State ex rel. Winn v. Banks

• Decision Date: 11 December 1940
• Docket Number: 36850
• Parties: State of Missouri at the relation of Robert W. Winn, State Treasurer, Appellant, v. John W. Banks, an individual doing business under the style and firm name of Banks & Sons Oil Company
• Court: Missouri Supreme Court

145 S.W.2d 362

346 Mo. 1177

State of Missouri at the relation of Robert W. Winn, State Treasurer, Appellant, v. John W. Banks, an individual doing business under the style and firm name of Banks & Sons Oil Company

No. 36850

Supreme Court of Missouri

December 11, 1940

Appeal from Johnson Circuit Court; Hon. Leslie A. Bruce Judge.

Reversed and remanded.

Roy McKitttrick, Attorney General, Lawrence L Bradley, Assistant Attorney General, and Richard H Musser for appellant.

The court erred in refusing appellant's requested declarations of law No. I and No. II, and in finding for defendant, because said declarations properly set forth that if the court found the facts to be that defendant was a licensed distributor during the months in question and purchased during said months a certain number of gallons of motor vehicle fuel from another licensed distributor, paying the tax on said fuel to this other distributor, and that the other distributor did not remit said tax to the plaintiff, that defendant sold the motor vehicle fuel so purchased in this State, then the judgment will be for the plaintiff. Sec. 7793, Laws 1933-34, p. 101; State ex rel. v. Hackmann, 258 S.W. 1011, 302 Mo. 558; State ex rel. v. Mooneyham, 253 S.W. 1098, 212 Mo.App. 573; Secs. 7794, 7795, 7796, 7814, 7822, 7824, R. S. 1929; Glaser v. Rothschild, 221 Mo. 212, 80 S.W. 332; State v. Schwartzman, Inc., 40 S.W.2d 479, 225 Mo.App. 577; State ex rel. v. Krueger, 280 Mo. 310, 217 S.W. 310; DePaige v. Douglass, 234 Mo. 89, 136 S.W. 345; In re Estate of Clark, 270 Mo. 362, 194 S.W. 54.

Russell Garnett for respondent.

(1) No exceptions were saved by appellant to the trial court's finding of facts, nor was any point raised in their motion for new trial respecting the same. In this condition of the record, the Supreme Court will not review the evidence to see whether or not those facts were sustained thereby. Gruen v. Standard Life & Acc. Ins. Co., 169 Mo.App. 161; Snuffer v. Karr, 197 Mo. 188. (2) The trial court found "that defendant was never indebted to plaintiff upon account of any taxes pleaded in plaintiff's petition . . .," to which finding appellant saved no exception nor was the correctness of this finding challenged or presented in the motion for new trial. The court further found "that the said facts stipulated to by the parties is not sufficient under the law to sustain the issues made by the pleadings on behalf of plaintiff: . . ." The stipulation is wholly insufficient to make a case. In the first place, if the tax was paid on the gasoline in question by any one previous to the defendant's purchase, then the Pittman Petroleum Company had a right to retain the tax paid by defendant, and plaintiff could not force Pittman Petroleum Company to turn the same over to it. There was no evidence to show that the Pittman Petroleum Company's vendor, the one from whom it had previously purchased the gasoline, had not paid the tax. The burden was on plaintiff. On this the stipulation is as silent as "a church mouse." Likewise in a multitude of other essential matters of proof, the stipulation falls far short, all of which is unnecessary to go into because the plaintiff is bound by the trial court's finding of facts. Carr v. Lewis Coal Co., 96 Mo. 155; McLennon v. Siebel, 135 Mo.App. 261; State ex rel. Malin v. Merriam, 159 Mo. 655; Secs. 7819, 7824, R. S. 1929.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action brought by the Attorney General for the State Treasurer to collect gasoline taxes. The trial court's judgment was for defendant, and plaintiff has appealed.

Suit was brought in two counts: for taxes and penalties for gasoline sold during the months of December, 1936, and January, 1937. The case was submitted upon the following agreed statement of facts:

"It is hereby stipulated and agreed between the plaintiff and defendant and their counsel that during the month of December, 1936, the defendant, a licensed distributor under the Laws of the State of Missouri purchased 4229 gallons of motor vehicle fuel from the Pittman Petroleum Company of Holmes Park, Missouri, a licensed distributor under the Laws of the State of Missouri, and paid the tax on the said gasoline to the Pittman Petroleum Company in the sum of $ 84.58; that the Pittman Petroleum Company did not pay over this tax to the State of Missouri.

