No. 12754 

### INTHE 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 

## 11975 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, thisCourt decided cause No. 12199, Peter Kiewit Sons' Co. v. StateBoard of Equalization, et al., 161Mont. 140, 505 P.2d 102, where 

### we upheld the validity of Chapter 35, Title 84, R.C.M. 1947, asamended. On July 18, 1973, plaintiff-appellant, hereinafter 

### referred toasKiewit, filed a complaint inLewis and Clark County districtcourt, identical tothe complaint incause No. 12199, differing only inamounts of taxes paid atdifferent times. Kiewit sought a recovery of taxes paid and a declarationof unconstitutionality of Chap. 35, Title 84, R.C.M. 1947, asamended. Defendants-respondents, hereinafter referred toasthe Department of Revenue, moved todismiss the complaint on the grounds of res adjudicata, inthat the original Kiewit case con

## - trolled. The motion todismiss was later graduated under Rule 12(b),M.R.Civ.P., toa motion for summary judgment. Kiewit's position is that thisCourt declared the law to be valid only if enforced ina certainmanner. Then, Kiewit reasons, sixmonths later, inJuly of 1973, it could demonstrate that the law was invalid because the manner of enforcement did not follow guidelines laid out by thisCourt. 

### ~iewit engages in
a rather tortuous reasoning: The decision of this Court inupholding 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 lawcould not result inrevenue being raised. Then Kiewit argues: (1)The Department of Revenue currentlyenforces the entire law against public and private contractors alikeand (2) the statecollectsmoney inexcess of credits and refunds and thus instead of being a revenue enforcing measure, it is actually a revenue raisingmeasure. -2-As toKiewit's firstcontention, if there be a problem it is strictlyan administrative one and does not, inour view, approach a constitutional problem. Kiewit charges there has been interference with federal highway administration procurement activities. This may be so, but we areunable to see where a federal-state conflict atthe administrative level makes a state law unconstitutional. As toKiewit's second point, it may be that Kiewitwould be entitled toa 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 astopublic contractorswas that if the Act 

### were properly enforced, it would result ina "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. Atthat time,
aspointed 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 toobtain allrefunds and credits available under theMontana law and toignore general provision #66. So, now, Kiewit is seeking allcredits and refunds. The instant case concerns gross receipt taxes paid over and above any credits and refunds. Kiewit cites Stateex 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 arbitraryand unreasonable. In the original Kiewit case 

### we discussed Schultz-Lindsay and distinguished it and 

### we 

### willnot repeat the discussion here. In Garrett Freightlines, Inc. v. Montana Railroad and Public Service Cornmln, 161Mont. 482, 491, 507 P.2d 1040, decided March 15, 1973, just two months after the original Kiewit case, thisCourt ina 3 to 2 decision held a statute, assessing .575 of 1percent of gross operating revenue on licensed public carrierswhile e~empting~directly competing private carriers and exempt carriers, tobe unconstitutionally arbitrary and discriminatory. There the Court said: "All thisgoes to show the vast difference infact situationhere from that inPeter Kiewit Sons' Co. v. State Board of Equalization, 161Mont. 140, 505 P.2d 102. In thatcase a complaint was raised as tothe public contractors1 license act being unconstitutional because the levy 

### was not uniform and was discriminatory. We there held that since it appeared that allpublic contractors had topay the tax, that allmembers of the class were treated alike. Under the factsthere 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 actwas intended to operate as a revenue enforcing measure aspointed out in the opinion and a like situation did not appear as toprivate contractors." In Garrett the unfairness of the tax asbetween competing businesses was shown. In the instant case there isno unfairness
asbetween competing contractors. Allpublic 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 

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