Gafill v. Bracken, Auditor , 195 Ind. 551 ( 1924 )


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  • ON PETITION FOR REHEARING. The imposition of a tax of a fixed amount per gallon upon all sales of gasoline to be used for one designated purpose not being forbidden by the constitutional provision requiring "a 14. uniform and equal rate of assessment and taxation," nor by any other expressed prohibition contained in the Constitution of the State of Indiana or of the United States, it follows that a statute imposing such a tax is not made invalid by the fact that some or all of such gasoline may have paid a tax, as property, in proportion to its assessed value. The authorities to the contrary cited by counsel for appellants are in direct conflict with the decisions of this court cited below. Kersey v. City of Terre Haute (1903), 161 Ind. 471, 473, 68 N.E. 1027;City of Terre Haute v. Kersey (1902), 159 Ind. 300, 311, 64 N.E. 469.

    Administrative officers charged with the duty of drawing warrants for the payment of claims against the public treasury, and of paying such claims, must always exercise some 15, 16. judgment and discretion in determining whether or not to draw a warrant or pay a claim. But when a claim for the refund of money, paid as tax for gasoline sold, is presented *Page 563 to the auditor of state, duly itemized (§ 7490 Burns 1914, § 1, ch. 15, Acts 1897 p. 175) and accompanied by the original invoices showing such purchases (§ 5, ch. 182, Acts 1923 p. 534), the action of the auditor in drawing a warrant for the amount is no more judicial than it is when he approves and draws a warrant for the payment of any other of the thousands of claims against the state for other demands. If he should pay an unfounded claim, it would not constitute an adjudication in favor of the claimant, but the money paid could be recovered back, and the claimant would also be liable to a criminal prosecution for presenting a false claim. The statute under consideration does not violate Art. 3 of the Constitution of Indiana (§ 96 Burns 1914) by attempting to confer judicial power upon an administrative officer.

    We think that counsel for the appellant assign to the decision in this case a broader scope than it really has. And construed as a decision that the particular statute under consideration does not conflict with any provision of the Constitution of the State of Indiana or the Constitution of the United States, we think it correct.

    The petition for a rehearing is overruled.

Document Info

Docket Number: No. 24,429.

Citation Numbers: 145 N.E. 312, 195 Ind. 551

Judges: EWBANK, J.

Filed Date: 11/7/1924

Precedential Status: Precedential

Modified Date: 1/12/2023