1 Reported in 112 P.2d 548. This is an action to recover distributors' fuel oil excise taxes paid to the state by the plaintiff under chapter 116, Laws of 1937, p. 459, and chapter 186, Laws of 1939, p. 581 (Rem. Rev. Stat. (Sup.), § 8370-78a [P.C. § 7029k-21] et seq.). The case was tried to the court and resulted in a judgment for the plaintiff. Defendant appealed.
All of the oil in question was purchased from a California oil company by respondent and was used by the latter in the course of its manufacturing operations. Two types of deliveries were involved. Part of the oil was delivered in Oregon and transported from there into Washington by respondent. The remainder was brought from California by the seller and delivered by tankers directly to respondent's manufacturing plants in this state.
In State v. Inland Empire Refineries, Inc., 3 Wash. 2d 651,101 P.2d 975, this court held the 1939 statute unconstitutional in its entreaty. We adhered to that holding inTexas Co. v. Cohn, ante p. 360, 112 P.2d 522, but, in the latter case, we concluded that the 1937 statute was constitutional, and that it had remained in force and effect because its repeal by a clause contained in the 1939 law had fallen with the rest of that void statute. Therefore, the principal question presented by the case at bar is whether the respondent is liable for the tax under the 1937 statute.
Clearly, respondent is not subject to such tax. Great NorthernR. Co. v. State, 200 Wash. 392, 93 P.2d 694; Great NorthernR. Co. v. Cohn, 3 Wash. 2d 672, 101 P.2d 985; see, also,Weyerhaeuser Timber Co. v. Cohn, 3 Wash. 2d 730,101 P.2d 984.
The trial court found that the tax payments were made by respondents involuntarily under duress, coercion, and compulsion, and the respondent's right to maintain an action against the state for their recovery is determined by Great Northern R. Co.v. State, supra.
The judgment is affirmed.
ROBINSON, C.J., BEALS, SIMPSON, and JEFFERS, JJ., concur.
STEINERT, J., concurs in the result.
BLAKE and MAIN, JJ., dissent.