DISSENTING OPINION. In 30 Am. Jur. p. 910, Judgments, Sec. 164, it is said "Wherever a final adjudication by persons invested with power to decide on the property and rights of the citizen is examinable by the Supreme Court, upon a writ of error or a certiorari, such final adjudication may be pleaded as res adjudicata." This text is taken almost literally from Mercein v. People, 25 Wend., N.Y., 64, 35 Am. Dec. 653, the opinion in that case concluding that "in every such case the adjudication may be pleaded as res adjudicata, and is conclusive upon the parties in all future controversies relating to the same matter." See also 2 Freeman on Judgments (5th Ed.), Sec. 826, and the cases under note 6, p. 1757, and 1 Van Fleet on Former Adjudication, p. 251.
And the text first above cited continues further: "It is clear that the doctrine of res adjudicata applies to a judgment rendered by a court upon a review of a decision made by an administrative body," citing in support thereof State Corp. Commission v. Wichita Gas Co., 290 U.S. 561, 54 S.Ct. 321, 78 L.Ed. 500, wherein it was held that the decision of the state courts reviewing the orders of an administrative commission was binding as res adjudicata upon federal courts, and there are many more to the same effect.
But it is argued that our previous adjudications were not upon the full facts, — that the courts did not have before them the additional facts which appellant now proposes to show in this case, — the fourth which has been brought by him. The opinion of this Court in the first *Page 501 case, which by stipulation was made a part of the record in this case, and is thereby made equal to undisputed proof of what is factually stated therein, recites that "the assessment here made by the Chairman of the State Tax Commision . . . became thereby prima facie correct, and the taxpayer was given an opportunity both by the Chairman of the Commission and by the Tax Commission itself to negative by evidence the facts on which the assessment was based."
Although, as thus shown, the Court did not have before it in the first case the full facts which appellant alleges he can now show, the opinion and the facts therein stated do show that appellant had allowed the proceedings before the Tax Commission to progress to the point where upon the facts a prima facie case had been made out against him. Had he then or later without taking the proceedings directly to court — had he then paid the amount demanded, he could have brought his action to recover the payment, and no plea of res adjudicata would have been available. But what the taxpayer did after the prima facie case had been developed against him, good unless met with facts, was to take it to a judicial court, which put him, by his own election, in the same position as if the matter had been a court proceeding all the while and he had rested with meeting the prima case made out against him.
It was precisely the doctrines above stated which this Court recognized in the second appeal brought here by the taxpayer on this same matter, to wit, Viator v. Edwins, Sheriff, 195 Miss. 220, 225, 14 So.2d 212, 213, and wherein this Court said after referring to the opinion in the first case: "We find it necessary only to quote from the opinion in the former case, which, after discussing the powers of the Chairman of the State Tax Commission and the requirements which must be met to make such powers effective," quoted that part of the original opinion that "`The assessment here made by the Chairman of the State Tax Commission sufficiently complies with these *Page 502 requirements, it became thereby prima facie correct, and the taxpayer was given an opportunity both by the Chairman of the Commission and by the Tax Commission itself to negative by evidence the facts on which the assessment was based.'" And the second opinion then continued: "The instant proceeding therefore constitutes an attempt to show what might have been shown in the former cause. The contentions here made are identical and represent a continued attack upon the authority of the State Tax Commission and the validity of the former judgment." And this was the precise ground upon which that opinion and decision was based.
The above quoted language is therefore not only the law of this case, but is so much so that it could be simply repeated here in haec verba as all that is necessary to dispose of this last case, because here the contentions are identical with those made in both the two cases already decided, and is merely another "attempt to show what might have been shown in the former cause."
When the facts in a case on a subsequent appeal and the parties are the same, in person or in privity, or when the facts offered to be shown in the subsequent appeal are the same as those offered in the preceding appeal, as is the case now before us, then obviously what was held in the preceding appeal is the law of the case, binding on the court as well as on the parties, and this remains true even though the subsequent appeals were brought about by other form of action. 21 C.J.S., Courts, Sec. 195, p. 340, and the cases there cited.
And, as to the argument that Section 10122, Code 1942, allows an action against the Tax Commission as an exclusive remedy for any tax which, as alleged, has been improperly charged and paid and this without regard to anything else which has transpired; in otherwords, regardless of the fact that by previous proceedings the same matters presented by the later action brought under the cited section have been considered and adjudicated, — an argument with which the controlling opinion apparently *Page 503 agrees, — it is necessary only to note that there are no words in that statute which expressly abrogate the common-law doctrines either as to res adjudicata or the law of the case. In 50 Am. Jur. pp. 340-342, it is said that "where a contrary intent is not manifest, clear, obvious, or inescapable, or explicitly and unmistakably indicated by direct, peremptory, and unambiguous language, or where the language of the statute is in the affirmative without any negative, express or implied, it is presumed that no change in the common law was intended and the statute is generally interpreted as affecting no such change. Statutes are not deemed to change a common law rule by implication unless the intention to do so is obvious." And see what we said in our latest case precisely to the same effect, Sanders v. Neely, 197 Miss. 66, at page 82, 19 So.2d 424.
It is my conclusion, therefore, that the judgment should be affirmed.