Section 3 of chapter 57 of the Laws of 1933, Ex. Ses., p. 159 (Rem. 1934 Sup., § 8326-4 [P.C. § 7068-34]), provides that persons growing or cultivating for sale, profit or use any agricultural or horticultural product or crop, shall be exempt from the provisions of the act. In construing that exemption in the case of Yakima Fruit Growers Ass'n v. Henneford, 182 Wash. 437,47 P.2d 831, it was held that the association was not required to pay the tax, as the corporate entity acted merely as the agent of the growers who were members of the corporation. It was there said:
"The fact that they operate through a corporate entity in which they own the stock and the corporation makes no profit and distributes the proceeds after a sale and the payment of the expenses on a pro rata per box basis, does not put them in a materially different situation than if two or more of them cooperated simply as members of a joint undertaking without corporate existence."
Section 11 of chapter 180 of the Laws of 1935, p. 717, provides that any person, in respect to the business of growing or cultivating for sale any agricultural or horticultural products or crops, shall not be subject to the provisions of the act. There is the further provision that the exemption does not apply *Page 261 to any association of persons, whether mutual, cooperative or otherwise, engaging in any business activity with respect to which tax liability is imposed under the provisions of the act. This later provision in no way modifies the holding in the previous case, above referred to. There is nothing in the language indicating that, where growers associate themselves together, as was done by the Yakima Fruit Growers Association and others of like kind, and the association merely acts as the agent of the growers and members, and makes no profit, the association and its members would not be exempt from the provisions of the act.
In my opinion, the holding in the case now before us is out of harmony with the holding in the previous case. I therefore dissent.
MITCHELL, HOLCOMB, and GERAGHTY, JJ., concur with MAIN, J. *Page 262