It is my opinion that the only statute of Montana which provides for the refund of gasoline license taxes is section 2396.4, Revised Codes of Montana 1935, as amended by Chapter 67, Session Laws of Montana of 1939, and by Chapter 130, Session Laws of 1947. This section is specific in its terms as to who shall be entitled to a refund or drawback for gasoline license taxes paid and nowhere in said Act can any language be found which either directly or indirectly authorizes a refund of such taxes upon gasoline wasted, spilled or destroyed in transit. Not only does this statute contain no language supporting relators' right to the relief sought but section 2381.12 embodies language which in my opinion is fatal to relators' contention. This section provides that "In making the computation of license tax due and in making payment thereof, two per centum (2%) of the amount of such tax shall be deducted by the dealer as an allowance for evaporation and other loss of gasoline handled by such dealer."
It is my view of the law that this section provides for an arbitrary deduction to compensate dealers for loss by evaporation and all "other losses." Legislative policy is of course beyond our province but if it be suggested that this statute is unreasonable or discriminatory, the apparent answer is that in its actual operation, said section allows the gasoline industry as a whole *Page 594 what might be properly termed an unearned deduction of 2%, a provision which is obviously of distinct advantage to the industry as a whole. Such statutes as this are not unusual. In the state of Iowa the law permitted the arbitrary deduction of 3% of the invoiced gallonage to take care of evaporation and other losses. The Supreme Court in the case of State v. Standard Oil Co. of Indiana, 222 Iowa 1209, 271 N.W. 185, 188, stated the reasons for adopting an arbitrary deduction for losses in the following language: "The purpose of knowing the `invoiced gallonage' can be readily understood. It was no doubt inserted for the purpose of helping the State officials in properly checking the amount of gasoline which came into Iowa. If the State officials had to check every car, the task would be an impossible one. Thousands of cars of gasoline are shipped into Iowa. There is no way that the officials of this State charged, with the collection of this tax, could measure every one of these cars. Upon the honesty of the individual or corporation that receives the shipment depended the accuracy of the amount reported. To provide a method which would be simpler and more efficient the Legislature provided for the reporting of the `invoiced gallonage,' * * *."
What was said by the Iowa court is very much in point with the present case. If claims of this sort are allowed there is no way whereby the inspectors for the board can determine the extent and amount of such losses. The legislature has adopted the 2% deduction as a method of compensating dealers for losses by evaporation and other losses. If dealers desire to protect themselves against such losses they may do so by securing contracts of insurance but the state of Montana has not insured them against the loss of gasoline where they have paid the taxes.
In Barnsdall Refining Corporation v. Ford, 194 Ark. 658,109 S.W.2d 151, a statute provided that certain dealers in gasoline who pay the tax thereon to the state shall be entitled to take credit on such tax for losses by reason of evaporation. The court held that a gasoline manufacturer or dealer was not entitled to credit on taxes due on gasoline shipments into the state *Page 595 for the amount of taxes previously paid on gasoline destroyed by it as defective because of long storage or by fire.
The judgment should be reversed.