1 Reported in 112 P.2d 549. This appeal was taken by the defendant from findings, conclusions, and judgment entered by the trial court in favor of the plaintiff. *Page 736
The only material difference between the case at bar andRayonier Incorporated v. State (No. 28168), ante p. 731,112 P.2d 546, is that the cited case was for recovery of taxes paid under the 1935 and the 1937 distributors' fuel oil tax laws, while here respondent sought recovery of taxes paid under the 1939 statute (Laws of 1939, chapter 186, p. 581, Rem. Rev. Stat. (Sup.), § 8370-78a [P.C. § 7029k-21] et seq.).
We held the 1939 statute unconstitutional as a whole in Statev. Inland Empire Refineries, Inc., 3 Wn.2d 651,101 P.2d 975; but, in Texas Co. v. Cohn, ante p. 360, 112 P.2d 522, we concluded that the 1937 statute had remained in full force because its attempted repeal by the 1939 statute had been ineffective, having fallen along with the rest of that void act.
The question of the liability of respondent for fuel oil taxes under the 1937 statute and its right to maintain an action for recovery against the state are determined by the Rayonier case mentioned near the outset of this opinion and reported ante p. 731, 112 P.2d 546, and the cases therein cited.
Judgment affirmed.
ROBINSON, C.J., BEALS, SIMPSON, and JEFFERS, JJ., concur.
STEINERT, J., concurs in the result.
BLAKE and MAIN, JJ., dissent.