stating that "[w]e have no issue present in the instant case of the attorney general's right to question the constitutionality of a state statute. This is because the attorney general is not a party in the instant case and only appears as counsel for the department."
How later courts described this case
- stating that "[w]e have no issue present in the instant case of the attorney general's right to question the constitutionality of a state statute. This is because the attorney general is not a party in the instant case and only appears as counsel for the department."
- holding previous case when no one challenged the issue could not be precedent on the issue
- noting that a further reason for allowing the department of taxation to challenge the constitutionality of a statute is that "there is little likelihood that any taxpayer will"
- stating a case was not efficacious on an issue which was not challenged by the parties
Written by the judges who cited it.
The opinion
Brown, Fairchild, and Hallows, JJ.
(dissenting on motion for rehearing). We agree that the constitutional question could properly be raised by the department of taxation and the attorney general, but disagree with the conclusion that the retroactive feature of the statute is valid.