I dissent for the reasons stated in my dissenting opinion in the former case, State v. Packer Corporation (Utah)297 P. 1013, referred to in the prevailing opinion. I admit that substantially the same questions presented and decided in the former case are presented on this appeal. Should the doctrine of stare decisis be applied I, because thereof, would *Page 181 on this appeal now yield my views expressed in the former case and concur in the prevailing opinion on this appeal. I however, think the doctrine not applicable. A petition for a rehearing in the former case was filed but not ruled on until just before — the same day — the decision in this case was announced and filed. The former decision not being final until the petition for rehearing was denied, the decisions in both cases in effect are simultaneous.
While a single decision, though by a divided court, when existing undisturbed for some considerable time, and where because of it rights may have been acquired or a course of conduct or of dealings established, may be considered obligatory as a precedent and with respect thereto, the doctrine of stare decisis applied, yet where, as here, the former decision, with two members of the court dissenting, not becoming final until the present decision is rendered and filed, and until then no rule of law established with respect to the subject, and no rights because thereof yet acquired nor any course of conduct or dealings established, the reasons upon which the doctrine rests being absent, the doctrine itself ceases and is rendered inapplicable. 11 Cyc. 745; Kimball v. Grantsville City,19 Utah 368, 52 P. 1, 45 L.R.A. 628; Hopkins v. McCann, 19 Ill. 113;Hill v. State, 112 Ga. 400, 37 S.E. 441; Westhus v.Union Trust Co. (C.C.A.) 168 F. 617; Hart V. Burnett, 15 Cal. 530;Becker v. Superior Court, 151 Cal. 313, 90 P. 689;McDonald v. Davey, 22 Wash. 366, 60 P. 1116; MontgomeryCounty Fiscal Court v. Trimble, 104 Ky. 629, 47 S.W. 773, 42 L.R.A. 738; Jackson County v. State, 155 Ind. 604,58 N.E. 1037.
Further, by the decision in the former case and in this case, the validity of the act considered as to whether it was unauthorized by and in conflict with not only provisions of the state Constitution but of the Federal Constitution as well was directly in question and determined, and thus the determination in the former case was not by a court having final jurisdiction of the question involved. And, where a decision of a tribunal is subject to review by a higher and *Page 182 final tribunal or the question determined may be passed on by a higher and final tribunal in another case, the doctrine of stare decisis does not apply with full force, until the same question or questions have been determined by the court of last resort. 17 R.C.L. 1005; Calhoun Gold Mining Co. v. Ajax Gold Mining Co.,27 Colo. 1, 59 P. 607, 50 L.R.A. 209, 83 Am. St. Rep. 17.
For the same reason, law of the case could not be invoked even were this a second appeal of the same case. Roach v. LosAngeles S.L.R. Co. (Utah) 280 P. 1063, on petition for rehearing and cases noted in 41 A.L.R. 1078. But here there were no two appeals of the same case. The appeals are appeals of two distinct and separate cases involving two separate offenses and transactions, though similar in character and involving violations of the same act. So also for such reasons the doctrine of law of the case may not be invoked.
I therefore still dissent, and think the act invalid for the reasons stated in my dissenting opinion in the former case.