montana argued december decided february montana levies gross receipts tax upon contractors public private construction projects public contractor may credit gross receipts tax payments personal property corporate income individual income taxes remaining gross receipts tax liability customarily passed form increased construction costs governmental unit financing project contractor federal project montana brought suit state contending gross receipts tax unconstitutionally discriminated government companies dealt litigation directed financed less month later government brought action federal district challenging constitutionality tax stipulation case continued pending resolution litigation concluded decision montana upholding tax kiewit found distinction public private contractors consistent mandates supremacy equal protection clauses solicitor general direction contractor abandoned request review contractor instituted second action regarding certain tax payments different kiewit montana finding second claim essentially different first invoked doctrines collateral estoppel res judicata affirm dismissal complaint kiewit ii thereafter district heard instant case merits concluded bound kiewit tax violated supremacy clause held collaterally estopped challenging prior judgment montana pp interests underlying related doctrines collateral estoppel res judicata right question fact distinctly put issue directly determined competent jurisdiction disputed subsequent suit parties privies southern pacific similarly implicated nonparties assume control litigation direct financial proprietary interest seek redetermine issues previously resolved undisputed exercised sufficient control kiewit litigation actuate principles collateral estoppel pp precise constitutional claim advanced litigation presented resolved government kiewit pp factual legal context issues case arise materially changed since kiewit thus normal rules preclusion operate relieve parties redundant litigation identical question statute application taxpayer status tait western maryland commissioner sunnen distinguished pp though preclusion may inappropriate issues law arise successive actions involving unrelated subject matter exception inapposite since government demands closely aligned time subject kiewit case party compelled accept state determination issues essential resolution federal questions rather government freely without reservation submitte federal claims decision state courts ha decided england medical examiners since government alleged unfairness inadequacy state procedures voluntarily submitted estopped relitigating issues previously adjudicated pp marshall delivered opinion burger brennan stewart blackmun powell rehnquist stevens joined rehnquist filed concurring statement post white filed dissenting opinion post robert poore special assistant attorney general montana argued cause appellants brief terry cosgrove special assistant attorney general robert corcoran stuart smith argued cause brief solicitor general mccree assistant attorney general ferguson david english carmack briefs amici curiae urging reversal filed louis lefkowitz attorney general ruth kessler toch solicitor general francis dow assistant attorney general state new york slade gorton attorney general richard holmquist senior assistant attorney general greg montgomery assistant attorney general state washington attorneys general officials respective jurisdictions follows marshall coleman attorney general virginia john macconnell assistant attorney general john lasota acting attorney general arizona ian macpherson assistant attorney general allen olson attorney general north dakota kenneth jakes special assistant attorney general avrum gross attorney general alaska joseph donohue assistant attorney general paul douglas attorney general nebraska ralph gillan assistant attorney general frank burch attorney general maryland gerald langbaum assistant attorney general ronald amemiya attorney general hawaii bruce honda deputy attorney general robert list attorney general nevada james thompson chief deputy attorney general james redden attorney general oregon william baxley attorney general alabama herbert burson john rooney acting attorney general wyoming james douglass senior assistant attorney general philip jacobsen acting attorney general guam slade gorton attorney general washington richard holmquist senior assistant attorney general bill clinton attorney general arkansas martin nevrla assistant attorney general robert shevin attorney general florida maxie broome assistant attorney general chauncey browning attorney general west virginia thomas steele assistant attorney general richard turner attorney general iowa george murray assistant attorney general wayne kidwell attorney general idaho theodore spangler toney anaya attorney general new mexico jan unna assistant attorney general theodore sendak attorney general indiana donald bogard miguel attorney general puerto rico victor cruz ojeda frank kelley attorney general michigan macfarlane attorney general colorado steven kaplan assistant attorney general justice marshall delivered opinion state montana imposes one percent gross receipts tax upon contractors public private construction projects mont rev codes ann supp public contractor may credit gross receipts tax payments personal property corporate income individual income taxes remaining gross receipts liability customarily passed form increased construction costs governmental unit financing project issue appeal whether prior judgment montana upholding tax precludes contesting constitutionality whether tax discriminates federal government violation supremacy clause peter kiewit sons contractor federal dam project montana brought suit state contending montana gross receipts tax unconstitutionally discriminated companies dealt litigation directed financed less month state suit filed government initiated challenge constitutionality tax district district montana stipulation parties instant case continued pending resolution litigation litigation concluded unanimous decision montana sustaining tax peter kiewit sons state board