United Pacific Insurance Co. v. Wyoming Excise Tax Division, Department of Revenue & Taxation

THOMAS, Chief Justice,

dissenting.

Because I am persuaded that this is an action upon a Miller Act bond which must be brought in the United States District Court, I am constrained to dissent from the position of my brothers in this case. It may be true that our statute imposes an independent statutory obligation, but that statutory obligation is only the lever in this operation, and surely the Miller Act bond is the fulcrum. Obviously no recovery could be had by the State of Wyoming in the absence of the Miller Act bond, and it is to the conditions of that contract that the independent statutory obligation attaches. In order to invoke the provisions of the statute the State of Wyoming must, and did, allege the furnishing of the bond which it attached to its complaint as an exhibit and incorporated in its allegations by reference. The bond quite obviously was furnished pursuant to the Miller Act.

As I perceive this situation the action is brought upon a contract in the form of the Miller Act bond. One of the contractual provisions is that found in § 39-6-604(a) W.S.1977 (May 1985 Replacement). The significance of the statute, however, is that it adds a contractual provision; it cannot create a completely independent statutory obligation. The statutory obligation cannot function in a vacuum.

If the thrust of the statute is to simply create an independent statutory obligation, then its efficacy within an area of exclusive federal legislative jurisdiction is not authorized by the Buck Act, 4 U.S.C. §§ 105 et seq. Unless this obligation attaches to the Miller Act bond as an additional condition of that contract, it would have no validity within the confines of Yellowstone National Park. The Buck Act cannot be construed to authorize legislation pursuant to which sales or use taxes are collectible from a stranger to the transaction.

I would reverse the district court on the ground that it was without subject matter jurisdiction because of the provision of the Miller Act requiring suit to be brought in the United States District Court.