Puget Sound Power Light Co v. King County

• Citation: 264 U.S. 22,68 L.Ed. 541,44 S.Ct. 261
• Decision Date: 18 February 1924
• Docket Number: No. 138,138
• Parties: PUGET SOUND POWER & LIGHT CO. et al. v. KING COUNTY et al
• Court: United States Supreme Court

264 U.S. 22

44 S.Ct. 261

68 L.Ed. 541

PUGET SOUND POWER & LIGHT CO. et al.

v KING COUNTY et al.

No. 138.

Submitted on Motion to Dismiss or Affirm Jan. 2, 1924.

Decided Feb. 18, 1924.

Messrs. Howard A. Hanson and Malcolm Douglas, both of Seattle, Wash., for defendants in error, in support of the motion.

Messrs. James B. Howe, of Seattle, Wash., Frederic D. McKenney, of Washington, D. C., and Thomas J. L. Kennedy, Walter B. Beals and Walter F. Meier, all of Seattle, Wash., for plaintiffs in error, in opposition to the motion.

Mr. Chief Justice TAFT delivered the opinion of the Court.

The Puget Sound Power & Light Company owned a street railway part of which was in Seattle. This part it sold to the city in 1919. In the contract of purchase it was agreed that if when the deed was delivered any lien should have attached to the property for the taxes of 1919, it should not constitute a breach of warranty, and the tax should be paid in amounts proportioned to the parts of the year during which the parties were respectively in possession. The deed was delivered March 31, 1919, and possession then taken. On March 15, 1919, an assessment had been made by the tax commissioner of the state on the operating property of the street railway, including that part then contracted to be sold to the city. The power company brought this suit in the superior court of King county, Wash., against the county and its taxing authorities, the state tax commissioner, and the city of Seattle to restrain the collection of taxes under the assessment as illegal. The superior court dismissed the complaint. Its action was affirmed by the Supreme Court of the state, and this is a writ of error to that court. The case comes before us on a motion to dismiss or affirm.

The first ground for the motion is that the writ of error was not taken within the time allowed by law. By the Act of September 6, 1916 (chapter 448, § 6, 39 Stat. 727 [Comp St. § 1228a]), it is provided that no writ of error intended to bring any cause for review to this court shall be allowed or entertained unless duly applied for within three months after entry of the judgment or decree complained of. The Washington Supreme Court sits in two departments and en banc. The Second Department filed its opinion October 15, 1921. The case was reargued before the court en banc, which in a per curiam opinion filed June 12, 1922, approved the decision of the Second Department and affirmed the judgment. On July 10th there was entered on the minutes of the court the following:

'Judgment.

'This cause having been heretofore submitted to the court, upon the transcript of the record of the superior court of King county, * * * and the court having fully considered the same, and being fully advised in the premises, it is now, on this 10th day of July, A. D. 1922, * * * considered, adjudged, and decreed that the judgment of the said superior court be, and the same is, hereby affirmed, with costs.'

The contention is that the per curiam opinion filed June 12th was under the Constitution and laws of Washington the judgment from which the time for allowance of the writ of error from this court began to run, and that the period thus expired on September 12, 1922, whereas the writ of error herein was not applied for until September 22d. Under the law of Washington (sections 10 and 11 of Remington's Compiled Statutes of Washington of 1922) a decision of a department of the Supreme Court does not become final until 30 days after it is filed, during which a petition for rehearing may be filed. If no rehearing is asked for, or no order entered for a hearing en banc, in the 30 days, the decision becomes final. If a hearing en banc is ordered and had, as here, the decision is final when filed; but in all cases where the decision is final there is a specific provision that a judgment shall issue thereon. It is apparent that, however final the decision may be, it is not the judgment. It is said that the latter is a mere formal ministerial entry of a clerical character, whereas the real judgment is the final decision. Whatever the effect of the distinction in the procedure of the state, which counsel seek to make, we are in no doubt that that which the Washington statute calls the judgment is the judgment referred to in the Act of Congress of September 6, 1916, supra, fixing the time in which writs of error must be applied for and allowed. The motion to dismiss the writ granted the power company must be denied.

A separate motion to dismiss is directed against the city of Seattle which appears as a plaintiff in error with the street railway company. It was made a defendant in the superior court by the company. It filed an answer supporting the averments of the complaint and a cross-complaint against its co-defendants, asking the same relief as that asked in the complaint. It took a separate appeal to the Supreme Court of the state. No evidence appears in the record that it raised an objection based on the Fourteenth Amendment to the federal Constitution, or any other federal question, in the superior court or Supreme Court. It is too late for the city to raise it in the assignment of errors in this court, even though it joins in the assignment with the street railway company, which did raise such an objection in all the courts. Sully v. American National Bank, 178 U. S. 289, 297, 20 Sup. Ct. 935, 44 L. Ed. 1072. It is difficult to see how, under Trenton v. New Jersey, 262 U. S. 182, 43 Sup. Ct. 534, 67 L. Ed. 937, and like cases, the city could have been heard as against the state to complain of state taxes on the ground that they violated the Fourteenth Amendment; but it is not necessary to decide this. The motion to dismiss the writ of the city must be granted for the reason first stated.

We come now to the motion to affirm the judgment against the power company. By objections seasonably taken before both state courts and in the assignment of errors, the power company questioned the validity of the Act of February 21, 1911, of the Legislature of Washington (Laws of Washington 1911, p. 62) amending an act of the same body of March 6, 1907 (section 12, chapter 78, Session Laws of 1907) under which the taxes complained of were assessed. Before 1911, the laws of Washington provided for a separate assessment of the real estate and of the personalty of a street railway. By the act of that year, this was...