Lineberger v. Bagley

2 N.W.2d 305, 231 Iowa 937

• Court: Supreme Court of Iowa
• Decided: February 17, 1942
• Docket: No. 45674.
• Status: Published

Opinions

Garfield, J.

On July 26, 1939, defendant-appellant, Treasurer of State, caused to be served upon plaintiff-appellee, Line-berger, á 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 statehouse 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 sample's 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 ears from which samples were taken were part of a shipment to appellee of ten ears, 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 was 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 Company 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 Company 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 Hubbell Avenue oil station. Mr. Brooks, secretary-treasurer of the Hubbell Avenue Oil Company, 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 $2,355.27, 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 proceedings 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. 159, section 22e, page 315, section 172; 10 Am. Jur. 526, section 3. This court held in the early ease of Tiedt v. Carstensen, 61 Iowa 334, 16 N. W. 214, which has been repeatedly followed, that where the law clothes an inferior tribunal with authority to decide upon facts submitted to it, its decision is not illegal, whatever it may be, if the subject matter and the parties are within its jurisdiction, and there is evidence to support the finding. The scope of certiorari under our statutes and at common law is very similar. 10 Am. Jur. 524, section 3, page 527 et seq., section 5.

We have recognized that where there is no evidence to support the finding under review, a question of law is presented and the writ will lie. Des Moines v. Board, 227 Iowa 66, 69, 70, 287 N. W. 288. Accordingly, while it is not permissible to review disputed questions of fact, yet the court will inquire whether there is any competent evidence in support of the finding. Luke v. Civil Service Com., 225 Iowa 189, 194, 279 N. W. 443. If there is substantial evidence to support the order under review, the court will not interfere. Home Sav. & Trust Co. v. District Court, 121 Iowa 1, 11, 95 N. W. 522. It is not sufficient to justify relief in certiorari that the conclusion reached by the lower tribunal “may have been ever so erroneous,” if within its jurisdiction and not otherwise illegal. Adams v. Smith, 216 Iowa 1365, 1369, 250 N. W. 466, 468. Relief by certiorari has been denied where the showing in support of the order under review was “weak and inconclusive.” Riley v. Crawford, 181 Iowa 1219, 1223, 165 N. W. 345.

We are satisfied there was sufficient evidence before the Treasurer to support his finding and that it was not, as contended by appellee, so inherently improbable as to amount to no evidence at all. There can be no claim that appellant exceeded his jurisdiction, for the statute expressly confers upon him the jurisdiction which he exercised here. We must hold, therefore, that, unless the scope of review by certiorari, as applied to this case, has been enlarged by statute, the trial judge erred in reviewing disputed fact questions and in substituting his conclusion for that of appellant. Of course, it is proper for the legislature, within constitutional limits, to enlarge the scope of this extraordinary remedy. 14 C. J. S. 128, section 7. Appellee contends the legislature has provided for a trial de novo of the matter involved here by the following language of Code section 5093.11:

“The findings of the said treasurer as to the amount of license fees due, if any, shall be presumed to be the correct amount; and in any litigation which may follow over the amount of said license fees due, the certificate of the treasurer assessing the motor vehicle fuel license fees and penalty shall be admitted in evidence and shall constitute a prima facie case, and the burden shall be upon the distributor or other person to show the error in the treasurer’s finding and the extent of such error. In any litigation involving the amount of motor vehicle fuel license fees due the state, it shall be presumed that the distributor or other person receiving motor vehicle fuel from outside of this state, sold or used or otherwise disposed of the same within this state, unless such distributor or other person can show a different disposition of the product, * * *”

Appellee contends that the foregoing not only authorizes the introduction" of evidence but enlarges the scope of review by certiorari to permit a re-examination of the facts. We are unable to agree, as the trial court apparently concluded, that the above language of the statute has the effect claimed for it by appellee. The statute does not provide for an appeal. Furthermore, it makes no reference whatever to review by certiorari, much less any attempt to broaden the settled function of that remedy. The well-defined scope of certiorari, both statutory and at common law, is not to be enlarged by implication nor except by clear and unambiguous language. It is elementary that changes in statutory provisions by implication are not favored. It has been held that statutes claimed to enlarge the scope of the writ should be strictly construed. 14 C. J. S. 128, section 7.

