] under RCW 46.44.048, the section under consideration among the situations governed by the chapter, are no criminal penalties specifically provided for imposition. By necessary inference, it is logical to assume that a different method of enforcing the payment was contemplated.

            This section (RCW 46.44.048) provides that the court shall direct the payment of this sum at the rates prescribed in addition to any other penalty incurred under the provisions of the title (RCW chapter 46) [[Title 46 RCW]]as compensation for the use of the highways.  This is, of course, not a fine since, as we have pointed out, the fine is separately imposed under the criminal sections.  Likewise, it is clear that it is not designed as a measure of damages to the highways, since it is not measured in any way by the amount of damages caused to the highways, if any.  The increasing scale for computing the amount of payments indicates an intent to provide a severe penalty and prevent repetition.  Although we have referred to this as a form of trip permit, it cannot be construed as a license fee since it does not grant any privileges in the future nor does it legalize the excess weights carried in the past.  The statute provides for a payment which from its very nature can be considered fundamentally as being in additionto any other penalty.  Thus, it is a penalty imposed by law.

            This, in general, was the basis of the reasoning in a well-considered memorandum decision by the late Judge Charles W. Hall in 1952 in the case ofState ex rel. Lyons v. Bowman, et al., Clark County No. 28596, which involved the jurisdiction of the justice of the peace in a first class city to impose this penalty.  After concluding that this payment was a civil penalty, he held that the justice court was without jurisdiction to impose a penalty of $249 since it exceeded the then civil jurisdiction of $100.  The reasoning of that case coincides with the conclusions here reached that the penalty provided by RCW 46.44.048 for a sliding scale of charges for excess weights is a civil penalty.

            There is no question as to the power of the state to regulate the transportation of loads over state highways by making the weight of the load the determining factor.White v. Turner, 114 Wash. 405. Also, see notes 72 A.L.R. 1004, supplementing 26 A.L.R. 747.

            The United States supreme court recognized the applicable rule inHepner v. United States, 213 U.S. 103, 29 S.Ct. 494, 27 L.R.A. (N.S.) 739.  After reviewing other cases involving adjudications of suits for statutory penalties, the court concluded that:

             [[Orig. Op. Page 6]]

            "It must be taken as settled law that a certain sum, or a sum which can readily be reduced to a certainty, prescribed in a statute as a penalty for the violation of law, may be recovered by civil action, even if it may also be recovered in a proceeding which is technically criminal. Of course, if the state by which the penalty was imposed contemplated recovery only by a criminal proceeding, a civil remedy could not be adopted."

            See, also, 70 C.J.S. 397, Penalties, § 8b (1).

            A leading case carrying out a somewhat similar analysis of statutory construction applicable to our situation is Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630.  This was an action in which the United States sought to collect penalties for fraud in reporting income tax in connection with the same situation on which defendant had been acquitted in a criminal prosecution. In an opinion written by Mr. Justice Brandeis it was said, after pointing out that sanctions might be both criminal and civil:

            "* * *  The question for decision is thus whether section 293 (b) imposes a criminal sanction. That question is one of statutory construction * * *

            "Remedial sanctions may be of varying types.  One which is characteristically free of the punitive criminal element is revocation of a privilege voluntarily granted.

            "Forfeiture of goods or their value and the payment of fixed or variable sums of money are other sanctions which have been recognized as enforceable by civil proceedings * * *"

            and analogous to our situation is this (p. 404):

            "The fact that the Revenue Act of 1928 contains two separate and distinct provisions imposing sanctions, and that these appear in different parts of the statute,  [[Orig. Op. Page 7]] helps to make clear the character of that here invoked.  The sanction of fine and imprisonment prescribed by section 146 (b) for wilfull attempts * * * introduced into the Act under the heading 'Penalties' is obviously a criminal one.  The sanction of 50 per centum addition * * * prescribed by section 293 (b), introduced into the Act under the heading 'Additions to the Tax,' was clearly intended as a civil one * * *"

            There, as here, provisions were made for criminal, as well as civil, sanctions.  Here, the criminal penalties are found in RCW 46.44.045.  The civil penalties in theMitchell case, supra, were listed under the heading of "Additions to the Tax," while here the statute setting them up (RCW 46.44.048) says they are"in addition to any penalty incurred under the provisions of this title."

            We have searched the statutes of other states in an effort to find a comparable statute to the one here under consideration.  Although we found no statute similar to ours, we have found in many states statutes which seem to indicate a statutory interpretation in line with the reasoning of this opinion.

            Among the states making provisions for civil damages caused by such overloads, see Colorado Rev. Stat., 14-4-131; Idaho Code 49-607; Illinois, Smith Hurd Ann. Stat., ch. 95-1/2-232; Oregon Rev. Code 483-528 (2).

            As providing for a graduated schedule of fines for such overloads, see Cal. Deering's Vehicle Code Annotated, § 718; Illinois, Smith Hurd Ann. Stat., ch. 95-1/2-229a; and Oregon Rev. Code 483.998.

            The Michigan supreme court gave consideration to a similar statutory provision basing fines for overweights on a graduated schedule.

            People v. Wolfe, 338 Mich. 525, 61 N.W. (2d) 767, was an appeal from justice court for violation of the weight restrictions of its motor vehicle code which made it a misdemeanor and provided that there

            "* * * shall be assessed a fine in an amount equal to 2 cents per pound for each pound of excess load  [[Orig. Op. Page 8]] over 1,000 pounds when the excess is 2,000 pounds or less;  * * * 10 cents per pound for each pound of excess load when the excess is over 5,000 pounds."  (Emphasis ours.)

            The court said:

            "* * *  The language of the Illinois supreme court in People v. Linde, 341 Ill. 269 (173 N.E. 361, 72 A.L.R. 997), covers the situation in apt terms."

            It was there said:

            "'This court will take judicial notice that the use of the public roads and bridges by vehicles of excessive weight is calculated to result not only in injury to public property but also in danger to all who travel such thorofares [[throughfares]].  [Citing cases.]  We must presume that the legislature recognized this fact and enacted the statutory provision here attacked for the purpose of promoting the safety of State property and the safety of the traveling public.  [Citing cases.]  The end thus sought is appropriate and legitimate.'

            "It may be assumed that the legislature in the enactment of the provision in question had in mind the practical necessity of providing penalties that would deter owners and operators of commercial vehicles from using the public highways of the State for the purpose of transporting quantities of merchandise of such weight as to be destructive to such highways, to the danger of traffic thereon and to the detriment of the public generally.  In view of the seriousness of the problem it may not be said that the legislature has prescribed excessive fines by way of punishment, especially in view of the obvious fact that an owner or operator of such equipment may by the exercise of proper care avoid any violation of the statute."

             [[Orig. Op. Page 9]]

            Those states, including our own, which provide a criminal penalty for violation of weight limitations, do so by way of fine and/or imprisonment, mostly as a misdemeanor.  However, we have found no other state which makes provision for an additional payment similar to ours.  Since our statute does not provide that the excess weight payment shall be assessed as a fine based on a statutory schedule, we must assume as the only other alternative, that it is a civil penalty.

            We therefore conclude that RCW 46.44.048 provides for the assessment of a civil penalty enforceable in a civil action (70 C.J.S. 398, Penalties, § 8e), and as such, any judgment therefor would not be suspendable, and the certificate of license registration of the vehicle concerned should be suspended until the proper payments are made.

Very truly yours,

Attorney General

Assistant Attorney General