Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932)
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U.S. Supreme Court GREAT NORTHERN RY. CO. v. SUNBURST OIL & REFINING CO., 287 U.S. 358 (1932)
[Page 287 U.S. 358, 365]
McCarthy Bros. Co., 163 Minn. 339, 204 N.W. 29; Farrior v. New England Mortgage Security Co., 92 Ala. 176, 9 So. 532, 12 L.R.A. 856; Falconer v. Simmons, 51 W.Va. 172, 41 S.E. 193.1 On the other hand, it may hold to the ancient dogma that the law declared by its courts had a Platonic or ideal existence before the act of declaration, in which event the discredited declaration will be viewed as if it had never been, and the reconsidered declaration as law from the beginning. Tidal Oil Co. v. Flanagan, supra; Fleming v. Fleming, supra; Central Land Co. v. Laidley, 159 U.S. 103, 112, 16 S.Ct. 80; see, however, Montana Bank v. Yellowstone County, supra. [Footnote 2] The alternative is the same whether the subject of the new decision is common law (Tidal Oil Co. v. Flanagan, supra) or statute. Gelpcke v. Dubuque, supra; Fleming v. Fleming, supra. The choice for any state may be determined by the juristic philosophy of the judges of her courts, their conceptions of law, its origin and nature. We review, not the wisdom of their philosophies, but the legality of their acts. The state of Montana has told us by the voice of her highest court that, with these alternative methods open to her, her preference is for the first. In making this choice, she is declaring common law for those within her borders. The common law as administered by her judges ascribes to the decisions of her highest court a power to bind and loose that is unextinguished, for intermediate transactions, by a decision overruling them. As applied to such transactions, we may say of the earlier decision that it has not been overruled at all. It has been translated into a judgment of affirmance and recognized as law anew.
[Page 287 U.S. 358, 367]
required to determine, for here there is more, and that enough to bring the case within a well-recognized exception. The rule, general as it is, does not extend to cases where the constitutional question, however tardily raised, is considered and decided (Consolidated Turnpike Co. v. Norfolk & O.V. Ry. Co., 228 U.S. 326, 334, 33 S.Ct. 510; Cumberland Coal Co. v. Board, , 52 S.Ct. 48), nor does it apply where the grounds of the decision supply a new and unexpected basis for a claim by the defeated party of the denial of a federal right (Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 678, 50 S.Ct. 451; Missouri ex rel. Missouri Insurance Co. v. Gehner, 281 U.S. 313, 320, 50 S.Ct. 326; American Surety Co. v. Baldwin, supra). This case is clearly within the second of these exceptions, if it is not also within the first. We have seen that the assault upon the judgment is made along two lines. The first is a challenge to the constitutional validity of the ruling in the Doney Case, and involves a misconception of the decision in Arizona Grocery Co. v. Atchison, Topeka & Santa Fe Ry. Co., supra. The second is a challenge to the constitutional validity of the ruling in this case whereby the statute is adjudged to mean one thing for some cases and another thing for others. This latter objection the petitioner could not make in advance of the event.
The judgment of the Supreme Court of Montana is accordingly
Affirmed. Footnotes
Footnote 1 Other cases have been collected in the writings of learned authors: Von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harvard Law Review 409, 421; Freeman, Retroactive Operation of Decisions, 18 Columbia Law Review 230; Carpenter, Court Decisions and the Common Law, 17 Columbia Law Review 593; also 29 Harvard Law Review 80.
Footnote 2 Cf. Gray, Nature and Sources of the Law, 535-550; Holmes, J., in Kuhn v. Fairmont Coal Co., 215 U.S. 349, 371, 30 S.Ct. 140.
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