Gafill v. Bracken
| Decision Date | 07 November 1924 |
| Docket Number | 24,429 |
| Citation | 145 N.E. 312,195 Ind. 551 |
| Parties | Gafill v. Bracken, Auditor of State |
| Court | Indiana Supreme Court |
Rehearing Denied January 13, 1925, Reported at: 195 Ind. 551 at 562.
1. TAXATION.---Tax on Use of Property.---Legislative Power Unlimited.---Legislative power is unlimited to impose taxes on the use of property for certain purposes, or the sale thereof, within this state, except that invidious discrimination will not be permitted, p. 558.
2 TAXATION.---Gasoline Tax.---Statute.---The act of 1923 (Acts 1923 p. 532) which imposes a tax on all the gasoline sold in the state for use in operating automobiles in this state is not a "property tax", in violation of Art. 10, 1 of the constitution, as it is the use of gasoline and not gasoline itself that is taxed, p. 558.
3. STATUTES.---Title Broader Than Act.---Validity.---The fact that the title of an act is broader and includes more than the act itself does not make the act unconstitutional, p. 559.
4 STATUTES.---Title Broader Than Act.---Gasoline Tax Law.---The title of the act of 1923 (Acts 1923 p. 532), which imposes a tax on gasoline sold in this state, embraces the subject-matter of the act, and the fact that it is broader than the body of the act, reciting that a tax is to be imposed "on the use of gasoline", while the act imposes a tax only on the use of gasoline for propelling automobiles operated on public highways of the state, does not make it unconstitutional. p. 559.
5. STATUTES.---Validity.---Conflict with Constitutional Provisions.---The fact that the act of 1923 (Acts 1923 p. 532), which imposes a tax on gasoline sold in this state, requires persons selling gasoline to make returns of sales and to collect the tax and pay it to the Auditor of State, does not make it in conflict with the constitutional provision which forbids taking a man's particular services without compensation, p. 560.
6. TAXATION.---Power of Legislature to Select Subjects of Taxation.---The selection of subjects for taxation is a legislative power that is not restricted by the constitution so long as the law operates without discrimination upon all within the taxing district, p. 560.
7. TAXATION.---Legislative Power to Tax for Highways Unlimited.---Legislative power to provide a tax for building, maintaining and repairing highways is unlimited except as restricted by the state and federal constitutions, p. 560.
8. STATUTES.---Gasoline Tax Law.---Validity.---The mere fact that the act of 1923 (Acts 1923 p. 532), which imposes a tax on gasoline sold in this state, requires a tax to be paid on gasoline to be used to operate automobiles on the highways of the state while it need not be paid for operating vehicles by any other power, does not make the law invalid, the legislative power of selecting the subjects of taxation not being subject to control by the courts, p. 560.
9. TAXATION.---Exact Equality not Required, because Impossible.---Exact equality as between different subjects of taxation is not required, being impossible of attainment, p. 560.
10. STATUTES.---Validity.---Use of Funds Collected in One County to Improve Highways in Another.---The fact that money paid into the state treasury by residents of one county may or will be used to improve highways of another county does not make the gasoline tax law of 1923 (Acts 1923 p. 532) invalid, p. 561.
11. STATUTES.---Gasoline Tax Law.---Validity.---The gasoline tax law (Acts 1923 p. 532) does not require a person intending to drive an automobile across the state line into another state to purchase more than sufficient gasoline to carry him to the state line, and he may then replenish his supply in the other state without paying the Indiana tax. p. 561.
12. STATUTES.---Gasoline Tax Law.---Validity.---The gasoline tax law (Acts 1923 p. 532) itself appropriates the necessary funds for the payment of all lawful claims for rebates of such tax provided for therein, and does not permit the withdrawal of money from the state treasury without an appropriation so as to conflict with Art. 10, 3, of the state constitution, p. 561.
13. CONSTITUTIONAL LAW.---Fourteenth Amerdment.---Gasoline Tax Law Not in Conflict with.---The gasoline tax law (Acts 1923 p. 532) does not conflict with any of the provisions of the Fourteenth Amendment to the constitution of the United States, p. 562.
14. TAXATION.---Gasoline Tax Law.---Validity.---The gasoline tax law (Acts 1923 p. 532), not being forbidden by the constitutional provision requiring "a uniform and equal rate of assessment and taxation", nor by any other expressed prohibition in the state or federal constitution, the fact that a property tax may have been paid on the same gasoline does not render the law invalid, p. 562.
