Lineberger v. Bagley , 231 Iowa 937 ( 1942 )

I find myself unable to agree with the majority and respectfully dissent.

I have no fault to find with the cases cited by the majority holding that the function of certiorari is to determine whether the conduct of the inferior tribunal was within its jurisdiction and otherwise legal. But this court has also held that the legislature has the power to enlarge the scope of review on certiorari. In the case of Butin v. Civil Service Commission,179 Iowa 1048, this court said on page 1049, page 566 of 162 N.W.:

"While we have before us the testimony taken before the commission, and while that was all the evidence the district court considered, the appellants do not ask us to say whether that evidence justifies or fails to justify the discharge. They plant themselves upon the single proposition that the district court had no power to pass upon the weight of that evidence. If, despite special provision granting review by certiorari where it is claimed that one within the Soldier's Preference Law was wrongfully discharged, the general statutes on granting the writ of certiorari and providing for hearing limit review to exceeding jurisdiction or illegal action, the trial court erred in reinstating this plaintiff. If these general statutes control, the trial court lacked appellate power to weigh the testimony adduced before the commission, with a view of determining whether it justified discharge. If, on the other hand, said special provision in the Soldier's Preference Law, construed with the general statutes on certiorari, so enlarge the review of such a discharge as to permit the testimony thus to be weighed, then the district court was right. * * *

"We are of opinion that the right to review by certiorari given in the Soldier's Preference Act was intended to permit the reviewing court to consider anything which legitimately bore on whether the discharge was for any reason wrongful; that the legislature had power to enlarge the scope of review on certiorari; and that, by the special provision aforesaid, it authorized the reviewing tribunal to pass upon whether the evidence justified the discharge. This construction alone gives force to all the statutes on the subject, and to the manifest legislative intent to make effective the prohibition against wrongful removals of honorably discharged soldiers."

In the case of Anderson v. Jester, 206 Iowa 452, 454, 461,221 N.W. 354, 358, 359, the late Justice Morling, speaking for the court, said:

"The trial court refused to hear testimony offered by plaintiffs in support of the allegations of their petition for writ of certiorari, giving as his reason that he found no illegality appearing upon the face of the return, and on the return had no doubt as to the legality of the action of the board. Our view of the question of the correctness of this ruling is determinative of the appeal.

"The ruling demands inquiry as to the method and scope of review by the trial court permitted by the legislative enactment (Code of 1927, Section 6466 et seq.,) granting to any person aggrieved by the decision of the board of adjustment the right to petition for writ of certiorari. Subsidiary inquiries are: 1. What questions may be raised on such special writ of certiorari? 2. Is the right to trial de novo which the statute gives limited to trial de novo on the case as set forth in the return to the writ? 3. May the plaintiff, on the requisite allegation of fact in his petition for the writ, be entitled, as matter of right, to introduce evidence? These subsidiary questions are inseparable in discussion, and no attempt will be made to consider them independently of each other. * * *

"Of course, it is within the province of the legislature to determine the procedure and practice for judicial review, and to make use of the writ of certiorari for that purpose, and to provide for hearing de novo thereon. Butin v. Civil Service Com.,179 Iowa 1048; 11 Corpus Juris 209, 212. * * *

"The statute does not require the board of adjustment to return findings of fact, nor does it, expressly or by implication, limit review to questions of illegality or jurisdiction or other questions appearing upon the face of the record anterior to the filing of petition in certiorari. On the contrary, it expressly declares that the `hearing' (cause) shall be tried de novo. If all the material facts appear in the record, or are not disputed, or only questions arising upon the record are presented, the taking of evidence is not necessary. Questions likely to arise in such cases are of such great importance that the legislature appears to have had in mind that the parties should, on the question of the legality of the board's action, be entitled to a full and complete hearing before a proper court of record, and according to accepted judicial method of ascertaining facts. The parties are not, on certiorari, bound by the finding or opinion of the local board on the facts, or by the evidence offered there, or by knowledge outside of the evidence on which the board may have acted, but, ordinarily at least, are entitled to take testimony when a determinative issue of fact is raised."

