Peter Kiewit Sons' Co. v. State, 7899

• Decision Date: 17 August 1962
• Docket Number: No. 7899,7899
• Citation: Peter Kiewit Sons' Co. v. State, 116 N.W.2d 619 (N.D. 1962)
• Parties: PETER KIEWIT SONS' CO., a foreign corporation, Plaintiff and Appellant, v. The STATE of North Dakota and Curtis Olson, as State Auditor of the State of North Dakota, Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 619

116 N.W.2d 619

PETER KIEWIT SONS' CO., a foreign corporation, Plaintiff and Appellant, v.The STATE of North Dakota and Curtis Olson, as StateAuditor of the State of North Dakota, Defendants and Respondents.

No. 7899.

Supreme Court of North Dakota.

Aug. 17, 1962.

Syllabus by the Court

1.Plaintiff, under contract with the U. S. Army Engineer District for construction of the Minot Air Force Base, purchased and used motor vehicle fuels as defined in Subsections 4, of Section 57-52-03 NDCC and in Subsection 2, of Section 57-41-01 NDCC upon which he paid excise taxes imposed on such fuels by Section 57-52-04 NDCC,57-41-06 NDCC,57-43-02 NDCCand57-48-09 NDCC, claims refund of the taxes paid.For reasons stated in the opinion it is held that the Minot Air Force Base constructed and maintained by the Federal Government as a military installation, may not properly be classified as an airport within the meaning of Section 57-50-05 NDCC, that the fuels used in construction thereof were used for non-highway purposes and that the taxes paid are refundable under the provisions of Section 57-52-04 NDCC,57-50-01 NDCCand57-50-05 NDCC.

2.The term 'public funds' used in said Section 57-50-05 NDCC has reference only to funds of the State or any of its municipalities as specified in said Section and does not include federal funds appropriated by Congress and used to pay the cost of construction of the Minot Air Force Base.

Jansonius, Fleck, Smith, Mather & Strutz, Bismarck, for appellant.

Leslie R. Burgum, Atty. Gen., and Paul M. Sand, Asst. Atty. Gen., Bismarck, for respondents.

SATHRE, Chief Justice.

The plaintiff is a Nebraska Corporation engaged in construction work.In 1958the plaintiff had a contract with the U. S. Army Engineer District, Omaha Corps of Engineers, for construction of the operational apron of the Minot Air Force Base, North of Minot, North Dakota.The contract price was paid from funds appropriated by Congress for that purpose.In the construction work plaintiff used various types of machinery and equipment such as tractors, patrols, rollers, scrapers and other machinery necessary in such construction work.These items of machinery were powered by motors using special fuel.The construction work was done during the month of April 1958.

The plaintiff purchased and used 57,900 gallons of special fuel as defined in subsection 4 of Section 57-52-03 NDCC 1943 upon which it paid a tax of six cents per gallon imposed by Section 57-5204, 1957 Supp. NDRC 1943, a total of $3474.00, which sum is claimed as a refund under the provisions of Section 57-5204, 1957 Supp. NDRC 1943 which is as follows:

'There is hereby levied and imposed an excise tax of six cents per gallon on the sale or delivery of special fuel to any special fuel user, except that special fuel to be used for heating, agricultural or railroad purposes shall be exempt from the tax imposed by this chapter.Said tax shall attach at the time of sale, delivery, or transfer of title of such special fuel to a special fuel user.Such tax shall be collected from the special fuel user by the special fuel dealer and paid over to the state auditor as hereinafter provided.The tax imposed herein shall be refundable when used for industrial or other nonhighway purposes, and the provisions and procedures of chapter 57-50 relating to the refund of motor fuel taxes shall apply to the tax imposed by this chapter.'

The plaintiff also purchased and used 56,071 gallons of special fuel as defined by Subsection 2 of Section 57-43-01 upon which it paid taxes of three cents, two cents and one cent per gallon imposed and levied respectively by Sections 57-4106, 57-4302, and 57-4809, 1957 Supp. 1943, in all six cents per gallon or a total of $3364.26 which is also claimed as refund.

Section 57-50-01 CC provides as follows:

'Any person who shall buy or use any motor vehicle fuel as defined in subsection 2 of section 57-41-01, for agricultural or industrial purposes, except motor vehicle fuel used in motor vehicles operated or intended to be operated in whole or in part upon any of the public highways of the state of North Dakota on which the motor vehicle fuel tax has been paid, shall be reimbursed or repaid within the time hereinafter provided, the amount of such tax paid by him upon the presentation to and the approval of the state auditor of a claim for refund.'

A claim for refund was filed with the State Auditor, but the claim was rejected and the plaintiff brought this action in the district court of Burleigh County for a declaratory judgment declaring that plaintiff is entitled to a refund of the fuel tax paid.

The trial court found for defendants and held that the Minot Air Force Base may be classified as an airport under the provisions of Section 57-5005, 1957 Supp. NDRC 1943; that the funds appropriated by Congress for payment of the cost of construction of said Air Force Base are public funds, and that the plaintiff is not entitled to refund of the taxes paid on the fuel utilized in the construction thereof.

Judgment was rendered accordingly denying plaintiff's claim for refund, and plaintiff appealed.

Plaintiff contends that the trial court erred in determining:

(1) That the Minot Air Force Base may be classified as an airport within the meaning of Section 57-50-05 CC.

(2) That the funds appropriated by Congress for payment of the construction of the Minot Air Force Base are public funds within the meaning of Section 57-50-05 CC.

Said Section is as follows:

'When any construction, reconstruction or maintenance of a public road, highway, street or airport is undertaken by the state or any county, city, village, township, park district or other municipality in the state and where public funds of the state, county, city, village, township, park district or other municipality are directly used for the purchasing of motor vehicle fuel to be used in publicly owned vehicles for such construction, reconstruction or maintenance, such motor vehicle fuel shall be subject to a refund of the tax paid thereon as provided for in this chapter and under the same terms and...