Indian Ref. Co. v. Taylor, 24392.

• Decision Date: 03 May 1924
• Docket Number: No. 24392.,24392.
• Parties: INDIAN REFINING CO. v. TAYLOR.
• Court: Indiana Supreme Court

195 Ind. 223

143 N.E. 682

INDIAN REFINING CO.

v.TAYLOR.

No. 24392.

Supreme Court of Indiana.

May 3, 1924.

Appeal from Circuit Court, Hendricks County; Zimri E. Dougan, Judge.

Action by John C. Taylor against the Indian Refining Company. Judgment for plaintiff, and defendant appeals. Affirmed.Noel, Hickam & Boyd, of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and John F. Robbins, of Indianapolis, for appellee.

WILLOUGHBY, J.

The appellee, John C. Taylor, sued appellant to recover charges made against appellant for the inspection of kerosene and gasoline from December 1, 1917, to and including June 25, 1918, when appellee was acting as inspector of oils, assuming to act under appointment as such, made by one Marion Caldwell, a de facto but not a de jure state supervisor of oil inspection.

The appellee seeks to recover the charges as official fees due him by reason of the inspection of both oil and gasoline, and seeks to recover interest on such unpaid official fees from the time of such inspection. The complaint is in one paragraph.

A motion was made by appellant to strike out the parts of the complaint respecting the inspection of gasoline. This action was overruled, and appellant then demurred to the complaint upon two separate general grounds: (a) That appellee as a de facto inspector could not recover compensation for services rendered in said office; and (b) that no recovery could be had for the inspection of gasoline, which demurrer was overruled. The appellant then filed an answer in five paragraphs. The first being a general denial, and the second, third, fourth, and fifth were affirmative paragraphs of answer. The plaintiff demurred to the second, third, and fourth paragraphs of answer, which was sustained, but the demurrer to the second paragraph of answer was by agreement withdrawn, and the plaintiff then filed a reply in general denial to the second and fifth paragraphs of answer. The case was tried on the issues thus formed.

Upon request of the appellant the court made a special finding of facts, and stated conclusions of law thereon. The finding of facts covers all the issues in the case, and is as follows:

“(1) The defendant in this cause is now and was at, during, and throughout all times from and including the month of June, 1917, to and including the month of June, 1918, and continuously since has been a corporation duly organized and existing under and by virtue of the laws of the state of Maine, and lawfully engaged in and transacting business in the state of Indiana, as a duly qualified foreign corporation under and pursuant to the laws of the said state of Indiana in such cases made and provided, and during and throughout said period was engaged in the manufacture outside of the state of Indiana of the products of crude petroleum, and in transporting the same into the state of Indiana and selling and offering the same for sale in said state.

(2) On June 22, 1917, James P. Goodrich was the duly elected and acting Governor of the state of Indiana, and did not hold any other office in said state nor under its law. And on said date, as such Governor, the said James P. Goodrich appointed and commissioned Marion Caldwell as state supervisor of oil inspection in succession to one Carl Mote, whom said James P. Goodrich had previously, while he was Governor of the state of Indiana, appointed and commissioned as state supervisor of oil inspection, but who had offered to said Governor his resignation from said position, which resignation had been accepted by said Goodrich as such Governor of Indiana. That at the time of his appointment by said Governor the said Marion Caldwell was a skilled, suitable person, a resident of the state of Indiana, who was not interested in manufacturing, dealing, or vending any illuminating or fuel oils manufactured from pertoleum.

(3) That on the said date of receiving said commission the said Marion Caldwell accepted the said appointment, and filed with the secretary of state of Indiana his bond to the state of Indiana in the penal sum of $50,000, with surety not shown to have been approved by said secretary of state, conditioned for the faithful performance of the duties of his said office of state supervisor of oil inspection during the term of four years beginning June 22, 1917, which bond was indorsed as ‘approved June 22, 1917, J. P. Goodrich, Governor,’ but without anything to show whether it was approved or disapproved by the secretary of state beyond the fact that it was so filed and thereafter remained in his said office. That at the time of the filing of said bond the said Marion Caldwell took the oath of office, and immediately took possession of the said office of state supervisor of oil inspection and of the official records and papers pertaining thereto, and entered upon the performance of the duties of said office. That at the time of said appointment and qualification of said Marion Caldwell it was deemed by him and by the Governor of the state of Indiana that his appointment as state supervisor of oil inspection was made under and pursuant to the provision of an act of the General Assembly of Indiana, entitled ‘An act regulating the inspection of oil and other petroleum products, providing penalties for its violation, repealing all former laws and laws in conflict therewith,’ approved March 11, 1901 (Acts 1901, p. 516), and by its terms intended to be in force from and after January 1, 1903; and that said Caldwell did not receive any appointment as state supervisor of oil inspection except as he was appointed by said Goodrich as aforesaid.

