Montana Attorney General Opinion 17-108

Opinion No. 108 Automobile License-Federal Govern- ment-Forest Fire Fighters. HELD: Trucks and automobiles privately owned and operated by in- dividuals, under contract with the Fed- eral Gov('rnment in transportin~ men and supplies for. the purpose of fight- ing fires within the State of Montana, are not required to have State License for such, providing they have licenses from their own state. :'Ilr. Evan W. Kelly Regional Forester Federal Building :'I'lissoula. Montana Dear Sir: May 22, 1937. You have submitted to this office the question as to whether or not the state and county enforcement officers in the various counties can stop trucks and force them to procure 1Vlontana licenses while such trucks and their drivers are engaged, exclusively, in transporting fire-fighters, supplies, and equipment, and which trucks are op- erated from points out of Montana to points in Montana, and from points in Montana to points out of Montana. It appears that all of these trucks have licenses in their home state, and fur- ther it appears that these trucks are not owned by the federal govenrment but are under contract with the fed- eral government for' this special pur- pose and no other, and that these trucks are traveling upon the roads of the State of Montana for no other purpose nor in any other servIce ex- cept as above stated. It is immaterial whether said trucks are owned by the government; if they are under contract by the government, the government has acquired a quasi proprietvry right in them and their use, and these trucks and their destina- tion are under the absolute control of the government. These trucks are engaged in an ex- clusive service to the federal govern- ment, which service is in the sphere of the police power of the soverei~n government. The police powers of the government have as high dignity as the military powers. If the govern- ment were engaged in transporting troops under the same circumstances. it is quite obvious that the police powers of the State of Montana could not obstruct such transportation. These trucks in question are carry- ing fire-fighters to quell a fire and save destruction of property within the state and they are acting in a dire emer- gency, and the exercise of police power of the sovereign in an emegrency can- not be obstructed. A delay or an ob- struction of the orderly transportation of these fire-fighters may cause untold damages, and the rapid transit of these men and equipment is imperative. The trucks are acting exclusively under the sovereign arm of the government; the government is the directing hand. The federal go\'ernment has the right to discharge its Constitutional functions in the exercise of its police J)ower regardless of said regulations because the government is exercisin~ its sovereign powers. 118 OPINIONS OF THE ATTORNEY GENERAL Tennessee v. Davis, 100 U. S. 257; Henderson v. ~1ayor, 92 U. S. 259. I t may be argued that the state is entitled to the revenue from the li- censes upon these trucks for the up- keep and construction of its roads. However, the federal government has some financial interest in many of these roads. The government has ap- propriated vast sums of money to the states in the aid of the construction of these roads. The revenue that the county would receive from the licens- ing- of these trucks would be uncertain and comparatively insignificant. de- pending upon the fire conditions that may prevail, and the amount of money so received, in comparison with the damages wrought by said ilre, may be quite trivial, and a delay of even a few minutes in getting these men to the fire may create many times greater a loss to the state than the amount of revenue so received. The court said in the case of J ohn- son v. Maryland, 254 United States 51, at page 55: "Here the question is whether the state can interrupt the acts of the general government itself. With re- gard to taxation, no matter how rea- sonable, or how universal and un- discriminating, the State's inability to interfere has been regarded as estab- lished since McCulloch v. Maryland. 4 Wheat. 316. The decision in that case was not put upon any considera- tion of degree but upon the entire absence of power on the part of the States to touch, in that way at least, the instrumentalities of the United States; 4 Wheat, 429, 430; and that is the law today." In the case of Ohio v. Thomas, 173 U. S. 276, the court held that a federal officer is not subject to the jurisdic- tion of the state in regard to those very matters of administration which are approved by federal authority. Our views. as herein stated, draw a definite distinction between individuals operating their own trucks in connec- tion with public work of the federal government in the State of Montana, and the situation herein involved, as the services rendered in the former do not involve a police function of the Federal Government.