Miller Lumber Company v. Floyd

Decision Date05 October 1925
Docket Number149
Citation275 S.W. 741,169 Ark. 473
CourtArkansas Supreme Court

Appeal from Pulaski Chancery Court; G. W. Hendricks, Special Chancellor; affirmed.


This suit was originally brought in the chancery court by appellants against appellees to enjoin them from enforcing an act of the Legislature approved February 14, 1923, and commonly known as our Severance Tax Act.

Appellees filed a demurrer to the complaint which was overruled by the chancery court, and appellees refusing to plead further, a final decree was entered of record granting the relief prayed for. An appeal was duly prosecuted to this court, and it was held that the act was not a violation of our Constitution and the validity of the act was sustained by this court as an occupation tax. The decree of the chancellor was therefore reversed, and the cause remanded for further proceedings not inconsistent with the opinion. Floyd v. Miller Lumber Co., 160 Ark. 17.

Upon a remand of the case, appellants filed an amended complaint in which they raised issues as to the proper construction of the act and its applicability to them. The chancery court sustained a demurrer to the amended complaint and gave appellants leave to amend further. Appellants refused to plead further, and it was decreed that the amended complaint be dismissed for want of equity. The case is again here on appeal.

Decree affirmed.

W R. Satterfield, Hughes & Hughes, Daggett & Daggett and Coleman, Robinson & House, for appellant.

H W. Applegate, Attorney General, and Brooks Hays, Assistant, for appellee.

John I. Moore, amicus curiae.


HART, J., (after stating the facts.)

This is the second appeal in this case. As above stated, the opinion on the former appeal is reported in 160 Ark. 17 under the style Floyd v. Miller Lumber Company. Counsel for appellants say that the original complaint was drafted with a view of raising the sole issue of the constitutionality of the Severance Tax Act. The Legislature of 1923 passed an act to levy a privilege or license tax upon all persons, firms, and corporations engaged in the business of severing our natural resources from the soil or water. General Acts, of Arkansas, 1923, p. 67.

Appellants attacked the act on the ground that it was in violation of so much of § 5, art. 16, of our Constitution, which reads as follows: "All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value, provided the General Assembly shall have power from time to time to tax hawkers, peddlers, ferries, exhibitions and privileges, in such manner as may be deemed proper," etc.

Four members of this court for different reasons held that the statute was a tax upon persons engaged in a particular line of business, and that it was not a property tax.

Having reached the conclusion that the tax levied by the statute was a tax on business and not on property, four members of this court for different reasons united in a decision that the tax was an occupation tax and not a property tax, and therefore was not in violation of the provision of the Constitution above quoted. Whether this decision was right or wrong, it is the law of the case; it is res judicata. The rule has been long established in this State and uniformly adhered to that in the same cause this court will not reverse nor revise its former decisions. Fortenberry v. Frazier, 5 Ark. 200; Porter v. Doe, 10 Ark. 186; Taliaferro v. Barnett, 47 Ark. 359, 1 S.W. 702; Vogel v. Little Rock, 55 Ark. 609, 19 S.W. 13; United States Annuity & Life Ins. Co. v. Peak, 129 Ark. 43, 195 S.W. 392; Danaher v. S. W. Tel. & Tel. Co., 137 Ark. 324, 209 S.W. 74; Ft. Smith Lbr. Co. v. State of Arkansas, 138 Ark. 581; Stuart v. Barron, 148 Ark. 380, 230 S.W. 569; Mo. Pac. Rd. Co. v. Walnut Ridge-Alicia Road Imp. Dist., 160 Ark. 297, 254 S.W. 1065; St. L. S. F. R. Co. v. Kirkpatrick, 162 Ark. 65, 257 S.W. 368, and numerous other cases cited under the head of Appeal and Error in 1 Crawford's Digest, §§ 405 and 5 Crawford's Digest, § 405. This general rule is grounded on public policy, experience, and reason. If all questions that have been determined by this court are to be regarded as still open for discussion and revision in the same cause, there would be no end of their litigation until the financial ability of the parties and ingenuity of their counsel had been exhausted. A rule that has been so long established and acted upon and that is so important to the practical administration of justice in the courts should be followed and not departed from.

On this question in the case of Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 61 L.Ed. 1148, 37 S.Ct. 506, Mr. Justice CLARK, speaking for the Supreme Court of the United States, said: "This doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, 'of public policy and private peace,' which should be cordially regarded and enforced by the courts to the end that rights once established by the final judgment of the court of competent jurisdiction shall be recognized by those who are bound by it in every way, wherever the judgment is entitled to respect. Kessler v. Eldred, supra."

But counsel for appellants claim that the general rule of the law of the case should not be applied because their amended complaint has broadened the issues and raised among other things the question of the proper construction of the act and its applicability to appellants. This however does not bring them within any recognized exception to the general rule.

Counsel for appellants admit that their original complaint was drafted with the view of raising the sole issue of the constitutionality of the Severance Tax Act and thereby admit that that issue was squarely and correctly submitted to the court for its hearing and determination. The act was held to be constitutional on the ground that it was an occupation tax, and no testimony or raising of additional issues as to the construction of the act or its applicability to appellants can prevent our former decision and judgment from being the law of the case. Indeed, it is difficult to see how any sort of testimony could change the issue as to the constitutionality of the act. That issue was squarely presented by a construction of the act and the section of our Constitution which it was claimed was violated.

Whatever views the different members may entertain as to the soundness...

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