Appellee’s contention that section 5093.11 authorizes the introduction of evidence before the trial court may be conceded. The general statute on certiorari, section 12464, expressly gives that right. Yet this court has held consistently since the decision in Tiedt v. Carstensen, 61 Iowa 334, 16 N. W. 214, that the .“other testimony” permitted by what is now section 12464 must be confined to the question of whether the inferior tribunal acted in excess of jurisdiction or otherwise illegally, even though the statute makes no express attempt so to limit it. Pierce v. Green, 229 Iowa 22, 50, 294 N. W. 237, 131 A. L. R. 335, and cases cited.

It may be inquired what is contemplated by the provision in section 5093.11 that “in any litigation which may follow * * * the certificate of the treasurer * * * shall constitute a prima facie case.” Since we are unable to adopt the construction of the statute advanced by appellee, we are not now called upon to decide exactly what the legislature intended by the use of this language. Attention is called, however, to sections 5093.13 and 5093.34, both of which expressly provide for “litigation which may follow” the action of the treasurer contemplated by 5093.11. It seems more reasonable to conclude that the above language refers to such litigation than to adopt the construction urged by appellee.

Anderson v. Jester, 206 Iowa 452, 221 N. W. 354, sustains our conclusion. There, a zoning board of adjustment granted an exception or variance from a zoning ordinance and a permit to open a coal mine in a residence district. Property owners sued out a writ of certiorari as authorized by Code section 6466 et seq. of the zoning laws. The statute (section 6469) expressly provided that the trial in the certiorari action should be de novo and that additional evidence might be taken. Nevertheless, this court held that the trial de novo permitted and the additional evidence to be taken should be confined to questions of illegality on the part of the board, saying at pages 462 and 463 of 206 Iowa, page 359 of 221 N. W.:

“It remains to inquire what questions may be raised on certiorari. If it had been intended to give to the aggrieved party the right to remove the determination of the entire matter from the local officers and board to the court, it is reasonable to suppose that the remedy provided would have been appeal, rather than certiorari. * * *

“The trial de novo permitted, and the determination of whether testimony is necessary, and the admission of such testimony, or the reference permitted by Section 6469, should be confined to the questions of illegality raised by the petition for the writ. Arbitrary and unreasonable actions, or proceedings not authorized by or contrary to the terms or spirit and purpose of the statute creating and defining the powers of the board, or contrary to or unsupported by facts on which power to act depends, or within which the power must be exercised, are illegal. If one of the grounds of alleged illegality is arbitrary, unreasonable, or discriminatory action on the part of the board, and on the facts the reasonableness of the board’s action is open to fair difference of opinion, there is, as to that, no illegality. The court is not, in such case, authorized to substitute its judgment for that of the local board. * * * The general statute regulating the remedy by certiorari governs, except as otherwise prescribed.”

Our decision is not contrary to Butin v. Civil Service Com., 179 Iowa 1048, 162 N. W. 565, cited by appellee. That case involved the Soldiers Preference Law (now chapter 60, Code, 1939) which expressly givés a veteran who has been removed from office the right to a review by certiorari. (Section 1163.) The court held that such provision of the Preference Law would be meaningless if the review were limited to excess of jurisdiction or illegality, because that right already existed under the general certiorari statute, and that it must have been the purpose of the legislature to enlarge the scope of the review, to the extent of determining whether the discharge was justified on the merits. This decision has been followed in Allen v. Wegman, 218 Iowa 801, 807, 254 N. W. 74, and other Soldiers Preference cases.

We have carefully considered the other authorities cited by appellee. None of them sustains appellee’s position. Appellee argues, in effect, that the gasoline tax statutes confer too much power upon the Treasurer. This is a matter for the consideration of the legislature, not the courts.

The judgment appealed from is reversed. — Reversed.

Bliss, C. J., and Sager, Oliver, Hale, and Wennerstrum, JJ., concur. Mitchell, Stiger, and Miller, JJ., dissent.