Opinion
No. 25897. En Banc.
March 27, 1936.
TAXATION (6, 13) — CONSTITUTIONAL REQUIREMENTS — EQUALITY AND UNIFORMITY — EXCISE OR CORPORATE PRIVILEGE TAX — PROPERTY TAX. Laws of 1935, p. 706, Rem. 1935 Sup., § 8370-1 et seq., is unconstitutional as imposing a property tax, violating the uniformity clause of the constitution, where it imposes an annual tax, measured by net income on all national banks and all other corporations not expressly exempted doing business in the state, for the privilege of exercising their corporate franchises, in addition to annual license fees.
Appeal from a judgment of the superior court for Thurston county, Wilson, J., entered September 16, 1935, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action for injunctive relief. Affirmed.
The Attorney General and R.G. Sharpe, Assistant, for appellants.
Allen, Froude Hilen, for respondent.
BLAKE, TOLMAN, and GERAGHTY, JJ., dissent.
Under the provisions of title 17, chapter 180, Laws of 1935, p. 706, Rem. 1935 Sup., § 8370-1 [P.C. § 7030-61] et seq., an annual tax, measured by net income, is imposed on all national banks and all other corporations doing business in this state, except those expressly exempted. Plaintiff, a domestic corporation, is engaged in the business of transporting freight, particularly petroleum and petroleum products, and it owns and operates storage plants in connection therewith. It is in competition with individuals, partnerships or firms engaged in like business but not transacting the same business as corporations or associations as defined by the act.
Plaintiff brought this action to enjoin the members of the state tax commission from enforcing the provisions of the above-described act against it and all other corporations similarly situated transacting business in this state. Defendants' demurrer to the complaint was overruled. They elected not to plead further, whereupon a decree was entered adjudging title 17, chapter 180, Laws of 1935, p. 706, Rem. 1935 Sup., § 8370-1 [P.C. § 7030-61] et seq., to be unconstitutional and perpetually restraining its enforcement. Defendants have appealed from that decree.
[1] The determinative question is whether the tax imposed is an excise or a property tax. The 1935 act imposes a tax, measured by the corporation's net income, for the privilege of exercising its corporate franchise in this state, or for the privilege of doing business in this state, in addition to annual license fees.
The same question was presented in the case of Aberdeen Savings Loan Ass'n v. Chase, 157 Wn. 351, 289 P. 536, 290 P. 697, 71 A.L.R. 232. In that case, this court held that the 1929 enactment providing for a tax of five per cent upon the net income of banks and financial corporations was a property tax. The 1929 act contained a recital that the tax was "for the privilege of exercising its corporate franchise within this state."
Since the act imposes a property tax, it is subject to the uniformity clause of the fourteenth amendment of the state constitution. Aberdeen Savings Loan Ass'n v. Chase, 157 Wn. 351, 289 P. 536, 290 P. 697, 71 A.L.R. 232; Burr, Conrad Broom v. Chase, 157 Wn. 393, 289 P. 551; Culliton v. Chase, 174 Wn. 363, 25 P.2d 81; Jensen v. Henneford, ante p. 209, 53 P.2d 607. The property of the respondent may not be subjected to a tax not imposed upon the property of copartners and individuals. Burr, Conrad Broom v. Chase, supra.
The question presented by this appeal being foreclosed by the authorities cited, it follows that the judgment must be, and it is, affirmed.
MAIN, MITCHELL, HOLCOMB, BEALS, and STEINERT, JJ., concur.
TOLMAN and GERAGHTY, JJ., dissent.
I dissent for the reasons stated in the dissenting opinions in Culliton v. Chase, 174 Wn. 363, 25 P.2d 81, and Jensen v. Henneford, ante p. 209, 53 P.2d 607.