Respondent brought this action for a refund of excise taxes paid as a "distributor" of fuel oil under the provisions of chapter 180, Laws of 1935. It set up two causes of action: One for the recovery of $206,790, with interest, for taxes paid pursuant to the act, without protest; the other for $17,517, with interest, for taxes paid under protest. The appellant cross-complained for $129,000 for taxes due and accruing under the act subsequent to May, 1938. The lower court entered judgment in favor of *Page 425 the respondent on both causes of action and denied recovery to the state on its cross-complaint.
The judgment was based on the holding of this court in Statev. Fidelity Deposit Co. of Maryland, 194 Wn. 591,78 P.2d 1090. I do not think, however, that that case is authority for holding that respondent is not a "distributor" under the third definition contained in Laws of 1935, chapter 180, § 79. While in that case it was broadly stated that the Northern Pacific Railway Company did not come under any of the definitions contained in § 79, the question presented and decided was whether the railway company came within the second definition as one who "importsany fuel oil," etc.
I think that respondent clearly comes within the third definition of the term "distributor" as defined in § 79. That provides:
"The word `distributor' shall mean and include . . . any person who having acquired in this state in the original package or container fuel oil and/or diesel oil, shall distribute or sell the same, whether in such original package or container in which the same was imported or otherwise, or in any manner uses thesame; . . ." (Italics mine.)
And I am warranted in saying that the respondent thought so, too, until this court handed down its decision in State v.Fidelity Deposit Co. of Maryland, supra. For, on June 4, 1935, respondent, pursuant to § 81 (incorporating as a part of the title chapter 58, Laws of 1933, § 2), applied to the director of licenses for a license as a "distributor" of fuel oil. This license was voluntarily renewed by respondent on July 1, 1936, and again on June 17, 1937.
I dissent. *Page 426