Opinion
No. 30955.
September 3, 1949.
Appeal from a judgment of the superior court for Thurston county, Wright, J., entered February 1, 1949, restraining the state tax commission from collecting business and occupation taxes, after a trial on the merits to the court. Affirmed.
The Attorney General, Max Kaminoff and William C. Klein, Assistants, for appellants.
MacBride, Matthews Hanify ( Briggs, Gilbert, Morton, Kyle Macartney, of counsel), for respondents.
This is a companion case to Columbia Steel Co. v. State, ante p. 700, 209 P.2d 482.
The plaintiff instituted this action against the tax commission of the state of Washington, naming the individual members thereof, and prayed for a decree enjoining the defendants from collecting a tax in the amount of $8,187.43, together with interest and penalty, which the defendants had assessed against plaintiff on account of sales of merchandise made by plaintiff. Defendants claimed that this tax was due the state as a result of plaintiff's operations therein as a wholesaler.
The defendants demurred to plaintiff's complaint, and the demurrer was sustained by the superior court. As plaintiff stood upon its complaint, a judgment was entered dismissing the action, from which judgment the plaintiff appealed to this court.
The case was argued to this court, sitting En Banc, and, by a per curiam opinion ( Weyerhaeuser Sales Co. v. State Tax Commission, 30 Wn.2d 947, 192 P.2d 979), the judgment appealed from was reversed, with instructions to overrule the demurrer.
The action was then tried to the superior court upon an agreed statement of facts and resulted in a judgment in favor of the plaintiff, enjoining the defendants from collecting or attempting to collect the tax referred to in plaintiff's complaint.
From this judgment, the defendants have appealed, assigning error as follows:
"(1) The trial court erred in concluding that the assessment in issue is in violation of Article I, Section 8, Clause 3, of the federal constitution.
"(2) The trial court erred in entering its judgment of February 1, 1949, in favor of respondent, enjoining appellants from collecting or attempting to collect the tax assessment in issue, or any other assessment made with respect to transactions of the type in issue.
"(3) The trial court erred in failing to dismiss respondent's complaint in accordance with the prayer of appellants' answer."
Both appellants and respondent agree that the stipulated statement of facts before us submits substantially, if not exactly, the same questions presented upon the first appeal in this action, and essentially the same questions which we have decided in the case of Columbia Steel Co. v. State, supra. As stated in our prior opinion in the Weyerhaeuser case:
"The tax here involved is the Washington state business and occupation tax, Rem. Supp. 1943, § 8370-4 et seq., which, so far as this case is concerned, imposes a tax upon those making sales at wholesale, at the rate of one quarter of one per cent of the gross sales proceeds."
In the case at bar, as no tax was paid by respondent, no question concerning interest is involved. With that exception, the issues in this case are the same as those presented in Columbia Steel Co. v. State, supra, filed this day. The legal principle of "the law of the case" applies in the case at bar, as well as in the case last cited.
In accordance with the conclusions which we have reached in the Columbia Steel Co. case, the judgment appealed from is affirmed.
I concur regretfully, for the reasons stated in the second paragraph of my concurring opinion in the companion case, Columbia Steel Co. v. State, ante p. 700, 209 P.2d 482.
MALLERY, J., did not participate.