Peter Kiewit Sons' Co. v. Department of Revenue
| Decision Date | 21 February 1975 |
| Docket Number | No. 12754,12754 |
| Citation | 531 P.2d 1327,166 Mont. 260 |
| Parties | PETER KIEWIT SONS' CO., a corporation, Plaintiff and Appellant, v. DEPARTMENT OF REVENUE et al., Defendants and Respondents. |
| Court | Montana Supreme Court |
Garlington, Lohn & Robinson, Lawrence F. Daly (argued), Sherman v. Lohn (argued), Missoula, for appellant.
Terrence B. Cosgrove (argued), Helena, Poore, McKenzie & Roth, Robert A. Poore (argued), Butte, for respondents.
This is an appeal by plaintiff from a summary judgment for defendant granted after a hearing.
On January 10, 1973, this Court decided cause No. 12199, Peter Kiewit Sons' Co. v. State Board of Equalization, et al., 161 Mont. 140, 505 P.2d 102, where we upheld the validity of Chapter 35, Title 84, R.C.M.1947, as amended.
On July 18, 1973, plaintiff-appellant, hereinafter referred to as Kiewit, filed a complaint in Lewis and Clark County district court, identical to the complaint in cause No. 12199, differing only in amounts of taxes paid at different times. Kiewit sought a recovery of taxes paid and a declaration of unconstitutionality of Chap. 35, Title 84, R.C.M.1947, as amended.
Defendants-respondents, hereinafter referred to as the Department of Revenue, moved to dismiss the complaint on the grounds of res adjudicata, in that the original Kiewit case controlled. The motion to dismiss was later graduated under Rule 12(b), M.R.Civ.P., to a motion for summary judgment.
Kiewit's position is that this Court declared the law to be valid only if enforced in a certain manner. Then, Kiewit reasons, six months later, in July of 1973, it would demonstrate that the law was invalid because the manner of enforcement did not follow guidelines laid out by this Court. Kiewit engages in a rather tortuous reasoning: The decision of this Court in upholding the validity of the public contractors' gross receipts tax was conditional. These conditions were, according to Kiewit, (1) that public contractors were exempt from competency requirements of the Act, and (2) that the law could not result in revenue being raised.
Then Kiewit argues: (1) The Department of Revenue currently enforces the entire law against public and private contractors alike and (2) the state collects money in excess of credits and refunds and thus instead of being a revenue enforcing measure, it is actually a revenue raising measure.
As to Kiewit's first contention, if there be a problem it is strictly an administrative one and does not, in our view, approach a constitutional problem. Kiewit charges there has been interference with federal highway administration procurement activities. This may be so, but we are unable to see where a federal-state conflict at the administrative level makes a state law unconstitutional.
As to Kiewit's second point, it may be that Kiewit would be entitled to a refund or some other administrative remedy, but it is obvious that Kiewit seeks but one thing-a declaration of unconstitutionality. Judge Meloy found the original Kiewit decision res adjudicata on the issue of constitutionality and we affirm.
Kiewit insists that the only basis for this Court's conclusion that the Act was not discriminatory as to public contractors was that if the Act were properly enforced, it would result in a 'washout' that is, refunds of personal property taxes and contractors' income taxes would offset the 1% gross receipts tax. Kiewit reads our opinion much too narrowly. We held there that a reasonable classification for tax purposes lay between private and public contractos.
The original Kiewit case involved proceeds from an Army Corps of Engineers contract dated October 9, 1970. At that time, as pointed out in the original Kiewit opinion, provision #58(f) prohibited the contractor from taking advantage of credits available under the provisions of section 84-3514, R.C.M.1947. Because of that provision and...
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Montana v. United States
...no different from the first, invoked the doctrines of collateral estoppel and res judicata to affirm the dismissal of the complaint. Kiewit II. Thereafter the District Court heard the instant case on the merits, and concluded that the United States was not bound by Kiewit I and that the tax......
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United States v. State of Mont.
...against the federal government because the Act complied with equal force to all public contractors. In Peter Kiewit Sons' Co. v. Department of Revenue, 166 Mont. 260, 531 P.2d 1327 (1975) Kiewit # 2, the Montana Supreme Court reaffirmed its earlier decision and held that Kiewit # 1 was res ......
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Albano v. United States
...in a state court case brought by a party that was indisputably in privity with the United States. See Peter Kiewit Sons' Co. v. Department of Revenue, 531 P.2d 1327 (Mont. 1975). In short, although the federal courts may have abandoned the mutuality principle for cases involving earlier fed......