Much has been made lately on talk radio as to whether any toll protocol which exempts automobiles and smaller commercial trucks would be constitutional if the toll only applies to multiple axle trucks. One reason for the query is that virtually all toll schemes in other states include cars. Because these states do include automobiles there is a dearth of case law on the issue. At the heart of all the toll schemes, however, are discriminatory rates, so I don’t think that any legislation that excludes tolls of passenger vehicles would run afoul of the law.

Many states “discriminate” among the class of drivers by offering discounts to senior citizens on off-peak travel. Peak vs off-peak travel   itself has different rates. Places like New Jersey also offer discounts for autos that meet Super Ultra Low Emission standards, i.e. vehicles rated at 45 miles per gallon or better. This latter provision really has little to do with road damage caused by large vehicles like multiple axle trucks which is the usual reason for charging trucks more moolah than passenger cars. Another permutation of a toll structure involves a volume rate for business and commercial travel which again contradicts the basic tenet that drivers should pay for the vehicular damage they inflict. Buses also have different rates because presumably they meet the goal of car-pooling and reducing traffic and wear and tear of the road. Trailers also enjoy a discount although the rationale is tenuous as to why. Motorcycles which apparently do less road damage are charged the same as passenger cars on some highways.

There you have it: a potpourri of schemes which date back to antiquity for at least 2700 years where tolls were charged for travelers on foot, wagon or horseback or ferries on rivers. The rationale then and now is that public authorities should set aside the funds to repay the costs of maintenance and the enhancement of the infrastructure. No Hail Mary pass based on a constitutional argument, therefore, is going to stop any tolling proposal in its track.

Practical considerations, therefore, need to be vetted. If tolls are manned, fully one-third of revenue goes to staffing. Overtime costs and mission creep inure for state police to monitor side road use. The cost of multiple gantries also has to be factored. At first blush it looks ridiculous that 14 of them would be erected in the state of this size. Perhaps the reason why is that such a number is needed to prevent shunpiking where folks avoid the tolls by taking paths around them. Only by having an inevitable toll booth at some point to catch the shunpiker would the incentive exist to just take the highway and not cause damage to city or town streets. This is the single most important issue for policy makers to examine. If it is easy to avoid the toll by using side routes which the truckers association survey suggests will happen, the costs to municipalities  and passenger car drivers for idling in traffic because of the six-axle trucks in front of them have to be factored in. It could very well be that shunpiking is easy in this state so this fact alone should torpedo the proposal. It’s due diligence time.

Arlene Violet is an attorney and former Rhode Island Attorney General.