Pacific Tel. & Tel. Co. v. Henneford

• Decision Date: 07 July 1939
• Docket Number: 27164.
• Citation: 199 Wash. 462,92 P.2d 214
• Court: Washington Supreme Court
• Parties: PACIFIC TELEPHONE & TELEGRAPH CO. v. HENNEFORD et al., Tax Com'rs.

92 P.2d 214

199 Wash. 462

PACIFIC TELEPHONE & TELEGRAPH CO. v. HENNEFORD et al., Tax Com'rs.

No. 27164.

Supreme Court of Washington, En Banc.

July 7, 1939

Original proceeding by H. H. Henneford, T. S. Hedges, and T. M Jenner, Tax Commissioners of the State of Washington, against the Pacific Telephone & Telegraph Company, a corporation, for an order vacating a decree of the superior court which was affirmed by Supreme Court, 195 Wash. 553, 81 P.2d 786 enjoining the collection of a 'compensating tax' on use of personal property purchased without the state of Washington.

Petition denied.

BLAKE C.J., and MAIN, J., dissenting.

McMicken, Rupp & Schweppe, of Seattle, for appellants.

G. W. Hamilton, and R. G. Sharpe, both of Olympia, for respondent.

BEALS Justice.

Appellants, the tax commissioners of the state of Washington, May 16, 1939, filed herein their motion for an order permitting them to interpose, Before the superior court for Thurston county, a motion for an order vacating the decree entered by that court in the above entitled cause, May 9, 1938, which decree was, on appeal, affirmed by this court, July 29, 1938. Pacific Tel. & Tel. Co. v. Henneford, 195 Wash. 553, 81 P.2d 786. Appellants also ask that the order which they seek, if granted, be dated nunc pro tunc as of May 1, 1939. Appellants' motion was supported by the affidavit of one of appellants' counsel, and was served upon respondent and noted for hearing. Briefs were filed by the respective parties, and the matter submitted to the court, after oral argument.

A brief statement of the history of this litigation is necessary to a proper understanding of the question to be determined.

This action was instituted by The Pacific Telephone and Telegraph Company, a corporation, as plaintiff, during the month of May, 1938, for the purpose of procuring an injunction restraining the defendants, as tax commissioners of the state of Washington, from requiring from the plaintiff the payment of any tax or penalty, as provided in title IV, chapter 180, Laws of 1935, p. 726 et seq., § 31 et seq., as amended by chapter 191, Laws of 1937, p. 943, on account of the purchase or use of certain specified personal property which the plaintiff had purchased outside the state of Washington. This section of the statute provided for the levy of the so-called 'compensating tax' on the use of personal property purchased without the state of Washington, and upon which no sales tax was paid in this state. The issues having been regularly made up, the action was tried to the court, and resulted in a decree granting plaintiff the relief demanded. The defendants thereafter prosecuted an appeal to this court, an opinion affirming the decree of the superior court being found in 195 Wash. 553, 81 P.2d 786. As expressed in its opinion, this court was of the view that the tax above referred to was not payable upon the use of personal property purchased without the state of Washington, if such property was neither manufactured nor offered for sale within this state, the court being also of the opinion that, in so far as the property in question was concerned, the tax, if levied on the purchase thereof, would constitute an unlawful burden upon interstate commerce.

After the filing of the decision of this court above referred to, appellants petitioned this court for a rehearing, submitting in support of their petition arguments against the conclusion reached by this court. In due time, appellants' petition for rehearing was denied, and the cause was remitted to the superior court.

In the recent case of City of Spokane v. State of Washington, 89 P.2d 826, this court held that the tax above referred to is payable upon the purchase of property bought without the state of Washington, even though such property is not manufactured and not on sale within the state, thereby changing its position upon that phase of the question presented, as expressed in the opinion filed in the case at bar. In the Spokane case, no question concerning interstate commerce was presented, and the second ground upon which the case at bar was decided, as stated in the opinion, remained unimpaired.

In the cases of Southern Pacific Co. v. Gallagher, 306 U.S. 167, 59 S.Ct. 389, 83 L.Ed. 586, and Pacific Tel. & Tel. Co. v. Gallagher, 306 U.S. 182, 59 S.Ct. 396, 83 L.Ed. 595, the supreme court of the United States held that a taxing statute of the state of California, very similar to the statute of this state above referred to, was not unconstitutional as imposing an unlawful burden upon interstate commerce.