15. CONSTITUTIONAL LAW.---Conferring Judicial Power on Administrative Officer.---A law providing for the payment by the Auditor of State of claims against the State, on the presentation of duly itemized claims therefor, is not unconstitutional because of conferring judicial power on an administrative officer in violation of Art. 3 of the constitution of Indiana. p. 562.
16. STATUTES.---Gasoline Tax Law.---Validity.---The gasoline tax law (Acts 1923 p. 532) is not rendered invalid by the provision thereof requiring the Auditor of State to issue warrants in payment of rebates to persons who have paid the tax on gasoline not used in automobiles, as his action is not judicial so as to bring it into conflict with Art. 3 of the constitution, as being an attempt to confer judicial power on an administrative officer, p. 562.
From St. Joseph Superior Court; Lenn J. Oare, Judge.
Suit by Bruce Gafill against Robert Bracken, as State Auditor, to enjoin the enforcement of the gasoline tax law. From a judgment for defendant, the plaintiff appeals.
Affirmed.
Hubbard, Farabaugh & Pettengill, Harmon & Jay and Walter R. Arnold, for appellant.
U. S. Lesh and Arthur L. Gilliom, Attorneys-General, and Dale F. Stansbury, for appellee.
OPINION
Appellant sued appellee, as auditor of state, seeking to restrain him, by injunction, from taking any steps toward enforcing the act which imposes a tax of two cents a gallon on gasoline sold or used for certain purposes (Acts 1923 pp. 532-537), particularly demanding that he be forbidden to expend any money from the state treasury or to incur any expense on behalf of the state to put the act into effect, and that he be forbidden to exact payment of the tax of two cents per gallon on such gasoline. A demurrer was sustained to the complaint, and, upon the refusal of appellant to amend or plead further, judgment was rendered that he take nothing by his suit, and that appellee recover costs. Appellant has assigned as error that the trial court erred in sustaining the demurrer to his complaint.
In substance, the complaint alleged that defendant (appellee) was the auditor of state and was sued in that capacity; that plaintiff (appellant) then was and for many years had been a resident taxpayer, of the city of South Bend, in Portage township, St. Joseph county, Indiana, paying taxes each year on real and personal property therein, and also a poll tax that he then owned and was operating an automobile, run by the internal combustion of gasoline, and used gasoline for that purpose in said St. Joseph county, and also in adjacent states, both in the conduct of his business and for pleasure, which automobile could not be operated by any other power; that he was a stockholder in a designated corporation engaged in the business of selling and distributing gasoline and other petroleum products in the city of South Bend, where it had its principal place of business, and in other parts of the State of Indiana and in adjoining states, owning seventy filling stations where gasoline and other petroleum products were sold to consumers, and operating thirty-one tank-wagon trucks, which were run by the internal combustion of gasoline, in delivering such gasoline and other petroleum products to its customers; that said company thereby hauled gasoline on the highways of Indiana and adjoining states, to fill orders received by mail, telegraph and telephone, and verbally; that in this manner it sold and delivered gasoline to purchasers for use in propelling stationary engines, farm tractors, motor boats, airplanes and aircraft, and for cleaning and dyeing and other commercial uses, other than the operation of motor vehicles on highways; that the gasoline sold to many purchasers was delivered to them in other states than Indiana, and was used entirely in such other states, and much of the gasoline used by said company in operating its said tank-wagon trucks was used in propelling them upon the highways of other states than Indiana; that demand had been made on the directors and officers of said corporation to bring this action, but had been refused; that, to comply with said act, the corporation would be required to keep books, records, papers, receipts, invoices and equipment pertaining to its sales of gasoline, and to collect and pay over to the State of Indiana the tax on all gasoline sold by it, and make verified reports, at great expenses, all without compensation for the services so rendered; that plaintiff had bought a quart of gasoline for use in cleaning clothing, furniture and other articles and for household uses, since the law went into effect, and that he would use in the operation of his automobile 500 gallons per year, while his said corporation would use in the operation of its tank-wagon trucks 5,000 gallons per year, purchased in the State of Indiana; that defendant was threatening to expend the $ 2,000 appropriated by said act in the preparation and printing of blank forms of...
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