equalization mont kiewit found distinction public private contractors consistent mandates supremacy equal protection clauses contractor subsequently filed notice appeal abandoned request review direction solicitor general app juris statement instituted second action state seeking refund certain tax payments different involved kiewit determining contractor second legal claim material respects identical first montana invoked doctrines collateral estoppel res judicata affirm dismissal complaint peter kiewit sons department revenue mont kiewit ii decision kiewit ii district heard instant case merits divided opinion concluded bound kiewit decision struck tax violative supremacy clause supp majority began premise supremacy clause immunizes federal government direct taxation also indirect taxation operates discriminate government transacts business see detroit phillips chemical dumas independent school private contractors subject montana gross receipts tax reasoned statute impermissibly singled federal government dealt disparate treatment tax applied state municipal well federal contractors majority view negate statute discriminatory character although contractors state projects might pass amount tax liability state form higher construction costs montana recoup additional expenditure revenue tax generated contrast federal contractors shifted burden increased costs receive offsetting revenues accordingly concluded statute encroached upon immunity discriminatory taxation enjoyed federal government supremacy clause one judge argued dissent estopped challenging constitutionality tax statutory scheme encompassed receipts municipal state well federal contractors discriminatory within meaning phillips chemical dumas independent school supra kilkenny dissenting noted probable jurisdiction find constitutional question presented appeal determined adversely prior state proceeding reverse grounds collateral estoppel without reaching merits ii fundamental precept adjudication embodied related doctrines collateral estoppel res judicata right question fact distinctly put issue directly determined competent jurisdiction disputed subsequent suit parties privies southern pacific res judicata final judgment merits bars claims parties privies based cause action cromwell county sac lawlor national screen service moore federal practice pp ed hereinafter moore restatement second judgments tent draft mar merger bar collateral estoppel issue actually necessarily determined competent jurisdiction determination conclusive subsequent suits based different cause action involving party prior litigation parklane hosiery shore scott collateral estoppel judgment harv rev restatement second judgments tent draft apr issue preclusion application doctrines central purpose civil courts established conclusive resolution disputes within jurisdictions southern pacific supra hart steel railroad supply preclude parties contesting matters full fair opportunity litigate protects adversaries expense vexation attending multiple lawsuits conserves judicial resources fosters reliance judicial action minimizing possibility inconsistent decisions interests similarly implicated nonparties assume control litigation direct financial proprietary interest seek redetermine issues previously resolved observed souffront compagnie des sucreries persons whose benefit whose direction cause action litigated said strangers cause ne prosecutes defends suit name another establish protect right assists prosecution defense action aid interest much bound party record see schnell peter eckrich sons cf zenith radio hazeltine research preclusion nonparties falls rubric collateral estoppel rather res judicata latter doctrine presupposes identity causes action cause action nonparty vicariously asserted differs definition subsequently seeks litigate right see merriam saalfield restatement second judgments comment tent draft apr moore pp note developments law res judicata harv rev exercised control kiewit litigation dispute government stipulated required kiewit lawsuit filed reviewed approved complaint paid attorneys fees costs directed appeal state district montana appeared submitted brief amicus montana directed filing notice appeal effectuated kiewit abandonment appeal advice solicitor general app juris statement iii determine appropriate application collateral estoppel instant case necessitates three inquiries first whether issues presented litigation substance resolved kiewit second whether controlling facts legal principles changed significantly since judgment finally whether special circumstances warrant exception normal rules preclusion review record kiewit dispels doubt plaintiff raised montana decided precise constitutional claim advances complaint kiewit contractor alleged gross receipts tax accompanying regulations unconstitutional inter alia illegally discriminate plaintiff agencies instrumentalities business deny due process law equal protection laws illegally impose tax plaintiff uniform upon class subjects illegally improperly interfere federal government power select contractors schedule construction conflict federal law policy regulating federal procurement illegally violate immunity federal government instruments including plaintiff state control performance functions illegally frustrate federal policy selecting lowest possible bidder app federal government treated manner state montana treats subdivisions municipalities discrimination federal government claim private contractors paying tax public contractors however according phillips chemical dumas school moses lake homes grant county required state give special treatment received federal government act involved treats federal government manner treats deal part state government kiewit illegally discriminate plaintiff agencies instrumentalities business violation supremacy clause article vi clause fourteenth amendment illegally impose tax plaintiff contractors subcontractors uniform upon class subjects violation fourteenth amendment illegally force america pay construction private party corporation violation supremacy clause art vi cl illegally interfer federal