1 Reported in 112 P.2d 543. Plaintiff, a corporation engaged in the business of selling fuel oil, brought this action to recover from the state taxes which it had paid as a fuel oil distributor under chapter 186, Laws of 1939, p. 581 (Rem. Rev. Stat. (Sup.), § 8370-78a [P.C. § 7029k-21] et seq.), basing its claim upon State v. InlandEmpire Refineries, Inc., 3 Wash. 2d 651, 101 P.2d 975, in which this court held the statute unconstitutional in its entirety. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, was overruled. Defendant refused to plead further, and judgment was entered for the plaintiff. Defendant appealed.
In Texas Co. v. Cohn (Nos. 28173 to 28187, inclusive), ante p. 360, 112 P.2d 522, this court considered and passed upon the same questions which are presented here. In the cited case, we concluded that, when the whole 1939 statute was declared in *Page 727 valid by the Inland case, the invalidity extended to, and included, the clause specifically repealing the former fuel oil tax law (Title XI, chapter 180, Laws of 1935, p. 749, as amended by chapter 116, Laws of 1937, p. 459), and that, although the 1939 act fell, the 1937 statute, in contemplation of law, remained standing all the while, as it had never been lawfully repealed. We held that the tax payments made by a distributor under the 1939 act could not be recovered except those made on petroleum products, which were not taxable, or were exempted, under the prior law. In the present case, the complaint does not allege that any such excess payments were made by respondent under the 1939 act.
On the authority of Texas Co. v. Cohn, supra, the judgment of the superior court is reversed, with direction to sustain appellant's demurrer to respondent's complaint.
ROBINSON, C.J., MAIN, BEALS, BLAKE, and JEFFERS, JJ., concur.
SIMPSON, J., dissents.