Lineberger v. Bagley, 45674.
| Decision Date | 15 May 1942 |
| Docket Number | No. 45674.,45674. |
| Parties | LINEBERGER v. BAGLEY, State Treasurer. |
| Court | Iowa Supreme Court |
LINEBERGER
v.
BAGLEY, State Treasurer.
No. 45674.
Supreme Court of Iowa.
Feb. 17, 1942.
As Modified on Denial of Rehearing May 15, 1942.
Appeal from District Court, Polk County; Russell Jordan, Judge.
Certiorari to review the assessment by defendant Treasurer of State, under section 5093.11, Code 1939, of a motor vehicle fuel license fee or gasoline tax against petitioner of $2,355.27, plus penalty of equal amount, on 80,937 gallons. The lower court found that the merchandise was not motor vehicle fuel but crude oil, in effect sustained the writ and annulled the assessment. The Treasurer appeals.
Reversed.
MITCHELL, STIGER, and MILLER, JJ., dissenting.
[2 N.W.2d 306]
Emmert, James & Lindgren and Hansen & Wheatcraft, all of Des Moines, for plaintiff-appellee.
John M. Rankin, Atty. Gen., and Floyd Philbrick, First Asst. Atty. Gen., for defendant-appellant.
GARFIELD, Justice.
On July 26, 1939, defendant-appellant, Treasurer of State, caused to be served upon plaintiff-appellee, Lineberger, a notice of hearing as authorized by section 5093.11, Code 1939, to determine the amount of motor vehicle fuel license fee or gasoline tax, if any, due from him on motor vehicle fuel not reported to the Treasurer as required by Chapter 251.3, Code 1939. The time of hearing was delayed for more than a month by appellee's absence from the state. On September 5, 1939, appellee, his attorney and his witness, Brooks, appeared at the state house and the hearing was held before appellant. An assistant attorney general appeared and questioned witnesses, who were also questioned by appellee's attorney. All witnesses were sworn and a complete stenographic record was made.
At this hearing Freese, a deputy treasurer in charge of the gasoline tax division, testified that on June 8, 1939, he, in company with Barlow, a field auditor from appellant's office, took a sample from each of two tank cars in the railroad yards in Des Moines. Each car was consigned to appellee and bore an inflammable placard. The two samples were then delivered by Freese and Barlow to Pierce, a state motor fuel chemist in the department of agriculture. It was stipulated that Barlow, if present, would testify that on June 9, 1939, he in company with one Colchetes took like samples from two other tank cars which were delivered to chemist Pierce for analysis. Pierce testified that he made a chemical analysis of the four samples. The laboratory report of each sample was produced, showing the contents to be motor vehicle fuel or gasoline within the definition of Code section 5093.02. It was shown that the four cars from which samples were taken were part of a shipment to appellee of ten cars, totaling 80,937 gallons. Appellee testified that the contents of the ten cars were similar.
Appellee at all times admitted that the ten cars were consigned to him, but contended that the contents were crude oil which is not taxable, rather than gasoline. Appellee, at the hearing before appellant, testified he was engaged in the oil business in Des Moines; that he ordered ten cars of crude oil from the Triangle Refineries in St. Louis; that the cars in fact contained crude oil; that five of the cars were sold and delivered to the Hubbell Avenue Oil Co. in Des Moines, which leased an oil station owned and formerly operated by appellee; that the contents of the remaining five cars were placed in appellee's storage tanks at Second and Sheridan; that about 700 gallons were taken from these tanks, some of which was used as fuel oil in furnaces in a residence and another building owned by appellee; that what remained of the contents of the tanks was to be taken over by the Hubbell Avenue Oil Co. for sale as fuel oil. Before the Treasurer, appellee testified he had never had any tests made of the contents of any of the cars; that he had nothing to do with the unloading of the cars at the
[2 N.W.2d 307]
Hubbell Avenue Oil station. Mr. Brooks, secretary-treasurer of the Hubbell Avenue Oil Co., testified that he bought from appellee the contents of the five cars delivered to the station as crude oil distillate.
A complete transcript was made of the proceedings before the Treasurer and opportunity afforded for arguments by the attorneys. On September 29, 1939, appellant made written findings that the ten cars contained taxable motor vehicle fuel and assessed against appellee a tax of $2355.27, and penalty in like amount. On January 31, 1940, appellee filed in the district court of Polk county his petition for a writ of certiorari, alleging that the Treasurer in making his findings and order exceeded his jurisdiction and otherwise acted illegally, in that he refused to accord plaintiff a proper hearing and an impartial trial; that said findings are contrary to law, contrary to fact and deprive plaintiff of his property and rights without due process of law. Appellant made return to the writ by filing a complete transcript of the proceedings before him.
At the trial of the certiorari proceeding in September, 1940, appellant contended that there could not be a review of the facts; that there was sufficient evidence to support the finding of the Treasurer that the merchandise was gasoline subject to tax and that this finding was binding on the court. The trial court rejected appellant's contention, heard the case de novo and substituted its judgment that the ten cars contained crude oil for the finding of the Treasurer that the contents were gasoline. The trial judge stated that it was his “position that the finding of the lower tribunal is prima facie evidence of what it purports to be but that evidence may be introduced tending to rebut the proposition.” The judgment appealed from contains the recital “That the contents of all ten cars was in fact fuel oil and not motor vehicle fuel as contended by defendant and therefore not subject to the motor vehicle fuel tax, and that defendant in assessing the motor vehicle fuel tax against plaintiff exceeded his proper jurisdiction and acted illegally.”
The vital question before us is whether the court erred in not confining its review to questions of excess of jurisdiction or other illegality, and in substituting its judgment on a disputed question of ultimate fact for that of the Treasurer.
The writ of certiorari lies where an inferior tribunal, board or officer exercising judicial functions exceeds his proper jurisdiction or otherwise acts illegally, and there is no plain, speedy and adequate remedy at law. Code, section 12456. It has been the uniform holding of this court that the function of certiorari is to determine whether the conduct of the inferior tribunal was within its jurisdiction and otherwise legal; that a trial de novo is not permitted; that only questions of law are presented and that the petitioner is not entitled to a review of the facts. Pierce v. Green, 229 Iowa 22, 49, 50, 294 N.W. 237, 131 A.L.R. 335, and cases cited. It is the general rule in other jurisdictions that the writ will not lie to review questions of fact. 14 C.J.S., Certiorari, p. 159, § 22, e; p. 315, § 172; 10 Am.Jur., p. 526, sec. 3. This court...
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