government free choice choose contractors frustrat policy choosing lowest bidder violation federal procurement law supremacy clause art iv sic cl app relying commissioner sunnen argues collateral estoppel extends contexts controlling facts applicable legal rules remain unchanged government view factual stasis missing contract issue kiewit contained critical provision contracts involved instant litigation contract army corps engineers kiewit unable take advantage credit provisions gross receipts tax however altered policy since required montana contractors seek available refunds credits see app government reads kiewit decision montana proceeded assumption kiewit able avail offsetting income property tax credits might total washout gross receipts tax liability thus according government holding kiewit montana statute discriminate circumstances federal government contractual arrangement tax might financial impact brief uncontroverted evidence case establishes taking credits available federal contractors still subject gross revenue tax one percent app juris statement government submits factual premise kiewit holding absent disagree course true changes facts essential judgment render collateral estoppel inapplicable subsequent action raising issues see certain land irving place street metcalf commissioner alexander commissioner moore pp pp construe opinion kiewit predicated factual assumption gross receipts tax cancel public contractors took available refunds credits montana adverted washout possibility discussing origin gross receipts tax rather measure prior enactment statute certain public contractors evaded assessment local property taxes shifting equipment one construction site another filing corporate personal income tax returns fairly reflect amount profit attributable construction projects within state establishing flat percentage tax gross receipts credits available income property tax payments montana legislature sought remove incentive contractors dissemble location taxable equipment source taxable revenues statutory scheme contractor paid substantial amount property income taxes might claiming payments credits effectively cancel gross receipts tax liability practice noted kiewit statute resulted total offset gross receipts payments part provisions federal contracts significantly however rely potential absence tax liability analysis kiewit constitutional challenge indeed even allude washout potential course discussion focused rather rationality classification public private contractors parity treatment public contractors ibid conclusion washout potential tax controlling significance kiewit reinforced montana holding kiewit ii contractor alleged gross receipts tax liability exceeded property income tax credits argued basis decision kiewit act properly enforced result washout kiewit ii montana rejected reading kiewit much narro offset possibility materialized kiewit view fact inconsequential warrant relitigation statute constitutionality view absence total washout altering facts essential judgment kiewit thus unless major changes law governing intergovernmental tax immunity since kiewit government reliance commissioner sunnen misplaced sunnen involved tax status certain income generated license agreement particular tax period although previous litigation settled status income agreement earlier tax years declined give collateral estoppel effect prior judgment significant change legal climate underlying sunnen decision concern modifications controlling legal principles render previous determination inconsistent prevailing doctrine determination perpetuated succeeding year taxpayer involved original litigation accorded tax treatment different given taxpayers class result inequalities administration revenue laws discriminatory distinctions tax liability fertile basis litigious confusion collateral estoppel meant create vested rights decisions become obsolete erroneous time thereby causing inequities among taxpayers ibid citations omitted factual legal context issues case arise materially altered since kiewit normal rules preclusion operate relieve parties redundant litigation identical question statute application taxpayer status tait western maryland see russel mfg sole remaining question whether particular circumstances case justify exception general principles estoppel possible relevance exception obtains unmixed questions law successive actions involving substantially unrelated claims moser recognized moser example deciding case enunciated rule law parties subsequent action upon different demand estopped insisting law otherwise merely parties cases fact question right distinctly adjudged original action disputed subsequent action even though determination reached upon erroneous view erroneous application law ibid emphasis added case implicate right litigant properly invoked jurisdiction federal district consider federal constitutional claims compelled without consent accept state determination claims england medical examiners omitted held england abstention doctrine may serve vehicle depriving individuals otherwise cognizable right federal courts make factual determinations essential resolution federal questions see naacp button however england party freely without reservation submit ted federal claims decision state courts ha decided england medical examiners supra considerations comity well repose militate redetermination issues federal forum behest plaintiff chosen litigate state finally government alleged unfairness inadequacy state procedures voluntarily submitted must conclude therefore full fair opportunity press constitutional challenges kiewit accordingly government estopped seeking contrary resolution issues judgment district reversed footnotes see supp see app see hazard res nova res judicata cal rev vestal judicata variables adjudicating bodies geo note developments law res judicata harv rev although term privies used occasion denominate nonparties control litigation see merriam saalfield restatement judgments comment usage criticized conclusory analytically unsound moore cf note harv nomenclature abandoned applicable section