So the question which confronts the court is whether or not the legislature when it enacted Code section 5093.11 of the 1939 Code enlarged the scope of review by certiorari so that the reviewing court might permit the introduction of further testimony and try the case de novo. Code section 5093.11 is as follows:

"5093.11 Treasurer may assess amount of license fees due. If the treasurer of state should at any time receive complaints or reports from any source that any licensed distributor is suspected of evading the payment of the license fees provided by this chapter or is failing to report all of the motor vehicle fuel received by him and sold, used or otherwise disposed of by him in this state, or should receive complaints or reports from any source that some person is suspected of acting as a distributor without a license and without the payment of the license fees imposed by this chapter upon distributors, the treasurer of state may, upon five days notice to such distributor or other person of the time and place of hearing and the nature thereof, proceed to hold a hearing and to determine the amount of license fee, if any, due from such licensed distributor or other person on motor vehicle fuel not reported to the treasurer as provided by this chapter, and said treasurer may adjourn said hearing from time to time until the completion thereof. Said treasurer of state may use any information available to him to determine what amount, if any, of license fees are owing by said distributor or other person. And he shall immediately assess the license fees in the amount found due together with a penalty of one hundred percent of such amount. 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 and it will be presumed that all petroleum products capable of being blended with other petroleum products to produce motor vehicle fuel were so blended unless the contrary appears by clear and satisfactory evidence.

"The treasurer of state may remit in whole or in part the penalty herein provided for, if convinced that there was no intent to evade the payment of the motor vehicle fuel license fees. And said penalty in all events shall be considered as cumulative and shall not relieve the person against whom it is assessed from the penal provisions of this chapter."

It will first be noted that there is no express method for review from findings of the State Treasurer. No appeal is provided. Yet it says, "* * * in any litigation which may follow over the amount of said license fees * * *" so it must have been contemplated that there would be a review of the findings. Even the amount of the tax is made subject to review. The legislature declared that in any such litigation the certificate of the treasurer in assessing the motor vehicle fuel license fees and penalty shall be admitted in evidence and then it says that this shall constitute a prima facie case, not a conclusive case. The legislature went further and declared, "* * * in any litigation * * * 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." Thus I find that the legislature placed upon the petitioner here the burden of proof. If a litigant is required to assume the burden of proof, as he is under this statute, certainly he must have the right to introduce evidence. Then the statute says:

"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 * * *"

Again I find that the burden is placed upon the distributor or person importing the product to show that it was used for a different purpose than motor vehicle fuel. Certainly the only way the distributor could show a different disposition would be by offering evidence, and when the legislature placed this in the statute, it certainly must have intended to give to the distributor the right to introduce evidence. It is true the legislature has the power to limit and confine the scope of review by certiorari. That is what the legislature did which led to the different results in the cases cited in appellant's brief. The cases are not in conflict at all. The statutes differ in their provisions with respect to the effect to be given by the courts to the findings of the tribunal created. In view of the language used by the legislature in enacting the statute, I come to the conclusion that it authorized the reviewing tribunal to try the case de novo to ascertain whether or not the evidence justified the finding of the Treasurer of State. The ultimate fact question which confronted the lower court was whether or not the liquid contained in these cars was crude oil in its natural state or whether it was motor vehicle fuel. The record shows that the appellee ordered crude oil in its natural state from the Triangle Refineries. That it was shipped under bills of lading which describe it "crude oil in a natural state." That the rate of freight paid was on crude oil in its natural state. That the shipper paid no federal tax on the shipment, which would be required if it was motor vehicle fuel. There is some dispute in the record in regard to the color of the contents of these cars. That part of it was sold and used as fuel oil for heating. That at the time of the hearing before the Treasurer of State, the balance of it was in tanks located in the city of Des Moines. That samples of the crude oil were taken and examined by a chemist in Des Moines and found not to be motor vehicle fuel oil. The appellant's evidence consists of showing that between a half and a pint of liquid was taken from four of the cars, delivered to the state chemist, who made an analysis of these four containers and who testifies that it came under the provision of the statute covering motor vehicle fuel. That the oil that he examined was explosive at room temperature.

This is a proceedings in certiorari. In section 12465 the Code provides:

"The action shall be prosecuted by ordinary proceedings so far as applicable."

In construing this statute, this court stated in Remey v. Board of Equalization, 80 Iowa 470, 473, 45 N.W. 899, 900, as follows:

"The action is to be prosecuted by ordinary proceedings, so far as applicable, and an appeal lies as in other ordinary actions. Code, sec. 3223. The findings of fact of the district court, therefore, must stand as the verdict of a jury."

In the case at bar, there was substantial evidence to support the appellee's contention as opposed to the contention of the appellant. The trial court's finding was adverse to the contention of the defendant.

I would affirm.

I am authorized to state that JUSTICE MILLER and JUSTICE STIGER join in this dissent.