(4) That from and after said date of June 22, 1917, pursuant to his appointment as aforesaid, the said Marion Caldwell continued and remained in possession of said office of state supervisor of oil inspection and in the active discharge of the duties of said office during and throughout the whole period of time when the plaintiff acted as inspector of oils, and, when he made the inspections of the petroleum oils and products known as kerosene and gasoline as hereinafter stated, and was at said times the de facto and not the de jure state supervisor of oil inspection.

(5) Assuming to act as state supervisor of oil inspection by virtue of his said appointment by the Governor, and the facts as above set out, the said Marion Caldwell, as such state supervisor of oil inspection, so appointed, did appoint the plaintiff herein as an inspector of oils at Danville, in the state of Indiana and as special inspector in certain territory within the state of Indiana, where he afterward made inspections. And the plaintiff thereupon took and subscribed an oath of office as an inspector of oils, and executed a bond payable to the state of Indiana in the penal sum of $5,000, with surety approved by said Marion Caldwell as state supervisor of oil inspection, which bond and oath were filed in the office of said Marion Caldwell, acting as state supervisor of oil inspection. But he did not file any other bond, nor have his bond otherwise approved than as above stated, and plaintiff did not receive any appointment as inspector of oils except as he was appointed by Caldwell as aforesaid.

(6) While so acting under said appointment of the Governor as state supervisor of oil inspection, the said Marion Caldwell, acting as such officer, on the 5th day of July, 1917, prescribed and promulgated the following rules and regulations for the inspection of gasoline, to wit:

‘Rules and Regulations for the Inspection of Gasoline.

“‘Pursuant to the provision of an act of the General Assembly of the state of Indiana, approved April 11, 1881, c. 78, entitled, ‘An act providing for the inspection of all kinds of oil that shall be used for illuminating or combustive purposes, regulating the sale of said oil, providing for certain appointments and removals to be made by the Governor, defining what shall constitute certain misdemeanors, prescribing penalties, repealing certain laws, and containing other matters properly connected therewith,’' section 2 of which authorizes and directs the state supervisor of oil inspection to prescribe such general regulations and rules for inspection as may not be inconsistent with the terms and provisions of said act, I, Marion Caldwell, as state supervisor of oil inspection, hereby prescribe the following rules and regulations for the inspection of gasoline:

‘(1) All inspectors are hereby required, and it is made their duty, to test the quality of all gasoline required to be inspected by the provisions of said law in the following manner, to wit:

‘Such inspection shall be in the nature of a test by approved methods of Beaume's hydrometer; in making this inspection you will take 60 degrees as your base for temperature, and you will deduct 1 degree from each 10 degrees above 60 degrees in temperature to arrive at the gravity of the gasoline, and, if the gasoline shows a temperature of less than 60 degrees, you will add 1 degree for every 10 degrees below to arrive at the gravity. Such inspection must not show less degree Beaume than 56, and, if the gasoline shows less than 56 Beaume, it must be rejected.

‘(2) The above rules and regulations shall be in force from and after this 5th day of July, 1917. Marion Caldwell,

State Supervisor of Oil Inspection.'

(7) That the plaintiff, assuming to act and acting under said appointment by said Marion Caldwell, as such inspector of oils and not otherwise, inspected the certain petroleum oils, commonly called kerosene, belonging to the defendant, which was by it kept and offered for sale for illuminating and combustive purposes within the state of Indiana, on the dates and in the amount, and charged against the defendant and demanded from the defendant fees for such inspection in the sums, all as shown in the schedule hereinafter set out, and that said inspections were made on the several dates hereinafter mentioned by the inspection of samples, which said...