8 Wn.2d 723, INLAND EMPIRE REFINERIES, INC., Respondent, v. THE STATE OF WASHINGTON et al., Appellants

[No. 28150. En Banc.      Supreme Court      April 17, 1941.]

INLAND EMPIRE REFINERIES, INC., Respondent, v. THE STATE OF
                     WASHINGTON et al., Appellants.1

Appeal from a judgment of the superior court for Thurston county, Wright, J. entered July 15, 1940, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action to enjoin the collection of the distributors' fuel oil excise tax. Reversed.

The Attorney General and John E. Belcher, Assistant, for appellants.

R. E. Lowe (Moyle, Richards & McKay, of counsel), for respondent.

DRIVER, J. -

In this action, plaintiff alleged in its complaint that the 1937 distributors' fuel oil excise tax act, being Title XI, chapter 180, Laws of 1935, p. 749, as amended by chapter 116, Laws of 1937, p. 459, was unconstitutional and void, and prayed that the defendants, the state and certain of its officers, be enjoined from collecting any tax or penalty from plaintiff thereunder. Defendants' demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, was overruled. The defendants elected to stand upon their demurrer, and a decree was entered permanently enjoining them in accordance with the prayer of the complaint. Defendants have appealed.

Appellants' demurrer to the complaint in the instant case raises precisely the same questions with reference to the validity and constitutionality of the 1937 fuel oil tax statute as the consolidated cases which were before this court in Texas Co. v. Cohn

1 Reported in 112 P. (2d) 541.

 724    INLAND EMPIRE REFINERIES v. STATE.
                     Opinion Per DRIVER, J.          [8 Wn. (2d)

(Nos. 28173 to 28187, inclusive), ante p. 360, 112 P. (2d) 522. We there upheld the 1937 statute.

On the authority of the cited case, the decree of the trial court is reversed, with direction to sustain the appellants' demurrer to respondent's complaint.

ROBINSON, C. J., MAIN, BEALS, BLAKE, and JEFFERS, JJ., concur.

SIMPSON, J., dissents.

MILLARD, J. (dissenting) - I am convinced that the judgment should be affirmed.

STEINERT, J. (dissenting) - I concur in the conclusion reached by Judge Millard, namely, that the judgment of the trial court should be affirmed. I therefore dissent from the majority opinion.