Indian Refining Company v. Taylor

• Decision Date: 02 May 1924
• Docket Number: 24,392
• Citation: 143 N.E. 682,195 Ind. 223
• Parties: Indian Refining Company v. Taylor
• Court: Indiana Supreme Court

143 N.E. 682

195 Ind. 223

Indian Refining Company v. Taylor

No. 24,392

Supreme Court of Indiana

May 2, 1924

Rehearing Denied October 10, 1924.

1. INSPECTION.---Inspection of Oils.---Inclusion of Gasoline.---Under 1, Act of April 11, 1881, "An act providing for the inspection of all kinds of oil that shall be used for illuminating and combustive purposes," etc the inspection of gasoline was authorized. p. 239.

2 OFFICERS.---De Facto Officers.---Compensation.---Although the incumbent of an office is only an officer de facto under color of right he is entitled to recover compensation for services rendered therein. p. 239.

3. CONSTITUTIONAL LAW.---Compensation for Inspection of Oils.---Due Process of Law.---Police Power of State.---The collection of fees for the inspection of oils does not amount to the taking of private property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States, but is an exercise of the police power of the State. p. 240.

4. CONSTITUTIONAL LAW.---State Police Power.---Effect of Due Process Clause of Federal Constitution.---The Fourteenth Amendment to the Constitution of the United States forbidding the taking of property without due process does not impair the police power of a state. p. 240.

5. CONSTITUTIONAL LAW.---Compensation for Inspection of Oils.---Taking of Private Property Without Compensation.---The rendering of a judgment for fees for inspecting oils pursuant to the provisions of a state statute (Act of April 11, 1881) was not in violation of Art. 1, 21 of the Bill of Rights of the Constitution of the State of Indiana, prohibiting the taking of private property without compensation. p. 240.

6 COMMERCE.---Interstate Commerce.---Inspection of Oils.---No question of interstate commerce was involved when facts showed that inspections of oil were made by deputy state inspector from samples voluntarily taken from tank cars by agents of the owners of the oil after the tank cars had been placed on side tracks preparatory to the unloading of the same into stationary tanks from which sales were made to purchasers, and that the practice of taking the samples for inspection from car tanks was pursuant to a mutual agreement between the inspector and the owners of the oil. p. 241.

7. PLEADING.---Answer.---General Denial.---Special Denials Presenting No Issuable Fact.---Issues.---Where one paragraph of an answer to a complaint was a general denial, and other paragraphs of the answer consisted of special denials of certain facts alleged by the complaint together with conclusions of law which presented no issuable fact and plaintiff's general denial of certain paragraphs of defendant's answer raised no issues of fact, the issues of the case were those presented by the complaint and the general denial thereto. p. 241.

8. INSPECTION.---Excessive Fees Burden on Interstate Commerce.---Where an action was brought to recover fees for the inspection of oils under the Act of 1881 relating to the inspection of oils, testimony which showed that fees of inspection so exceeded the cost of inspection as to place a burden on interstate commerce was properly excluded because the facts showed there was no question of interstate commerce involved, and the testimony therefore was irrelevant. p. 242.

9. INTEREST.---Oil Inspector's Fees.---Time of Payment.---Although the Act of 1881 relating to the inspection of oils provides for the payment of inspection fees at the time of inspection, the fact that the inspector at the end of each month made a detailed report of inspections for the previous month which was accompanied by a demand for payment entitled him to interest from the time the demand was made, and this sum became a debt on which the inspector was entitled to interest at the legal rate of six per cent. under 7952 Burns 1914. p. 242.

10. INSPECTION.---Fees of Oil Inspector not Penalties.---The fees of an oil inspector provided for by 4, Acts 1881 p. 574 are not penalties in the sense that interest cannot be collected upon default in payment of the fees. p. 245.

11. INSPECTION.---Inspection of Oils.---Fees.---Construction of Statute.---The statute 4, Acts 1881 p. 574, gives the inspector of oils authority for charging fees on each tank car according to the number of barrels forming the bulk contents of such tank car. p. 247.

From Hendricks Circuit Court; Zimri E. Dougan, Judge.

Action by John C. Taylor against Indian Refining Company. From judgment for the plaintiff, defendant appeals.

Affirmed.

James W. Noel, Hubert Hickam and Alan W. Boyd, for appellant.

U. S. Lesh, Attorney-General, and John F. Robbins, for appellee.

Samuel D. Miller, Frank C. Dailey, William H. Thompson, Albert L. Rabb, Thomas D. Stevenson and Perry E. O'Neal, Amici Curiae.

OPINION

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 motion 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 22nd, 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 petroleum.

"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 Fifty Thousand ($ 50,000) Dollars, 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 22nd 1917, which bond was indorsed as 'approved June 22nd, '17, 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,...