OPINION ON REHEARING. A petition for rehearing in this case has been filed on behalf of respondent. Certain points are suggested and urged in support of the petition which may be briefly reviewed at this time. In connection with arguments traversing ground which we deem fully covered by the views expressed in the original opinion herein and which it would serve no useful purpose to reiterate, it is insisted that as the trial court made fact findings adverse to appellant we are bound thereby and may not disturb the judgment given below and based thereon.
In support of this contention the cases of Sims vs. Southern Surety Co., 38 Wyo. 165, 265 P. 450 and Dulaney vs. Jensen,63 Wyo. 313, 181 P.2d 605 are cited. In the Sims case both parties introduced testimony. There was testimony introduced in behalf of the defendant which, says the court, was "entirely inconsistent with the testimony of the plaintiff" given in the case. It was also indicated that the judgment in that case was "rendered after the testimony on behalf of the defendant was compared with and interpreted and considered in the light of that for the plaintiff whose witnesses appeared upon the witness stand." Likewise in the Dulaney case it was pointed out that there was not only evidence submitted on behalf of both parties but that there was testimony given for the defendant which was "in conflict with" plaintiff's testimony, and well known rules of appellate practice were referred to in the opinion filed declaring that under such circumstances the judgment below should not be disturbed. The Sims and Dulaney cases are accordingly without persuasive force here. The status disclosed in those cases and referred to above does not *Page 311 obtain in the case at bar. In the original opinion herein it was stated that:
"The material facts to be considered are not in controversy. The oral testimony of two witnesses for the appellant was presented on the trial but there was none offered on behalf of the Board. Documentary evidence was submitted by both parties and received without objection."
Under a record such as we now have, the Supreme Court of Oregon has well stated the governing rule. In Harris vs. Schnitzer,146 Or. 391, 27 P.2d 1010 the court, reversing a judgment below, after stating its views remarks that:
"In arriving at these conclusions, we do no violence to the rule that the findings of the judge who presided over the trial are the equivalent of a jury's verdict, and cannot be disturbed when supported by substantial evidence. There is no conflict in the evidence. The sole issue presented is the legal effect of this uncontradicted evidence."
The Supreme Court of California disposing of the case of In Re Fleming's Estate 31 Cal. 2d 514, 190 P.2d 611 by a reversal of the judgment under review, has said:
"There being no dispute as to the facts in this case, the matter of the application and construction of the `charitable exemption' provisions of the inheritance tax law in relation to the terms of the bequest here involved becomes purely a question of law. Under such circumstances a reviewing court is not bound by the construction thereof by the probate court, but must `make the final determination in accordance with the applicable principles of law'. In re Estate of Platt, 21 Cal. 2d 343, 352, 131 P.2d 825,830."
In Re Mullen's Estate, 97 Mont. 144, 32 P.2d 270 the duty resting upon an appellate court where there is no conflict in the testimony is thus stated: *Page 312
"The only witnesses called by the objectors were the administrator, one of the members of the board of directors, and the receiver of the bank. There is no conflict in the testimony as between the several witnesses. Under this state of the record this court is called upon, as was the trial court, to say whether the undisputed testimony justifies the findings made."
See also Greene vs. Rhode Island Hospital Trust Company,60 R.I. 184, 197 A. 464; Gar Wood Industries Inc. vs. Colonial Homes Inc., 305 Mass. 41, 24 N.E.2d 767; E.J. Stanton Sons vs. Los Angeles County, 78 Cal. App. 2d 181, 177 P.2d 804; 5 C.J.S. 699, § 1656.
It is also contended that the question of whether the sales involved in this litigation were made within or without Wyoming was not presented in this court. With that contention we do not agree. In the appellant's brief we find this language:
"The sales transactions involved were sales made outside the State of Wyoming by a vendor who does not transact business in Wyoming."
And in respondent's brief it is argued:
"We think it cannot be disputed that a `transfer of * * * possession' from appellant to the purchaser occurs `within the exterior limits of the State of Wyoming' immediately upon arrival of the goods at point of destination in Wyoming. `Further than that, it is self evident upon this record that `transfer of title' simultaneously occurs with `transfer of * * * possession'".
* * * * "Thus it seems to us clearly established that these transactions constitute the `transfer of title or possession, or both' occurring `within the exterior limits of the State of Wyoming' 1/ subject to `An excise tax * * * equivalent to two per cent. (2%), * * * of the purchase price paid or charged * * *' — provided, of course, that such exaction is not inhibited by the commerce clause of the United States Constitution." *Page 313
Other portions of these briefs, to say nothing of the oral argument on the hearing, might easily be quoted to the same effect all of which disclosed that the matter we passed upon in disposing of the case at bar was argued on both sides of this litigation.