second edition restatement see restatement second judgments tent draft apr clause contract enumerated credit provisions montana statute provided contractor turn subcontractors take advantage credits peter kiewit sons state board equalization mont kiewit record reflect reason government policy see tr oral arg threshold difficulty government argument record support assertion contractual provisions barring contractors taking credits longer applicable contracts involved litigation brief see also tr oral arg montana gross receipts statute enacted government limited request relief gross receipts taxes paid contractual provisions involved kiewit discontinued see supra contrary government amended complaint instant case seeks refund tax payments less credits made montana statute app thus government contention concerning factual changes justify district refusal invoke estoppel respect claims apparently problem arisen appreciable extent private contractors tr oral arg see supra government seeks distinguish england ground technically abstain rather parties request continued action pending resolution state courts montana app juris statement government view rule england arises party freely submits federal claims adjudication state courts party kiewit government submits bound judgment case brief agree district action properly characterized continuance res judicata doctrine involved england inapplicable nonparties see supra neither point availing since dispose case grounds collateral estoppel apply nonparties see invoke england simply dispel inference result obtain federal government forced state reserved federal claim redetermination issues warranted reason doubt quality extensiveness fairness procedures followed prior litigation see restatement second judgments tent draft apr note preclusive effect state judgments subsequent actions colum rev cf gibson berryhill trainor hernandez stevens dissenting justice rehnquist concurring join opinion customary understanding references law review articles drafts finally adopted versions restatement judgments intended bind views expressed therein issues presented facts case justice white dissenting disagree government estopped litigating claim federal virtue earlier action courts montana merits think montana gross receipts tax constitutionally infirm thus affirm decision basic principle collateral estoppel must confined situations matter raised second suit identical respects decided first proceeding controlling facts remain unchanged commissioner sunnen dispute maintains discrepancies facts underlying state federal actions moment clear however montana assumed kiewit tax scrutiny rather measure significance supposition view refuted neither opinion kiewit state subsequent pronouncements kiewit ii assumption lost force time federal litigation undisputed federal government abandoned policy requiring contractors dealt forgo credits available gross receipts law though federal contractors accordingly availed credits refunds allowable law uncontroverted evidence case establishes federal contractors still subject net gross revenue tax one percent ante facts developed cast constitutional issues wholly different light think properly proceeded decide issues uninhibited prior state adjudication outset discussion kiewit montana labored demonstrate gross receipts tax issue measure funds collected pursuant thereto applied credited taxes otherwise due understood tax practice resulted total washout gross receipts payments attributed federal government policy prohibiting certain contractors kiewit taking refunds credits available law ignorance indifference credit provisions part contractors maintained aside aberrations act intended operate revenue enforcing measure peter kiewit sons state board equalization mont emphasis added majority surmises state extensive characterization tax irrelevant constitutional analysis view relegates dicta state careful appraisal operation impact tax inspecting state constitutional analysis independently evaluation nature tax majority assumes constitutional adjudication proceeded vacuo logic state decision may well extend measure say kiewit may persuasive authority score establish adjudicated issue moreover reliance kiewit ii demonstrate immateriality washout nature tax decision kiewit misplaced recognize montana regarded kiewit second attack launched contractual credit restrictions removed government foreclosed judgment first suit addressing kiewit objection application tax manner raise revenue acknowledged may kiewit entitled refund administrative remedy peter kiewit sons department revenue mont statute course contemplates remedy affirmatively construe authorize one yet remark leaves unclear whether absent remedy persist holding tax constitutional statement underscores assumption kiewit gross receipts tax device suggests correlatively decision condone imposition unmitigated positive tax solely public contractors majority unsound inferring kiewit ii ruling kiewit insensitive washout character gross receipts tax see modification significant facts rendered prior state determination obsolete least future purposes commissioner sunnen supra government free litigate constitutional challenge federal ii merits judgment sustained nothing wrong course state gross receipts tax general applicability incidentally applies contractors deal federal government thus increasing construction costs county fresno james dravo contracting long tax directly laid federal government valid nondiscriminatory congress declares otherwise county fresno supra fresno stressed requirement state tax imposed equally similarly situated constituents state concern discriminatory taxation returns original intent culloch maryland wheat observed political check abuse taxing power found lacking culloch present state imposes nondiscriminatory tax constituents artificially owned entities culloch foresaw unfairness forcing state exempt private individuals beneficial interests federal property taxes imposed similar interests held others private property ibid montana gross receipts tax survive application foregoing principles law generally embracing similarly