On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Petrella, Bilder and Gaynor. Bilder, J.A.D.
[221 NJSuper Page 91] This appeal involves the constitutionality of the Counterpart Fee Act, N.J.S.A. 39:3-6, which imposes a retaliatory fee or tax on trucks operating in New Jersey which are registered in one of eighteen states which impose so-called "third structure taxes" on trucks registered in New Jersey, a tax which New Jersey does not impose. Plaintiffs, a motor carrier trade organization and individual motor carriers,*fn1 contend the act violates the Commerce Clause, U.S.Const. Art I, § 8, cl. 3, and the Privileges and Immunities Clause, U.S. Const. Art. IV, § 2, of
the United States Constitution. The Law Division upheld the act on the ground that the matter had been decided in B & L Motor Freight, Inc. v. Heymann, 120 N.J. Super. 270 (Ch.Div.1972), aff'd o.b. 125 N.J. Super. 372 (App.Div.1973), certif. den. 64 N.J. 494 (1974), appeal dis. 419 U.S. 1042, 95 S. Ct. 613, 42 L. Ed. 2d 636 (1974), reh. den. 420 U.S. 913, 95 S. Ct. 837, 42 L. Ed. 2d 845 (1975). Concluding that he was bound by that decision, the trial judge granted the defendants a summary judgment dismissing the action, 210 N.J. Super. 611. On appeal plaintiffs contend B & L is not controlling because it did not decide the issues presented in this case and that, in any event, B & L must yield to subsequent case law -- supervening doctrinal developments. Substantively they contend the counterpart fees violate the Commerce Clause because they discriminate against interstate commerce, are not fairly related to services provided by New Jersey and are retaliatory or coercive; and, further, that they violate the Privileges and Immunities Clause because they discriminate against the citizens of other states. Finally, they contend that as a consequence of the unconstitutionality of the fees, plaintiffs are entitled to refunds of the monies unlawfully collected as well as counsel fees and costs under the federal Civil Rights Act, 42 U.S.C. § 1983.
The fees in question, counterpart fees, are imposed as part of the registration and licensing provisions of our motor vehicle laws. They are referred to as "third structure" fees because they are in addition to the two types of fees or taxes imposed by all 50 states on interstate trucks operating within their borders: motor fuel taxes (first structure) and registration fees (second structure). These additional taxes are imposed by some eighteen states for highway use. In Pennsylvania, for example, the third structure tax takes the form of a tax of $36 per axle. In other states it takes the form of a flat per-truck or per-tractor-trailer unit charge.
In order to eliminate this burden on New Jersey trucks, by either encouraging reciprocal agreements exempting our vehicles or eliminating the taxes entirely, New Jersey adopted the Counterpart Fee Act which imposes a retaliatory tax or fee on trucks which use our highways and are registered in one of the states which impose third structure taxes on trucks registered in this state.
Except as otherwise provided by reciprocity agreement or arrangement entered into by the director [Division of Motor Vehicles] or by a declaration issued by him, no motor vehicle or motor-drawn vehicle registered in another jurisdiction which requires the payment of a registration fee or fees or taxes of any other nature from an owner of a similar vehicle properly registered in this State for the operation of such vehicle on the highways of such other State, shall be operated on the highways of this State unless a fee is paid to the director, equal in amount to the fee or tax collected by the authorized official or body of such other jurisdiction for the operation on its highways of the motor vehicle or motor-drawn vehicle properly registered in this State. In the event that the fee or tax collected by such other jurisdiction is imposed for the registration of the vehicle therein, then in no case shall the fee paid to the director be less than the amount now or hereafter provided for by the laws of this State for the registration of a similar vehicle. The director shall from time to time promulgate such regulations as may be necessary for the effective enforcement of this section. [ N.J.S.A. 39:3-6]
Similar statutes were enacted in six other states. In two, Maine*fn2 and New Hampshire,*fn3 they have been found unconstitutional; in New Hampshire the statute had already been repealed.
As already noted, the Law Division never considered plaintiffs' substantive claims of unconstitutionality because it concluded that the matter had been decided in B & L. While we entertain doubts about whether the discrimination question was ...