Opinion
Nos. 36078, 36079 and 36080
Decided March 9, 1960.
Taxation — Highway use tax — Reciprocity agreements — Effect of later enactment of axle-mile tax — Res judicata.
APPEALS from the Board of Tax Appeals.
The highway use tax assessments, levied against the appellees in these three causes, which are the subjects of these appeals, are the identical assessments which, with others not here involved, were considered by this court in the case of Geo. F. Alger Co. v. Bowers, Tax Commr., 164 Ohio St. 122, decided July 27, 1955. They were contested on the ground that the taxes were not payable by reason of exempting provisions of reciprocity agreements. In that case this court reversed the decision of the Board of Tax Appeals which affirmed the orders of the Tax Commissioner levying the assessments. That, in effect, was a reversal by this court of the assessment orders of the commissioner.
In September 1955, this court issued to the Board of Tax Appeals a mandate reading in part: "It is ordered and adjudged by this court that the decision of the said Board of Tax Appeals be and the same hereby is reversed, for the reasons stated in the opinion rendered herein."
In October 1955, that mandate was certified to the Tax Commissioner by the Board of Tax Appeals. The certification reads in part: "This mandate of the Supreme Court * * * is hereby certified to the Tax Commissioner of Ohio to the end that effect may be given to said mandate and to the decision, judgment, and opinion in this case as rendered by the Supreme Court of Ohio."
Thereafter, the Tax Commissioner issued final orders confirming the same highway use tax assessments against the appellees herein.
On appeals, the Board of Tax Appeals reversed the final orders of the Tax Commissioner and remanded the assessments with instructions to cancel them, stating in its entry that "this board, and also the Tax Commissioner, must follow the orders of the Supreme Court * * * and when the Supreme Court issues a mandate to the Board of Tax Appeals, in and by which a decision of the Board of Tax Appeals is reversed, this board must see to it that the decision of the Supreme Court is followed."
Appeals from the Board of Tax Appeals bring the causes to this court for review.
Mr. Edmund M. Brady, Mr. John M. Veale and Mr. Taylor C. Burneson, for appellant.
Mr. Mark McElroy, attorney general, Mr. Alvin C. Vinopal and Mr. William P. Meehan, for appellant.
Appellant contends that the mandate of the Supreme Court, above quoted, does not bar him from confirming his original assessment orders against the appellees "where the opinion of the court does not discuss or decide" the applicability of the reciprocity agreements to the Highway Use Tax Act; that the doctrine of res judicata is not applicable; and that the decisions of the Board of Tax Appeals should be reversed and remanded with instructions to the board to pass on the merits of the reciprocity agreements.
This court is not in accord with appellant's contentions. The appellees herein were parties involved in the Geo. F. Alger case, supra, the assessments involved are identical, and the reciprocity agreements involved were before the court at the time of that decision. The issues of the effectiveness and applicability of the reciprocity agreements to the highway use tax were litigated and determined therein. The doctrine of res judicata is applicable here.
The decisions of the Board of Tax Appeals are affirmed.
Decisions affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.
PECK, J., not participating.