"That during the month of January, 1937, the defendant, a licensed distributor purchased from the Pittman Petroleum Company of Holmes Park, Missouri, a licensed distributor 2155 gallons of motor vehicle fuel and paid the tax to the Pittman Petroleum Company in the sum of $ 43.10; that the Pittman Petroleum Company did not pay over this tax to the State of Missouri.

"That the defendant sold this gasoline in the State of Missouri.

"That the defendant had no notice and did not know at the times he purchased such gasoline that said Pittman Petroleum Company was not paying over or had not paid over said tax to the State of Missouri until long after said purchases by him.

"That the State oil inspector endeavored to collect said taxes, without recourse to the Court, so paid by the defendant, from said Pittman Petroleum Company and thereafter revoked said Pittman Petroleum Company's license for failure to pay over to the State of Missouri said taxes it had so collected from defendant and others." (There was also agreement about the assessment of penalties provided by statute, Sec. 7801, R. S. 1929, 7 Mo. Stat. Ann. 5249.)

The judgment of the trial court, in favor of defendants, contained a recital, as follows:

"The Court being fully advised in the premises, doth find the issues for the defendant and against the plaintiff, and doth find that the said facts stipulated to by the parties is not sufficient under the law to sustain the issues made by the pleadings on behalf of plaintiff; and doth further find that the plaintiff has failed to sustain the issues and allegations set out in its petition; that defendant was never indebted to plaintiff upon account of any taxes as pleaded in plaintiff's petition."

Defendant contends that he discharged his tax obligation by paying the amount of the tax to his vendor, citing Section 7824, R. S. 1929 (7 Mo. Stat. Ann. 5261). Defendant's answer alleges that he "was operating a gasoline tank wagon as a dealer." However, the agreed statement says that he was "a licensed distributor." Therefore, defendant cannot rely on Section 7824, which applies only to a dealer "who shall only receive, handle or sell motor vehicle fuels on which the tax has been previously paid to the state treasurer or on which the tax is paid by the dealer at the time of the purchase of such fuels to a licensed distributor who is operating and conducting business under Section 7819." Defendant also says that "no exceptions were saved by appellant to the trial court's finding of facts, nor was any point raised in their motion for new trial respecting the same;" and that "in this condition of the record, the Supreme Court will not review the evidence to see whether or not those facts were sustained thereby." [Citing Gruen v. Standard Life & Accident Ins. Co., 169 Mo.App. 161, 152 S.W. 407; Snuffer v. Karr, 197 Mo. 182, l. c. 188, 94 S.W. 983.] Defendant further says that "plaintiff is bound by the trial court's finding of fact." However, in the cases cited, there were findings of fact from conflicting evidence. It is clear here both that the recital in the judgment is not a finding of facts, but only the court's conclusion as to the legal effect of the facts, in the agreed statement, which were the only facts in the record; and also that there was no occasion for the court to make a finding of facts, and no facts for it to find, because the facts were all agreed upon by the parties. [Rivard v. Mo. Pac. Ry. Co., 257 Mo. 135, 165 S.W. 763, and cases cited; see also Russell v. Ely & Walker Dry Goods Co., 332 Mo. 645, 60 S.W.2d 44; Sawtell v. Stern Bros. & Co., 226 Mo.App. 485, 44 S.W.2d 264.] The only question presented is whether or not the court's legal conclusions from the agreed facts are correct, and this is a question of law.

The Motor Vehicle fuel tax laws are contained in Article 2, of Chapter 41, R. S. 1929 (7 Mo. Stat. Ann. 5245). Section 7794 R. S. 1929 (7 Mo. Stat. Ann. 5246) provides for "a license tax equal to two cents per gallon of motor fuel . . . used in motor vehicles on the public highways of the state." Section 7795, R. S. 1929 (7 Mo. Stat. Ann. 5246) provides that "every distributor shall for . . . each year . . . when engaged in such business in this state, pay to the state treasurer an amount equal to two (2c) cents for each gallon of motor vehicle fuels refined, manufactured, produced or compounded by such distributor and sold by him in this state." (Likewise if "shipped, transported or imported by such distributor into and distributed or sold by him within this state during such year.") Section 7796 provides that "every dealer shall for . . . each year . . . when engaged in such business in this state, pay to the state treasurer an amount equal to two (2c) cents for each gallon of motor vehicle fuels sold or distributed by such dealer in this state." It is, however, provided that, in determining the amount to be paid by a dealer, there shall not be included either fuels "which were refined, manufactured, produced or compounded and sold by a distributor in this state" or fuels "which when purchased by him were contained in containers or packages, other than...