Dep't of Treasury of Indiana v. J.P. Michael Co., 15646.

• Decision Date: 14 December 1937
• Docket Number: No. 15646.,15646.
• Citation: 105 Ind.App. 255,11 N.E.2d 512
• Parties: DEPARTMENT OF TREASURY OF INDIANA et al. v. J. P. MICHAEL CO.
• Court: Indiana Appellate Court

105 Ind.App. 255

11 N.E.2d 512

DEPARTMENT OF TREASURY OF INDIANA et al.

v.J. P. MICHAEL CO.

No. 15646.

Appellate Court of Indiana. in Banc.

December 14, 1937.

Appeal from Superior Court, Marion County; Russell Ryan, Special Judge.

Declaratory judgment action by the J. P. Michael Company against the Department of Treasury of the State of Indiana and others. From a judgment for plaintiff, defendants appeal.

Reversed, with instructions.Philip Lutz, Jr., Atty. Gen., Joseph W. Hutchinson, Asst. Atty. Gen., and Joseph P. McNamara, Deputy Atty. Gen., for appellants.

Samuel J. Mantel, of Indianapolis, for appellee.

KIME, Judge.

The appellee filed a complaint under the Uniform Declaratory Judgment Act (Burns' Ann.St.1933, § 3-1101 et seq.) wherein it sought a declaration of its rights under chapter 50 of the Acts of 1933, and more particularly section 3 of said act. In its complaint it also asked that the appellants be perpetually enjoined from collecting or attempting to collect a tax in excess of one-fourth of 1 per cent. on gross receipts.

The appellee was a wholesale grocer and claimed that its liability after the deduction of exemptions provided by statute should be computed at one-fourth of 1 per cent. on gross receipts, basing this claim upon the fact that the business was exclusively of a wholesale nature, and, therefore, taxable under subsection (b) of section 3 of said act.

The appellants contend that the appellee's business was not exclusively wholesale, in that there were sales to ultimate consumers, and that such sales were, therefore, retail sales, and taxable at the highest rate.

The complaint was answered in general denial, and trial was had by the court, who found for the appellee and entered a judgment as follows:

“It is therefore ordered, adjudged and decreed that the plaintiff's liability for taxes under the Gross Income Tax Act of 1933 be, and is one-fourth of one per cent of its gross receipts, over and above the exemption provided for it in said Act on all of said sales as disclosed by said evidence.

“It is further ordered, adjudged and decreed that plaintiff recover of and from the defendant the costs of this action in the amount of $------.”

The appellants' motion for new trial containing the grounds that the decision was not sustained by sufficient evidence and was contrary to law was overruled, which action is assigned as error here.

The appellee here was a wholesale grocer, and in the course of business sold merchandise in large lots to such institutions as the Indiana State Prison, Central State Hospital, Pythian Home, City Hospital, Board of Children's Guardians, and the I. O. O. F. Home, and contended that such sales were wholesale sales within the meaning of the above statute.

[1] Appellants contend that the Marion superior court exceeded its jurisdiction in granting a twofold relief; that is, the declaratory judgment and a permanent injunction. Since the judgment did not grant any executory or coercive relief, this contention of the appellant must fail. Brindley v. Meara (1935) 209 Ind. 144, 198 N.E. 301, 101 A.L.R. 682.

[2] Appellants also contend that since the appellee had a...