Arlington Oil Company v. Hall
| Decision Date | 04 April 1936 |
| Docket Number | 29739 |
| Citation | 266 N.W. 583,130 Neb. 674 |
| Parties | ARLINGTON OIL COMPANY ET AL., PLAINTIFFS, v. GEORGE E. HALL, TREASURER, ET AL., DEFENDANTS |
| Court | Nebraska Supreme Court |
Original action for a declaratory judgment. Heard on motion to dismiss. Motion sustained.
MOTION TO DISMISS SUSTAINED.
Syllabus by the Court.
" The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding." Comp.St.1929, § 20-21,145).
Original action by the Arlington Oil Company and others against George E. Hall, State Treasurer, and another. On motion to dismiss the petition.
Motion sustained.
Lee Bayse, Stewart, Stewart & Whitworth and Charles B. Paine, for plaintiffs.
William H. Wright, Attorney General, and Milton C. Murphy, for defendants.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and CARTER, JJ.
This is an original action in this court for a declaratory judgment. The authority for such judgments is found in sections 20-21,140 to 20-21,155, Comp. St. 1929.
Plaintiffs are four dealers in gasoline. Defendants are the state treasurer, who has the custody of state money, and the secretary of the department of agriculture and inspection one of whose duties is to collect state taxes on motor vehicle fuels.
Plaintiffs seek a decree declaring House Rolls Nos. 11 and 37, Laws 1935 (Special Session) chs. 18, 19, unconstitutional and void and declaring the funds raised by the one-cent special gasoline tax between March 1, 1935, and September 20, 1935, to be held in trust for plaintiffs and others similarly situated; and declaring that plaintiffs are entitled to a return by defendants of the respective amounts of the tax paid by plaintiffs. The tax was collected by defendants under Senate File No. 363 (Laws 1935, ch. 155) and House Roll No. 432 (Laws 1935, ch. 161), which were held by this court to be unconstitutional and void. Smithberger v. Banning, 129 Neb. 651, 262 N.W. 492, 100 A. L. R. 686. The opinion was released September 20, 1935, and the judgment was entered the same day. Thereupon defendants ceased to collect the additional tax on gasoline. Plaintiffs allege that defendants had collected about $ 1,000,000 which they now hold intact and separate from other funds and refuse to return to plaintiffs and others who paid it.
House Rolls Nos. 11 and 37, passed with emergency clauses, were approved by the governor on November 9 and 26, 1935, respectively. The first act provides for an additional tax of one cent a gallon on motor vehicle fuels from March 1, 1935, to September 20, 1935, and further provides that, if the one-cent tax has been paid, the act shall be deemed to have been obeyed. The second act provides that the one-cent tax shall become the property of and vest in the state and shall be subject to appropriation and use by the state, notwithstanding the unconstitutionality of the acts under which the tax was collected, and ratifies, confirms and validates all acts of officers, agents and employees in reference to collection and payment.
The allegations of the petition, except as to House Rolls Nos. 11 and 37, are about the same as those of intervener Stover, in Smithberger v. Banning, 130 Neb. 354, 265 N.W. 10 which is the same as the former one of the same title. It came before the court again on a motion of defendants to dismiss certain petitions of intervention. In that case, on February 1, 1936, the court dismissed the petition of intervener Stover, who, like plaintiffs here, was a dealer, and dismissed another petition of another intervener which was not a dealer but a mere association of dealers; the court further refused to render a declaratory judgment because, if rendered, it "would not terminate the uncertainty or controversy giving rise to the proceeding," quoting the whole of section 20-21,145, Comp. St. 1929, as authority, and making it the syllabus of...
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