MARSHALL, C. J., and JONES, MATTHI-222), and sections 6290, 6291, 6292, 6293, 6294, AS, and CONN, JJ., concur.

(146 N.E.)

Section 6292 (108 O. L. 1079): "Each owner of a motor vehicle shall pay or cause to be paid taxes as follows:

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Section 6295 apportions the tax payable according to the time of application. Section 6309, G. C. (108 O. L., pt. 2, 1165): "For each passenger car having twenty-five "The secretary of state shall open an achorse power or less, eight dollars; for each count with each municipal corporation and such car having more than twenty-five and not county district of registration in the state. All more than thirty-five horse power, twelve dol-registration and duplicate registration fees he lars; for each such car having more than thirty-five horse power, twenty dollars. "For each commercial car, the same tax based on horse power, and in the same classifications as are herein provided for passenger cars, and in addition thereto twenty cents for each one hundred pounds gross weight of vehicle and load, or fractional part thereof."

.

As amended by 110 O. L. 222, this section reads as follows, in the pertinent parts thereof:

"Each owner of a motor vehicle shall pay or cause to be paid taxes as follows:

* * *

"For each commercial car having twenty-five horse power or less eight dollars, and in addition thereto twenty cents for each one hundred pounds gross weight of vehicle and load or fractional part thereof.

"For each commercial car having more than twenty-five and not more than thirty horse power twelve dollars, and in addition thereto thirty cents for each one hundred pounds gross weight of vehicle and load or fractional part thereof.

"For each commercial car having more than thirty horse power twenty dollars, and in addition thereto eighty cents for each one hundred pounds gross weight of vehicle and load or fractional part thereof."

Section 6293, G. C. (108 O. L., pt. 2, 1080): "In determining the gross weight of vehicle and load, in the case of commercial cars designed and used for carrying passengers, the weight of passengers shall be computed at one hundred and twenty-five pounds for each passenger, according to the number of seats for adults actually provided, and such weight so computed added to the weight of the vehicle fully equipped. In determining the gross weight of vehicle and load in the case of motor trucks and trailers the manufacturer's rated carrying capacity shall be added to the weight of the vehicle fully equipped.

"The horse power of all vehicles propelled by internal combustion engines shall be computed upon the following formula: Square the diameter of the cylinder measured in inches, multiply by the number of cylinders and divide by two and one-half. For all motor vehicles propelled by steam engines the rating of the horse power thereof shall be based on the system of rating adopted by the United States government. [The S. A. E. formula.]

"For all motor vehicles propelled by electricity the rating of the horse power thereof shall be the normal horse power of the electric motor therein, to be ascertained by the secretary

of state."

Section 6294 prescribes the method in which every owner of a motor vehicle must make written application to the secretary of

shall pay weekly into the state treasury with other receipts of his office. The tax collections he shall apportion between the state and the several districts of registration, and pay the state's portion thereof weekly into the state treasury with other receipts of his office. He shall deposit the proceeds of tax collections due districts of registration weekly with the treasurer of state, who shall be the custodian of such funds and shall disburse the same in the manner provided in section 6309–1 of the General Code. The treasurer of state shall give a separate and additional bond, in the sum of three hundred thousand dollars, the premium on which, if any, shall be paid by the secretary of state from his appropriation for defraying the expenses incident to carrying out and enforcing the provisions of this chapter and the sureties on which shall be approved by the auditor of state, conditioned for the faithful performance of his duties as such custodian. Such bond shall be deposited in the office of the secretary of state."

Section 6309-1, G. C. (108 O. L., pt. 2, 1166):

"The treasurer of state is hereby authorized to deposit any portion of the funds due districts of registration under this chapter not needed for immediate distribution, in the same manner and subject to all the provisions of the law with respect to the deposit of active state funds by such treasurer; and all interest earned by such funds so deposited shall be collected by him and placed in the state treasury to the credit of the 'state maintenance and repair fund.' On the first business day of each month the secretary of state shall draw and transmit to the auditor of each county a voucher on the treasurer of state for the amount of the tax collection apportioned to districts of registration located wholly or in part in his county, accompanying the same with a statement showing the distribution of the amount represented thereby to each such district of registration. The county auditor shall certify the amount so transmitted into the county treasury to the credit of the undivided tax funds therein."

Section 6309-2, G. C. (108 O. L., pt. 2, 1083):

"The revenue collected under the provisions of this chapter shall be distributed as follows:

"(1) All fees collected under this chapter shall be paid into the state treasury to the credit of a fund to be designated as the 'state maintenance and repair fund.'

