Midwest Oil Co. v. Youngquist

• Decision Date: 27 October 1943
• Docket Number: 8620
• Citation: 11 N.W.2d 662,69 S.D. 461
• Parties: MIDWEST OIL CO., Appellant, v. E. V. YOUNGQUIST, State Treasurer, substituted for William G. Douglas, State Treasurer of the State of South Dakota, Respondent.
• Court: South Dakota Supreme Court

69 SD 461, 11 NW2d 662 (1943)

MIDWEST OIL CO., Appellant v. E. V. YOUNGQUIST,

State Treasurer, substituted for

William G. Douglas, State Treasurer of the State of South Dakota,

Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. John T. Medin, Judge

#8620—Affirmed

Danforth & Danforth, Sioux Falls, SD

Attorneys for Plaintiff and Appellant

George T. Mickelson, Attorney General

Charles P. Warren, Asst. Attorney General, SD

Attorneys for Defendant and Respondent

Opinion filed Oct 27, 1943; Rehearing Denied Dec 28, 1943

ROBERTS, P.J.

This is a mandamus proceeding instituted in the Circuit Court of Minnehaha County against the State Treasurer. The application for the writ alleges that plaintiff is engaged in the business of selling at wholesale and retail gasoline and other petroleum products; that a water main in a street in the city of Aberdeen adjacent to the premises where plaintiff maintains underground gasoline tanks broke; that the water through the break in the pipe continued to flow for several hours and “attained the proportions of a terrific flood, flowing over ground and under ground, and flowed in and about the under ground tanks of the plaintiff with great force” breaking the tanks and causing gasoline therein to escape; and that defendant refuses to allow plaintiff to deduct from subsequent tax payments to the state the amount of tax paid on the gasoline lost by reason of the flood. Defendant moved to dismiss the proceeding on the grounds that the court was without jurisdiction and that the application for the writ did not state facts sufficient to entitle plaintiff to relief. The trial court sustained the motion and plaintiff has appealed.

A writ of mandamus is a command issuing from a court of competent jurisdiction requiring the “performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station” when “there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” SDC 37.4501, 37.4502. It is clear that the writ will be granted only when the plaintiff has no other clear, adequate and complete method of redressing the wrong or of obtaining the relief to which he is entitled. Taubman v. Board of Com’rs, 14 SD 206, 84 NW 784. In Wilbur v. United States ex rel. Kadrie, 281 US 206, 50 SCt 320, 324, 74 LEd 809, it is stated: “Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use. It also is employed to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way nor to direct the retraction or reversal of action already taken in the exercise of either.” To the same effect are decisions of this court. Stephens et al. v. Jones et al., 24 SD 97, 123 NW 705; Farmers’ Loan & Trust Bank v. Hirning, 42 SD 52, 172 NW 931; First Nat. Bank v. Hirning, 48 SD 417, 204 NW 901; State ex rel. Cook v. Richards, 61 SD 28, 245 NW 901. With the foregoing established rules in mind, we turn to the pertinent provisions of statute.

SDC 57.3802, as amended by § 1, Chap. 350, Laws 1941, provides for the imposition of a tax in the following language: “A tax of four cents per gallon or fraction thereof is imposed on all motor fuel sold or used in this state but said tax shall be paid but once.”

SDC 57.3804, providing for deduction for losses, reads as follows:

“Each dealer shall be allowed to deduct four per cent of the total gallonage received by him during every calendar month to cover his losses in handling such motor fuel, expenses incurred in preparing monthly reports, accounting for and collection of such taxes, and shall also be allowed to deduct the motor fuel tax for all motor fuel lost or destroyed by fire, lightning, flood, tornado, windstorm, and explosion. For the purposes of this chapter, no losses shall be allowed in excess of those provided above, and the tax. provided by this chapter shall be paid upon the gallonage received each month less the deductions allowed by this section.”

SDC 57.3806, requiring monthly reports, reads as follows:

“Each and every dealer in motor fuel shall, on or before the fifteenth day of each calendar month, render to the State Treasurer a statement under oath...