ALBUQUERQUE Broad. CO. v. BUREAU OF REVENUE

• Decision Date: 28 February 1950
• Docket Number: No. 5236,5236
• Parties: ALBUQUERQUE BROADCASTING CO. v. BUREAU OF REVENUE et al.
• Court: New Mexico Supreme Court

54 N.M. 133

215 P.2d 819

ALBUQUERQUE BROADCASTING CO.

v.BUREAU OF REVENUE et al.

No. 5236.

Supreme Court of New Mexico.

Feb. 28, 1950.

[215 P.2d 819, 54 N.M. 134]

Joe L. Martinez, Atty. Gen., Walter R. Kegel, Asst. Atty. Gen., Louis C. Lujan, Santa Fe, for Bureau of Revenue.

Hannett & Hannett, Albuquerque, for appellee.

Don Petty, Washington, D. C., amicus curiae.

BRICE, Chief Justice.

This is the second appeal of this case. For the purpose and nature of this action see Albuquerque Broadcasting Co. v. Bureau of Revenue, 51 N.M. 332, 184 P.2d 416, 431. The appellant and appellee in the first appeal have their status as litigants reversed in this, the second appeal. In the former appeal the judgment was reversed and cause remanded with instructions. The original opinion provided: 'The judgment is reversed and cause remanded with instructions to the district court to set aside its judgment, grant appellant a new trial, and proceed therein not inconsistent herewith.'

We stated in the opinion on rehearing: 'The appellant by its pleadings and the Court by its findings have segregated the taxable from the non-taxable, except as to amount, and that may be determined upon a new trial, which will be limited to a determination of the amount paid on local broadcasting. All other funds collected by appellee must be returned to appellant.'

The mandate of this court is in the following language:

'The State of New Mexico to the District Court sitting within and for the County of Santa Fe, Greeting:

'Whereas, in a certain cause lately pending before you, 19984 on your civil docket, wherein Albuquerque Broadcasting Company, a corporation, was plaintiff, and Bureau of Revenue of the State of New Mexico, R. L. Ormsbee, Commissioner of said Bureau, and Earle Kerr, Director of theSchool Tax Division of said Bureau, were defendants, by your consideration in that behalf judgment was entered against said plaintiff, and

'Whereas, said cause and judgment were afterwards brought into our Supreme Court for review by plaintiff by appeal, whereupon such proceedings were had that on August 11, 1947, and September 10, 1947, opinions were handed down and the judgment of said Supreme Court was entered reversing your judgment aforesaid and remanding said cause to you;

'Now, Therefore, this cause is hereby remanded to you with instructions to setaside your judgment, grant appellant a new trial, and proceed therein not inconsistent with said opinions and the judgment of this Court.'

The new trial was limited to entering judgment for the appellant Broadcasting Company (appellee here) for the money paid by it as taxes, less the amount paid for local broadcasting. The amount for which judgment was ordered to be entered was easy of determination. But in violation of this Court's mandate, the district court permitted the plaintiff to amend its complaint, and then proceeded to try the whole case anew. From the new evidence introduced (some 500 pages) the district court came to the conclusion that this court had erred, and thereupon entered judgment against defendant for the whole sum sued for, in direct violation of the opinion and mandate of this court.

Our opinion was, and is, the law of the case, which the district court must strictly follow, State ex rel. Del Curto v. District Court, 51 N.M. 297, 183 P.2d 607; and in case there is any conflict between this Court's opinion and its mandate, the mandate must give way to the opinion. First National Bank of El Paso v. Cavin, 28 N.M. 468, 214 P. 325. As there could be no new trial of the issues, no amendment of the complaint was authorized, City of Orlando v. Murphy, 5 Cir., 94 F.2d 426.

The judgment is reversed and cause remanded to the district court with instructions to set aside its judgment; and thereafter enter the following orders:

(1) Striking plaintiff's (appellee's) amended complaint from the files.

(2) Striking all proceedings (except the order setting aside the original district court judgment) had by the trial court after the filing of the mandate of the Supreme Court in the first...