"(2) Fifty per centum of all taxes collected under the provisions of this chapter shall be for the use of the municipal corporation or county which constitutes the district of registration as provided in this chapter. Such moneys shall be paid into the treasury of the proper county as provided herein and distributed as are other taxes. In the treasuries of such mu

(146 N.E.)

nicipal corporations and counties, such moneys | to automobile manufacturers or to other prishall continue a fund which shall be used for vate individuals the power to determine the the maintenance and repair of public roads and rate or the amount of the tax on automobiles, highways and streets and for no other purpose, but such right must be exercised only through and shall not be subject to transfer to any oth- a state agency." er fund. 'Maintenance and repair' as used in this section, includes all work done upon any public road or highway, or upon any street, in which the existing foundation thereof is used as the subsurface of the improvement thereof,

in whole or in substantial part.

"(3) Fifty per centum of all taxes collected under the provisions of this chapter, shall be paid by the secretary of state into the state treasury to the credit of the 'state maintenance and repair fund.'

"The 'state maintenance and repair fund' provided for herein shall be available for the use of the secretary of state in defraying the expenses incident to carrying out and enforcing the provisions of this chapter and for the use of the state highway commissioner in the manner provided by law. The General Assembly shall make appropriations therefrom for such purpose."

Plaintiff in error claims that the sections of the statute above cited are repugnant to the Fourteenth Amendment to the United States Constitution, to article I, section 1, and article I, section 19, of the state Constitution, and to various other provisions of the Ohio Constitution hereinafter quoted.

In support of its contention that the above sections of the statute are unconstitutional and void, the plaintiff in error claims:

"1. That the Legislature, in enacting this statute with its amendments, arbitrarily and unreasonably classified persons within such classes, and urges the following subpropositions in support of this contention:

"(a) That the Legislature, while having the right to classify those who employ the highways into motorists and those who are not motorists, it cannot go further and subdivide motorists into pleasure car owners and commercial vehicle owners.

"(b) That the Legislature cannot, constitutionally, resubdivide commercial vehicle owners into classes according to the horse power of their trucks, and

"(c) That the legislative adoption of the S. A. E. formula, for the purpose of classification of motor trucks, is discriminatory and lacks uniformity, and fails to operate equally upon all persons in the same category, and is therefore such an unreasonable classification as to be in violation of the constitutional provisions hereinabove set forth.

"2. The tax levied upon the plaintiff and all other motor vehicle owners in Ohio is excessively out of proportion to the object sought to be accomplished, namely, the maintenance and repair of roads, and the act is therefore unreasonable and void, because it exceeds legislative power to tax a privilege.

"3. The Legislature of Ohio has no power, under the Constitution, to levy a tax, in whole or in any part, for the benefit of home rule municipal corporations and counties.

[1] We view two of these questions somewhat differently from plaintiff in error. The tax is levied, not upon the owner of the car, but upon the car itself. Hence the problem is not whether owners can be classified, for purposes of taxation, into pleasure car owners and owners of 'commercial vehicles; nor is the problem whether motor vehicle owners can be taxed according to the horse power of their trucks. Rather, the problem is whether the Legislature for purposes of taxation can classify motor cars into pleasure cars and commercial vehicles, and whether commercial motor cars can be classified according to horse power.

We shall consider these propositions in order. The first question, whether the Legislature can constitutionally classify motor cars into pleasure cars and commercial vehicles, has been decided adversely to the plaintiff in error's contention in a number of jurisdictions. Ogilvie v. Hailey, 141 Tenn. 392, 210 S. W. 645; Park v. City of Duluth, 134 Minn. 296, 159 N. W. 627; In re Hoffert, 34 S. D. 271, 148 N. W. 20, 52 L. R. A. (N. S.) 949.

And, if there were no authority upon this proposition, it would give us little difficulty, for the court will take judicial notice that the destruction done to roads by automobile traffic is due more often to commercial ve

hicles, owing to their greater weight, and to the character of their tires and general construction, than to pleasure cars. The classification of motor vehicles into pleasure cars and commercial vehicles, for the purposes of this tax, therefore is based upon reason, and is not unconstitutional.

[2] The next question raised is whether the Legislature can constitutionally classify commercial motor vehicles according to horse power. It might seem that this question had already been decided in the Saviers Case, 101 Ohio St. 132, 128 N. E. 269, which upheld the validity of the original automobile license-fee statute. The original statute divided commercial vehicles into classes according to their horse power, and while this specific question was not raised in the case, the statute was sustained in a broad decision. Moreover, other jurisdictions have held a rate based upon horse power constitutional and valid. Lillard v. Melton, 103 S. C. 10, 87 S. E. 421; Smith v. Commonwealth, 175 Ky. 286, 194 S. W. 367; Kane v. New Jersey, 242 U. S. 160, 37 S. Ct. 30, 61 L. Ed. 222; Hendrick v. Maryland, 235 U. S. 610, 35 S. Ct. 140, 59 L. Ed. 385; Cleary v. Johnston, 79 N. J. Law, 49, 74 A. 538; In re Schuler, 167 Cal. 282, 139 P. 685, Ann. Cas. 1915C, 706. In the case of Lillard v. Melton, supra, the

