1 Reported in 112 P.2d 546. This action was instituted to recover from the state certain distributors' fuel oil excise taxes paid by plaintiff and its predecessor under Title XI, chapter 180, Laws of 1935, p. 749, and chapter 116, Laws of 1937, p. 459. After trial to the court without a jury, judgment was entered for plaintiff, and defendant appealed.
The fuel oil on which the taxes in question were paid was delivered by an oil company from California in tankers directly to respondent's storage facilities in this state. The provisions of the contracts under which delivery was made and also the manner of delivery were substantially the same as the contract provisions and delivery which this court had under consideration in Great Northern R. Co. v. State, 200 Wash. 392,93 P.2d 694, where we held that the railroad company was not a distributor and was not subject to the tax under either the 1935 or the 1937 statute.
Moreover, in the instant case, respondent was not engaged in selling fuel oil, and all of the oil in question was used by respondent in the conduct of its own business. It was not, therefore, liable for payment of the distributors' excise tax.Great Northern R. 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.
Appellant questions respondent's right, under the circumstances, to recover the tax payments from the state. The trial court having found that such payments were made involuntarily under duress, coercion, and compulsion, the question is foreclosed by Great Northern R. Co. v. State,supra.
Judgment affirmed.
ROBINSON, C.J., BEALS, STEINERT, SIMPSON, and JEFFERS, JJ., concur.
BLAKE and MAIN, JJ., dissent.