In Wyuta Cattle Company vs. Connell, 43 Wyo. 135, 299 P. 279 in denying a petition for a rehearing this was said:
"It is urged that this court rendered its decision upon points neither assigned nor argued as error by appellant, contrary to the rule applied in many of our previous decisions. Automobile Insurance Co. v. Lloyd, 40 Wyo. 44, 273 P. 681, and cases cited. But we find in the record assignments of error challenging the sufficiency of the judgment under review as contrary to law and as not sustained by the evidence in the case. Those assignments are discussed in the brief of counsel for appellant, and . . . our attention was directly called to the claims of error therein set forth and required their consideration. It would seem strange that this court should be confined in examining and disposing of them solely to the argument and reasons put forward by appellant. Such a view might easily be productive of incorrect and unjust conclusions here." After citing with approval a decision of the Missouri Court of Appeals (Schaff vs. Nelson, 285 S.W. 1036) it was indicated with subsequent citation of substantial authorities that:
"Further, the rule that errors assigned but not discussed in the brief of appellant are deemed abandoned, is itself not inflexible when those errors are extremely serious in character and appear unmistakably and clearly upon the face of the record in the course of the reviewing court's investigation of it. That this is so is repeatedly evidenced by the decisions of other appellate courts possessing a rule of practice similar to our own and to which reference has above been made."
It may be appropriately noted just here that precisely the same assignments of error appear in the record *Page 314 of the case now before us as were mentioned in the Wyuta case excerpt supra.
It is finally urged that the State cannot be estopped in the collection of its revenue by an unauthorized rule or regulation of its officers. With that contention there can be no quarrel. But Section 32-2518 W.C.S. 1945 expressly authorizes the State Board of Equalization to administer the Sales Tax Act of this state and to make certain rules in connection therewith. The language of the section on that point is:
"The administration of this Act (§§ 32-2501 — 32-2523) is vested in and shall be exercised by the State Board of Equalization of Wyoming which may prescribe forms and reasonable rules and regulations in conformity with this Act for making of returns and for the ascertainment, assessment and collection of the taxesimposed hereunder. (Italics supplied).
So the Board was undoubtedly duly authorized to make rules regarding the ascertainment of the taxes due and the general administration of the Tax Act.
It would seem that counsel has misapprehended the effect of what was said in the original opinion regarding Rule 25 (or Rule 24 as now designated) of the Board. We did not base our disapproval of the judgment below on the alleged estoppel of State officials in collecting revenue. It was upon the view that a plain rule which had stood upon the statute books for more than a decade and which had never been repealed or changed should be disregarded and its interpretation changed so as toretroactively and unjustly affect tax payers dealing with the Board in such matters. As pointed out in the original opinion the authorities cited in that opinion, including the Supreme Court of the United States, make it clear that that should not be done. *Page 315
Much more could be said regarding the points suggested by the petition for a rehearing but we shall rest content with what has been said above and in the original discussion of this case by adding thereto the following language from Michigan Bell Telephone Company vs. Michigan Public Service Commission,315 Mich. 533, 24 N.W.2d 200 where, speaking of retroactive official action, the court remarks:
"Nor do we agree with appellant's contention that from its broad statutory powers it should be implied that the commission is authorized to retroactively adjust charges or rates previously fixed, when circumstances arise which seem to call for such readjustment. In fixing rates the commission acts in a legislative capacity; and an order of the commission establishing a utility rate must be construed as a statute of like character would be construed. In Harrison v. Metz, 17 Mich. 377, Justice Cooley said: `legislation is to have a prospective operation only, except where the contrary intent is expressly declared or is necessarily to be implied from the terms employed.' More recently we have held: `* * * that all statutes are prospective in their operation excepting in such cases as the contrary clearly appears from the context of the statute itself'. Detroit Trust Co. v. City of Detroit, 269 Mich. 81, 256 N.W. 811. The Federal supreme court lately said:
"`Retroactivity, even where permissible, is not favored, except upon the clearest mandate. It is the normal and usual function of legislation to discriminate between closed transactions and future ones or others pending but not completed.' Claridge Apartments Co. v. Comm'r of Internal Revenue, 323 U.S. 141,65 S. Ct. 172, 185, 89 L. Ed. 139."
In connection with the language just quoted may properly be considered what was said by the Supreme Court of California in California Drive-in Restaurant vs. Clark, 22 Cal. 2d 287,140 P.2d 657 as follows: *Page 316
"Generally", says the court,
"the same rules of construction and interpretation which apply to statutes govern the construction and interpretation of rules and regulations of administrative agencies. Miller v. United States,294 U.S. 435, 55 S. Ct. 440, 79 L. Ed. 977."
And 54 Harvard Law Review, 398, 413 very justly and reasonably states that:
"But after a while, an interpretive regulation becomes seasoned. It becomes something upon which people justifiably rely; and then the principle of non-retroactivity should be given controlling force. The time should come, and before too long, when an interpretive regulation should pass so far beyond the Commissioner's power that he cannot make an amendment which will be effective retroactively. The elements of contemporaneousness and long-continuedness, and the requirements of certainty and predictability should rather soon outweigh the factors of uniformity and administrative facility so far as retroactive changes are concerned. Flexibility in the administration of the statute, freedom in the administrative authorities to fit the law to life are clearly desirable. But where retroactivity is involved, these ends may be sufficiently met by allowing administrative freedom in the early days of the statute and denying it after the administrative action has taken form and shape and become definite. This should be established by judicial decision, as a part of the administrative common law which the Court is now being called upon to formulate."
Being satisfied that the reasoning employed and the result reached in the original opinion on file herein was right the petition for a rehearing is denied.
Rehearing denied.
KIMBALL J. and BLUME, J. concur. *Page 317