"4 The Legislature has no right to delegate court says, at page 17 (87 S. E. 424):

"Having determined the nature of the license fee imposed, it remains to be ascertained if the method of apportionment prescribed in the act is violative of the clauses of the Constitution referred to. The apportionment on a basis of horse power has a direct and natural relation to the privilege granted-the use of the highway, and, since the license relates to all persons in a class, and operates uniformly upon all therein, there is no unlawful discrimina tion."

In Smith v. Commonwealth, supra, the eighth paragraph of the syllabus reads:

"8. Licenses-Motor Vehicles-Police Power. -The regulation of motor vehicles and the imposition of a license tax, which is in excess of the cost of their regulation and supervision, for the privilege of using them upon the public highways, and which is applied to the improvement of the highways, is a valid exercise of the police power of the state, and the license tax may be graduated upon the basis of the injury wrought by the vehicles of different horse power to the roads."

which has not held such a tax valid, upon the principle that damage and destruction done to the highways are peculiarly the work of motor vehicles, and that a tax in proportion to their power of destruction, that is, in proportion to their horse power, is in that regard a just and reasonable tax.

However, the plaintiff in error maintains that horse power has nothing to do with the damage to the road, and that a tax based upon horse power is hence arbitrary and unreasonable. The findings of fact made by the Court of Appeals were that weight, carrying capacity, and speed are the three elements which cause the damage done by motor vehicles to roads and highways. And the Court of Appeals further found that:

"Certain of said trucks of slightly less than 30 horse power, by the S. A. E. formula, are of approximately equal weight, carrying capacity, and speed, and do substantially the same damage to the highways, as certain other of said trucks of slightly more than 30 horse power,

And at page 297 of the opinion (194 S. W. by the same formula.” 372) the court says:

"When the entire act is read and all of the sections considered together, it is apparent that it was the intention and purpose of the Legislature to exact the license tax for the privilege of the use of the vehicle upon the roads of the state, and that the license fee was graduated according to the destructiveness which would result to the roads from the use of the vehicles of greater or less horse power."

Plaintiff in error claims that this finding shows that trucks of approximately the same speed, carrying capacity, and weight are not in the same category, and that horse power, as computed by the formula, has nothing to do with weight, carrying capacity, and speed.

The defendant in error, on the contrary, claims that the amount of power tends to increase with the area of the distance, that the amount of power tends to increase with the In Hendrick v. Maryland, supra, the court, number of cylinders, that a larger horse speaking of the power of the state to require power means a larger driving power, and the registration of motor vehicles and the hence a larger possible momentum; that molicensing of their drivers, says that the state mentum is the product of speed multiplied by may charge therefor "reasonable fees grad-gross weight, and that horse power hence uated according to the horse power of the engines a practical measure of size, speed, and difficulty of control."

In the case of In re Schuler, 167 Cal. 282, 139 P. 685, Ann. Cas. 1915C, 706, the fixing of the tax upon motor vehicles according to horse power was specifically attacked. The court, after holding the tax imposed to be an excise or privilege tax, further holds, in

the syllabus:

"Such statute is not invalid, because the license fee therein exacted is fixed according to the horse power of the vehicle, not according to the value of the property, as the imposition is a privilege tax charged in the nature of compensation for the damage done to the roads of the state, and is properly based, not upon the value of the machine, but upon the amount of destruction caused by it. ***

"Such statute is not violative of the 'due process' clause of the Constitution, in imposing the license tax according to horse power, for an automobile of high power is generally heavier and more destructive to roads than one of low power."

Indeed, we have found no case, in which the question of taxing motor vehicles ac

has a relation to weight, carrying capacity, speed, and the destruction of the roads.

particularly cogent in leading us to adopt The finding of the Court of Appeals is not plaintiff in error's view. It does not tell us how many trucks of less than 30 horse, power do substantially the same damage to the highways as other trucks of more than 30 horse power; and, while this finding does indicate occasional inequality in the operation of the tax, it does not show that the tax operates with universal, nor even with usual, inequality upon commercial motor vehicles; neither does it find that horse power has no relation to weight and speed.

Horse power is an arbitrary unit for the measurement of the rate at which a prime motor works. The prevailing value of the unit is Watt's horse power, which is defined as 550 foot pounds per second, or 33,000 foot pounds per minute. In other words, horse power is a unit which measures work done and weight carried; that is, under the facts of this case, horse power does relate to pressure put upon the roads, and hence a classifi cation for taxation purposes based upon