State ex rel. Hamilton v. Cohn

• Decision Date: 24 October 1939
• Docket Number: 27761.
• Citation: 1 Wn.2d 54,95 P.2d 38
• Parties: STATE ex rel. HAMILTON, Atty. Gen., v. COHN, Acting Director of Licenses (GREAT NORTHERN RY. CO. et al., Interveners).
• Court: Washington Supreme Court

95 P.2d 38

1 Wn.2d 54

STATE ex rel. HAMILTON, Atty. Gen., v. COHN, Acting Director of Licenses (GREAT NORTHERN RY. CO. et al., Interveners).

No. 27761.

Supreme Court of Washington

October 24, 1939

Department 1.

Proceeding for a writ of mandate by the State, on the relation of G. W Hamilton, Attorney General, against Dave S. Cohn, Acting Director of Licenses of the State of Washington, wherein the Great Northern Railway Company, a corporation, and another intervened. From an adverse judgment, relator appeals.

Reversed and remanded, with directions.

Appeal from Superior Court, Thurston County; D. F. Wright, judge.

G. W Hamilton, Atty. Gen., and John E. Belcher, Asst. Atty. Gen for appellant.

Wallace G. Mills and Harold P. Troy, both of Olympia, for respondent.

MILLARD Justice.

On the theory that the exemption was unconstitutional, the attorney general of the state of Washington filed a petition March 22, 1939, in this court for a writ of mandate requiring the acting director of licenses of the state of Washington to collect an excise tax, imposed by chapter 186, page 581, of the Laws of 1939 (effective date of this statute May 1, 1939), from those persons who are engaged in the distribution of petroleum products refined in this state, notwithstanding the fact that subdivision (e) of section 15 of chapter 186 specifically exempts that class of persons from the tax. In response to an alternative writ, the acting director of licenses answered that the exemption was constitutional and that he would not collect the tax from the class of persons exempted.

Briefs were submitted by counsel for Inland Empire Refineries, Inc., and Great Northern Railway Company, as friends of the court. In those briefs it was argued that the action was prematurely brought.

On April 17, 1939, this court entered the following order, signed by the Chief Justice, denying the application for the writ of mandate:

'This matter having come on for hearing Before Department Two of the Court on Friday, March 31, 1939, upon the application of the Relator for a Writ of Mandate, and the Court having heard the arguments of counsel and being fully advised in the premises,

'It is by the court ordered that the said application for a Writ of Mandate be and it hereby is denied.'

The judgment (we did not write an opinion or state reason for denial of the writ) of this court remitted May 19, 1939, reads, so far as material, as follows:

'This cause having been heretofore submitted to the Court upon the application of the relator for a writ of mandate commanding the respondent to assess, levy and collect the distributors' excise tax of one quarter cent per gallon on petroleum products, and the Court having fully considered the same and filed its order in writing, denying the writ:

'It is Ordered, Adjudged and Decreed, that the application be and the same is denied, and each of the parties hereto having stipulated that no costs will be claimed against the other party, neither party shall recover costs.'

July 10, 1939, the attorney general commenced an action in mandamus in the superior court for Thurston county to require the acting director of licenses of the state of Washington to collect the tax imposed by chapter 186, Laws of 1939, from distributors of petroleum products despite specific exemption from the tax of that class of persons by subdivision (e), section 15 of that statute. The Great Northern Railway Company and the Inland Empire Refineries, Inc., were granted permission to intervene in the action.

The allegations in the petition to the superior court for Thurston county for writ of mandate are the same--the parties are the same--as the allegations in the petition of March 22, 1939, to this court for writ of mandate, which petition we denied, without written opinion, April 17, 1939. The only difference in the two actions is that the one commenced in this court was initiated in March, 1939, which was prior to the effective date (May 1, 1939) of chapter 186, Laws of 1939, while the second action was commenced in the superior court for Thurston county July 10, 1939, which was subsequent to effective date of the enactment in question.

The trial court entered the following order, granting the respondent's motion to quash the action: 'Ordered, adjudged and decreed that the motion to quash be and the same is hereby granted, for the reason that said cause is Res Judicata by virtue of Cause No. 27531 of the Supreme Court of the State of Washington.'

The relator appealed.

Counsel for appellant contend that our denial--without opinion or statement of reasons therefor, prior to the effective date of the statute,--of the petition for a writ requiring respondent to collect the tax exacted by chapter 186, Laws of 1939, was not a determination of the constitutionality of the exemption section of that statute; that is, our order denying the petition for writ of mandamus did not constitute a final judgment on the merits in that proceeding, hence the doctrine of res judicata may not be successfully invoked by respondent in the case at bar.

Counsel for respondent argue that the final disposition of an action in mandamus is as binding as final disposition in any other type of law action, quoting as sustaining authority the following language from 34 C.J. 760: 'It is well settled that a final judgment rendered on the merits of an application for a peremptory writ of mandamus comes within the principle of res judicata, and is a bar to another application for the same writ by the same party under the same circumstances, or to another action involving the same issues and in which the same relief is sought.'

Was the original proceeding in this court for writ of mandamus decided on the merits? That is the sole question Before us, insist counsel for respondent, who urge that in determining the question we may not go behind the pleadings in the original proceeding, which pleadings presented the same question--constitutionality of subdivision (e), section 15, chapter 186, Laws of 1939--as appellant endeavored to raise in the case at bar. Counsel for respondent also contend that the jurisdictional question--argued only in briefs of amici curiae in the original proceeding--of prematurity of the original proceeding may not be considered as those friends of the court were not parties to the proceeding; and their briefs may not be deemed pleadings.

The duty to be enforced by mandamus must be one which exists at the time when the application for the writ is made. The writ will not issue in anticipation of a supposed omission of duty, but it must appear that there has been an actual default in the performance of a clear legal duty then due at the hands of the party against whom relief is sought. Until the time fixed for the performance of the duty has passed there can be no default of duty. Northwestern Warehouse Co., v. Oregon Railway & Navigation Co., 32 Wash. 218, 73 P. 388; State ex rel. Booth v. Bryan, 26 Or. 502, 38 P. 618; 38 C.J. 581, 602.

A final order made in a mandamus proceeding has the effect of a final judgment. That is to say, an adjudication made in a mandamus proceeding would bar a new proceeding under the same rule that would apply when a judgment of a court of record is set up as a bar to a new suit or action. The judgment of a court of competent jurisdiction, so long as that judgment is in force, is final and conclusive between parties and privies thereto as to all questions actually determined, and as to those which might have been determined, within the issues raised by the pleadings and material to the determination.

'It is well settled that when a second suit is between the same parties as the first, and on the same cause of action, the judgment in the former is conclusive in the latter, not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined. This applies to issues that might have been litigated in proceedings to obtain a writ of mandamus. But it must appear either by the record in the proceedings for...