Gafill v. Bracken

• Decision Date: 07 November 1924
• Docket Number: No. 24429.,24429.
• Citation: 145 N.E. 312,195 Ind. 551
• Parties: GAFILL v. BRACKEN, State Auditor.
• Court: Indiana Supreme Court

195 Ind. 551

145 N.E. 312

GAFILL

v.BRACKEN, State Auditor.^*

No. 24429.

Supreme Court of Indiana.

Nov. 7, 1924.

Appeal from Superior Court, St. Joseph County; Lenn J Oare, Judge.

Suit by Bruce Gafill against Robert Bracken as State Auditor. From a judgment sustaining a demurrer, plaintiff appeals. Affirmed.Hubbard, Farabaugh & Pettengill, of South Bend, Harman & Jay, of Elkhart, and Walter R. Arnold, of South Bend, for appellant.

U. S. Lesh and Dale F. Stansbury, both of Indianapolis, for appellee.

EWBANK, J.

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 (chapter 182, 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, Ind., 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 70 filling stations where gasoline and other petroleum products were sold to consumers, and operating 31 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 expense, 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 reports, receipts, and other things which he deemed necessary to provide for the administration of the act; that for six weeks past, since the date fixed by said act for imposing the tax of two cents per gallon on gasoline, defendant had been and still was enforcing the provisions of the act and requiring all dealers to collect from plaintiff and his said corporation the said tax on all gasoline purchased by them, and refusing to sell to them unless they did so, thereby making it impossible for them to get any gasoline without paying the tax; that St. Joseph county is populous and wealthy, and its inhabitants own and operate upon the highways therein thousands of motor vehicles which are operated by power derived from the internal combustion of gasoline, in which they consume 50,000 gallons of gasoline, each day, and in the county are 320 miles of improved highways, being greatly in excess of the amount of gasoline sonsumed for that purpose in some other counties that have less miles of improved roads; that in the city of South Bend thousands of motor vehicles kept for hire, which are propelled by the internal combustion of gasoline, are operated solely in and upon streets constructed and paid for by means of assessments against abutting property and by city taxation, and many other such vehicles which are operated and driven from Indiana into other states and foreign countries in carrying passengers and goods for hire; that many persons from adjoining states drive into Indiana with more than 20 gallons of gasoline in the tanks of their cars; that many users of gasoline for propelling such vehicles buy their supply in other states and procure it to be shipped to them in Indiana in the original, unbroken packages; that many vehicles are operated upon the highways of Indiana in said county by electricity, kerosene, steam, muscular power, and by other means than the internal combustion of gasoline, which vehicles are used in the same way, for like purposes, and with like effect upon the highways as the gasoline propelled vehicles; and that said act is unconstitutional for each of several alleged reasons.

The act of which the constitutionality is thus attacked (chapter 182, Acts 1923, p. 532) is entitled:

“An act imposing a license fee on the use of gasoline in the state of Indiana, providing for the payment, collection and distribution thereof, prescribing certain exemptions therefrom and prescribing penalties for the violation thereof.”

[1][2] It enacts “that, a license fee of two cents (2c.) per gallon, or fraction of a gallon, is hereby imposed on the use of all gasoline used in this state for any purpose whatsoever,” to be collected by the dealer selling to any one who does not purchase for the purpose of resale, and to be paid to the auditor of state on or before the 15th of the next month, at which time a report of the total number of gallons thus sold in the month shall be made under oath. For the purpose of enforcing the act the auditor of state is authorized to examine the books and papers of any dealer pertaining to the sale of gasoline, being forbidden to divulge the information...