No. 12754 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

PETER KIEWIT SONS ' CO. , a 

Corporation, 

Plaintiff and Appellant, 

DEPARTMENT OF REVENUE and the TAX APPEAL 

BOARD OF THE STATE OF MONTANA, J. MORLEY 

COOPER, Chairman, HELEN PETERSON and RAY J. 

WAYRYNEN, as members thereof, 

Defendants and Respondents. 

Appeal from: District Court of the First Judicial District, 

Honorable Peter G. Meloy, Judge presiding. 

Counsel of Record : 

For Appellant : 

Garlington, Lohn and Robinson, Missoula , Montana 

Lawrence F. Daly argued and Sherman V. Lohn appeared, 

Missoula, Montana. 

For Respondents : 

Terence B. Cosgrove argued, Helena, Montana 

Poore, McKenzie & Roth, Butte, Montana 

Robert A. Poore argued, Butte, Montana 

Submitted: September 11, 1974 

Decided: fEB 2 1 1975 

Filed : e&B 2 1 1975 
!&.Justice Wesley Castles delivered the Opinion of the Court. 

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 could demonstrate 

that the law was invalid because the manner of enforcement did 

not follow guidelines laid out by this Court. ~iewit engages in 

a rather tortuous reasoning: The decision of this Court in upholding the validity of the public contractorst gross receipts 

tax was conditional. These conditions were, according to ~iewit, 

(1) that public contractorsr 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. 

-2- 
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 contractors. 

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 because of ignorance and indifference, 

many contractors were not applying for credits they were entitled 

to. The Army Corps of Engineers contract dated May 28, 1971, 

had a similar provision, #66, which prohibited contractors from 

taking advantage of credits. However, on December 15, 1971, 
the Corps notified Kiewit to obtain all refunds and credits 

available under the Montana law and to ignore general provision #66. So, now, Kiewit is seeking all credits and refunds. 

The instant case concerns gross receipt taxes paid over and 

above any credits and refunds. 

Kiewit cites State ex rel. Schultz-Lindsay Construction 

Company v. State Board of Equalization, 145 Mont. 380, 403 P.2d 

635, for the proposition that a gross receipt tax on nonresident 

contractors is arbitrary and unreasonable. In the original 

Kiewit case we discussed Schultz-Lindsay and distinguished it 

and we will not repeat the discussion here. 

In Garrett Freightlines, Inc. v. Montana Railroad and 

Public Service Cornmln, 161 Mont. 482, 491, 507 P.2d 1040, decided March 15, 1973, just two months after the original Kiewit 

case, this Court in a 3 to 2 decision held a statute, assessing 

.575 of 1 percent of gross operating revenue on licensed public 

carriers while e~empting~directly competing private carriers 

and exempt carriers, to be unconstitutionally arbitrary and discriminatory. There the Court said: 

"All this goes to show the vast difference in fact 

situation here from that in Peter Kiewit Sons' Co. 

v. State Board of Equalization, 161 Mont. 140, 

505 P.2d 102. In that case a complaint was raised 

as to the public contractors1 license act being unconstitutional because the levy was not uniform 

and was discriminatory. We there held that since 

it appeared that all public contractors had to pay 

the tax, that all members of the class were treated 

alike. Under the facts there we also held that a 

distinction between public and private contractors 

was not arbitrary and capricious; it being clear 

from the record that the public contractors' license act was intended to operate as a revenue 

enforcing measure as pointed out in the opinion and 

a like situation did not appear as to private 

contractors." 

In Garrett the unfairness of the tax as between competing 

businesses was shown. In the instant case there is no unfairness 

as between competing contractors. All public contractors are 
treated alike. 

We have discussed the position of Kiewit on the merits. 

The original Kiewit decision is res adjudicata since the parties, 

issues, and facts are all the same in their relevant particulars. 

The trial court concluded that the only factual differences 

were inconsequential against the impact of the doctrines of res 

adjudicata, collateral estoppel or stare decisis. We agree. 

We affirm the judgment of the district court. 

We concur: 

, 

Justices /