By chapter 9, Laws of 1939, the legislature of this state again amended the taxing statutes of 1935 and 1937, and provided that the compensating tax should be collected upon purchases of personal property made without the state of Washington, even though such property be not available for purchase within the state, the act further providing that the tax should be retroactive as of the year 1935.

In support of its motion above referred to, appellants contend that, because of the facts above stated, the two decisions of the supreme court of the United States above cited, and other arguments which they advance, their motion should be granted, and leave accorded them to move the superior court for an order vacating the judgment entered May 9, 1938, restraining appellants from proceeding to collect the tax upon the purchase or use of that portion of respondent's property which appellants contend is subject thereto.

In this state, the matter of the vacation of a judgment is a statutory proceeding. In the early case of Kuhn v. Mason, 24 Wash. 94, 64 P. 182, 183, this court said: 'The right to a vacation of judgments, while it existed at common law for certain specific reasons, viz. fraud and collusion, is in this state statutory.'

The causes for the vacation or modification of judgments are enumerated in Rem.Rev.Stat. § 464, and the procedure outlined in the following sections. Such relief must be demanded within one year, but the time of the pendency of an appeal is no considered as any portion of the statutory period. In re Shilshole Avenue, 101 Wash. 136, 172 P. 338.

Rem.Rev.Stat. § 303, provides, inter alia, that the court may, upon such terms as may be just, '* * * relieve a party, or his legal representatives, from a judgment, order or other proceedings taken against him through his mistake, inadvertence, surprise, or excusable neglect.'

None of the statutory grounds for the vacation of a judgment covers appellants' application in the case at bar.

Appellants rely upon Rem.Rev.Stat. § 735, which reads as follows: 'Motions to dissolve or modify injunctions may be made in open court, or Before a judge of the superior court, at any time after reasonable notice to the adverse party;' contending that this court is vested both with statutory and inherent power to modify or vacate injunctions because of changed conditions.

Appellants argue that, because of the opinion of this court in the case of City of Spokane v. State, supra, and because of the amendment of the compensating tax statute by chapter 9, Laws of 1939, a new and changed situation is presented, in consideration of which this court should grant appellants' motion. As to the legislative enactment of 1939, appellants have any rights vested in the tax commission by that statute, and these rights will be judicially determined when presented for consideration. State ex rel. Burke v. Board of Commissioners, 61 Wash. 684, 112 P. 929. After careful consideration, we hold that the opinion of this court in the case of City of Spokane v. State, supra, and the change of view therein expressed, do not bring Before us, in the case at bar, such a new or different condition as justifies this court in granting appellants' motion.

After a remittitur has been, by this court, sent to the superior court, this court has lost jurisdiction of the cause, save to compel the entry of a judgment in accordance with the mandate of this court, or to permit the filing of an application to vacate the judgment on one of the statutory grounds, in the event such an application is seasonably presented. Wolferman v. Bell, 8 Wash. 140, 35 P. 603; Ward v. Springfield Fire & M. Ins. Co., 12 Wash. 631, 42 P. 119; Morton Organ Co. v. Armour, 179 Wash. 392, 38 P.2d 257. Assuming, without deciding, that such an application for the vacation of a judgment might be based upon some ground other than one enumerated by statute, and be entertained by this court, either by a proceeding in the nature of a writ of error coram nobis, or otherwise, we hold that the grounds upon which appellants' motion is predicated afford no basis for granting their motion.

A writ of error coram nobis is not granted in such a situation as is here presented. As stated in 14 Cal.Jur. 1011, sec. 81, this writ '* * * is not intended to authorize any court to review and revise its opinions, but only to enable it to recall some adjudication made while some fact existed, which, if Before the court, would have prevented the rendition of the judgment, and which without fault or negligence of the party, was not presented to the court.'

In the case of Dickson v. Matheson, 12 Wash. 196, 40 P. 725, 726, this court held that error of law committed by the trial court and carried into the court's judgment afforded no ground for vacation of the judgment. On appeal from the order denying the petition to vacate, this court, in affirming the order appealed from, said: 'No fraud was practiced, and, at most, there was simply error of law upon the part of the court in giving judgment for the amount claimed as attorney's fees. But we do not think that a petition to vacate the judgment is the proper proceeding for the purpose of...