Appellant paid under protest a sales tax for the years 1937 and 1938 in the amount demanded by the State Tax *Page 113 Commission and sues to recover same as having been collected without legal authority. Our law reports disclose the following history of the litigation.
The Chairman of the State Tax Commission, proceeding under Sections 5 and 6, Chapter 113, Laws of 1938, made assessment of Viator for sales tax liability. Upon appeal to the Commission itself the assessment was allowed to stand. Appeal was taken to the Circuit Court of Hinds County by certiorari, whereupon the order of the Commission was affirmed. This Court upon appeal affirmed the latter judgment. Viator v. State Tax Commission,193 Miss. 266, 5 So. 2d 487.
The Commission thereupon had execution issued to collect the tax and same was placed in the hands of the Sheriff of Harrison County. Appellant sought injunction against the Sheriff. Demurrer to the bill was sustained upon the ground that the order of the Commission was authorized and valid and that the taxpayer had had full opportunity to be heard before that body. We affirmed. Viator v. Edwins, 195 Miss. 220, 14 So. 2d 212.
Appellant then paid the tax and sued to recover. Code 1942, Sec. 10122. Plea of res adjudicata was interposed and sustained by the trial judge. We reversed upon the ground that, aside from the merits of the case or the sufficiency of a proper plea, the defense was not adequately presented by the incomplete recitals and exhibits, and we were unable to determine whether a former judgment upon the merits had been disclosed. Viator v. Stone,201 Miss. 487, 29 So. 2d 658.
The instant case presents a record which contains a complete history of this litigation, and all orders and judgments were made exhibits to the plea of res adjudicata. From a judgment of the trial court sustaining the plea this appeal is presented.
When the foregoing chronicle of litigation is seen in connection with unsuccessful appeals to the Supreme Court of the United States an impression may readily be *Page 114 gained that a contention that appellant had his day in court may appear as understatement. Yet the fact that appellant had unsuccessfully tried to escape liability by several locked doors, need not of itself deny him egress by the only available avenue. Code 1942, Sec. 10122, furnishes the only means whereby liability may be adjudged upon the merits by a court of competent jurisdiction. That he has drawn heavily upon patience and persistence in seeking appropriate remedy may be credited to his industry without being charged against his substantive rights. Viator v. Stone, supra.
The basis of the plea of res adjudicata is a former hearing and judgment involving the merits. The only opportunity thus far vouchsafed appellant was the hearing before the State Tax Commission. Yet the plea may not rest upon mere administrative action. Viator v. Stone, supra. Regardless of the difficulties which beset the Commission in making its assessment and the opportunity of the taxpayer to be there heard, these complex proceedings culminated in an order of an administrative body.
The proceeding by certiorari was not such hearing upon the merits. We said in Viator v. State Tax Commission [193 Miss. 266, 5 So. 2d 488], supra, "Whether this order of the State Tax Commission is supported by evidence was not before the court below and is not before us here, for the reason that under Sections 72 and 73, Code 1930, the court to which a case has been removed by a writ of certiorari is `confined to the examination of questions of law arising or appearing on the face of the record and proceedings'."
Nor was the injunction suit against execution of the Commission's order, which was dismissed upon demurrer, a hearing upon the merits.
The subsequent litigation was the first opportunity for the taxpayer to adjudicate the merits of his liability before a court of competent jurisdiction. Upon the first appeal the cause was reversed because the plea did not fully set forth the sources by which this test was to be *Page 115 applied. Upon remand a complete record was made and we are compelled to hold that the plea as amended fails to reveal a prior judgment between the same parties involving the merits of the controversy. Viator v. Stone, supra. The objection to the plea ought to have been sustained.
Reversed and remanded.