situated state constituents business private public sectors mandating collection revenue contractors transact public entities law passes contractors deal private parties thus political check provided contractors abuse taxing power lacking ibid appellants maintain contractors deal private enterprises situated similarly transact public bodies point special problems associated enforcement state tax laws contractors prone move state pursuit large public contracts gross receipts tax measure necessary argued order facilitate enforcement tax laws contractors concededly however problems exist respect large private contractors even assuming differentiation contractors warranted context tax enforcement measures appellants representations provide basis discriminating regard revenue raising montana kiewit litigation defended classification equal protection purposes submitting public stake safety building projects hence qualifications public contractors warranted treating contractors differently counterparts considerations like matters advanced appellants fail explain tax collected former latter moreover though law may sustainable equal protection assault indulgent standard used area applied federal supremacy threatened see phillips chemical dumas independent school circumstances disparate treatment must justified significant differences two classes must considerations provid ing solid support classification emphasis added seems plain contractors similarly situated purposes litigation iii appellants contend nonetheless enough tax reaches contractors dealing public entities state federal appellants root contention statement phillips chemical dumas independent school supra state must treat deal government well treats deals emphasis added phillips furnishes support appellants position held unconstitutional state tax scheme treated lessees federal property severely lessees state property even addressing issue however ascertained discrimination government lessees lessees private property thus phillips evinced concern equal treatment similarly situated persons connected private public sector persons within public sector event see basis whatsoever extracting principle state may favor federal government proposition state may favor constituents long contractors working public bodies taxed indeed fresno sustained tax assuring persons rented federal property worse california tax laws work private employers rent houses private sector laws reaching broadly across public private sectors characteristic sustained detroit detroit murray alabama king boozer james dravo contracting silas mason tax good reason insist state tax imposed equally similarly situated constituents state county fresno whether connected public sector private broad application tax necessary guarantee efficacious political check potentially abusive taxation montana gross receipts tax limited contractors provides little assurance taxation contractors dealing directly state state agencies affords safeguard discriminatory treatment federal contracting agencies contractors deal tax increase passed along contractor borne fully federal agency offset corresponding tax revenues case state state perspective tax washout municipalities local districts true enjoy advantage may resist tax increases successfully enforced burden federal government alike least potentially local subdivisions may secure offsetting state assistance indirection may diminish incentive oppose tax hikes even assuming however local public bodies share interest federal government restraining taxes escapes government must acquiesce limited protection provide enhanced political check ensue extension tax similarly situated state constituents indicated support notion decisions mcculloch condoned state taxation private interests federal property common property description throughout state mcculloch maryland wheat emphasis added fresno observed escalation state tax destroy impair federal function might forestalled imposition tax income property interests residents voters state decisions counsel nice determinations regarding political leverage group establish simple fundamental proposition federal government entitled full measure protection derivable inclusion similarly situated state constituents class subject tax appellants suggested oral argument contracting comprises relatively small percentage contracting state argue exclusion contractors ambit gross receipts tax therefore excusable appellants seriously contend contracting montana de minimis assertion find support record private contracting parties subjected tax provide significant additional protection abuse state taxing power exempting private sector montana gross receipts tax accordingly contrary constitution believe properly reached decided merits government claim dissent reversal judgment administrator miscellaneous tax division montana department revenue testified federal proceedings administrative remedy existed none contemplated deposition james madison record doc true indicated first opinion held reasonable grounds distinguishing private public contractors tax purposes discussion differentiating private public contractors alluded addressed kiewit equal protection claim supremacy claim see peter kiewit sons state board equalization mont suggested public contractors warrant special tax treatment public construction projects extensively regulated private jobs subject mandatory supervision inspection state stipulated federal contracts subject state standards review supervision state right authority suspend federal contractor license state interfere selection bidders federal government app juris statement thus considerations posited state distinguish contractors deal federal government montana authorized payment state funds local political entities certain contexts mont rev codes ann supp funding certain highway improvements expansion services due coal development supp state payments municipalities police departments supp state payments municipalities fire department relief associations record indicates anything contracting nonnegligible see app see also bureau census census construction industries