OPINION ON REHEARING Appellant has filed a petition for rehearing. It is asserted therein that in the prevailing opinion rendered in this case the rule announced in Christensen vs. Sikora, 57 Wyo. 57, 112 P.2d 557, was disregarded. Counsel are in error. That was a case involving the Workmen's Compensation law of this state, where the *Page 338 trial court, Judge Burgess sitting, had found upon ampel evidence that "the business of the employer was running a meat market and a grocery store and workshop where machinery was used" and that "the duties of the employee required him to wait upon trade in said grocery store, meat market and workshop". The law (§ 1, ch. 118, L. of Wyo. 1939; § 1 ch. 128, L. of Wyo. 1937), declared "workshops where machinery is used" and "meat markets" to be "extra-hazardous occupations". It was urged that because the State Treasurer, the executive officer charged with the duty of administering the Workmen's Compensation law had always regarded grocery stores without more as not affected by that law the rule of contemporaneous construction placed upon a law by an official thus situated must prevail. We pointed out that "the courts are not bound to follow, or justified in following, an executive construction which is clearly erroneous". As the facts found in the Sikora case brought the employee squarely within the terms of the law defining extra-hazardous occupations the award made by the district court to the employee was affirmed. In brief, the general administrative rule announced by the Treasurer fell before the established facts in the case and the plain terms of the law.
In the instant case the prevailing opinion specifically said "if we were convinced that the construction of these administrative officers (the Attorneys General) acquiesced in by the Board as applied to the law before us was clearly wrong, we would be obliged to so say". We reached the conclusion, however, upon reasons which we regard as conclusive that neither the highest law officers of the state nor the Board were wrong and we ruled accordingly.
In the petition for a rehearing it is intimated that a provision of the Constitution of Wyoming might be *Page 339 infringed by the Selective Sales Tax Act of 1937. It is a sufficient answer to this contention that neither before the Board, the district court nor this court, was such a question even hinted at as being involved. The pleadings of the appellant in the record before us, its assignments of error and its briefs here will be searched in vain for the slightest suggestion of such a point being in the case. We have repeatedly declared the rule to be that "points raised for the first time in a petition for rehearing will ordinarily not be considered". First National Bank of Green River vs. Ennis et al., 45 Wyo. 165,15 P.2d 1111, and cases cited. And 3 Am. Jur. 350, 351, § 806, says that:
"In civil cases it is a well-recognized rule that questions not advanced on the original hearing will not be considered on the petition for a rehearing. This must necessarily be so, because if new questions could be raised on a rehearing, there would be no end to a case on appeal or error. This rule is especially applicable in the case of a question as to the constitutionality of a statute."
See Cook vs. Marshall Co., ___ Iowa ___, 95 N.W. 409; Mollohan vs. Patton, 110 Kan. 663, 205 P. 643; Poston vs. Ebert,221 Mich. 361, 193 N.W. 201; State ex rel. and to Use of Missouri Pac. R. Co., vs. Public Service Commission of Missouri, ___ Mo. ___, 297 S.W. 47; Pingree National Bank of Ogden vs. Weber Co.,54 Utah 599, 183 P. 334.
Counsel seem to feel aggrieved because the prevailing opinion pointed out the consequences which would ensue if the contention of appellant were upheld. They insist that the court should not have done this because it constitutes an "unjust reflection on the integrity of the company". If counsel see fit to draw such an inference it is hardly the fault of the court which must decide the causes submitted to it and supply the reasons for its action. Doubtless every litigant who claims money and *Page 340 property as his own when a court enters a judgment against him might entertain the same feeling.
Petitioner insists that the Selective Sales Tax Act involved establishes a "consumers tax and nothing else". The legislature evidently thought otherwise, for that body said, as indicated in our original opinion, that the "consumer and user of any single purchase of twenty-four (24c) cents or less shall not berequired to pay the tax provided herein" and that "the tax ofone percent herein imposed" upon such purchases "shall beassumed and paid for by the vendor who shall keep a detailed segregated record of all such sales" (subsection (e) of section 4 of the Act aforesaid; italics supplied). Language clearer in meaning or more positive in its command could hardly be employed.
The remaining material in the petition for rehearing is merely a reiteration of the contentions of the appellant presented in its original brief and argument here. A majority of the court gave those contentions a most careful and thorough examination in the light of the facts and law involved. The result was adverse to appellant's claims. We have found nothing at all in this petition which convinces us that our reasoning was at fault or that we were mistaken in reaching that result. It necessarily follows that the petition for rehearing should be denied.
KIMBALL, J., concurs.
BLUME, C.J., dissents. *Page 341