(dissenting)-—The majority of the court have overruled the view expressed upon the former hearing. State v. Northern Express Co., 76 Wash. 636, 136 Pac. 1160. The statute under review (Laws 1907, p. 79; Rem. & Bal. Code, §§ 9161-9168; P. C. 433 §§ 73-87), is held to be a valid exercise of the legislative power, upon two grounds: (1) That the privilege tax extends only to business begun and ended within the state, and (2) that express companies engaged in interstate business are at liberty to take or renounce intrastate business.
In respect to the first ground, the taxing statute, § 1 (Id., § 9161), provides that any corporation, wherever organized or incorporated, “engaged in the business of conveying to, from or through this state,” money, etc., by express service, shall be deemed to be an express company. Section 2 (Id., § 9162), provides that every such company shall, at a time designated in the act, “make and file with the *327state board of tax commissioners” a statement containing, among other things, “the entire receipts . . . for business done within this state, including its proportion of gross receipts for business done by such company within this state in connection with other companies.” Other sections of the statute provide that the state board of tax commissioners shall, from this statement, ascertain and determine the gross receipts of express companies for business done within the state.
I recognize at the outset that, if the statute may fairly and reasonably be interpreted in two ways, one of which will render it constitutional and the other unconstitutional, the former construction must be adopted. I think the very language of the statute is such as to show the intention of the legislature to fasten the tax upon interstate commerce at the state line. If it was intended, as the majority opinion says, to apply only to business begun and ended within this state, why all the verbiage in the statute, and why the provision “including its proportion of gross receipts for business done by such company within this state in connection with other companies,” and why does it refer to corporations engaged in the business of “conveying to, from or through this state?” If the legislature had intended to accomplish only what the majority opinion says, that intention could have been expressed in a few simple words. If the question were before us as to the proper interpretation of the act, in the absence of any Federal restriction, this court would, I think, be unanimous in the view that the legislature intended to make the tax cover all business done within the boundaries of the state, whether interstate or intrastate. The very language of the act shows that it was intended to apply to express companies engaged in an interstate business. Indeed, so far as we are advised, there were and are no other companies. The act was intended to reach business as it then was. I think a fair and reasonable interpretation of the act compels the view that the legislature intended to fasten the *328tax upon interstate commerce at the state line, and that it did not intend to limit it to business begun and ended within the state. I am aware that a different view was taken in Pacific Express Co. v. Seibert, 142 U. S. 339. It does not appear from that opinion, however, that the state court had theretofore construed the statute. A reading of the opinion will disclose that the court gives no heed to the words of the statute “conveying to, from, or through this state . . . including its proportion of gross receipts for business done by this company within this state in connection with other companies.”
But, assuming that the Seibert case may be harmonized with the later cases of Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217, and Meyer, Auditor of Oklahoma v. Wells, Fargo & Co., 223 U. S. 298, and that it correctly construes the statute as having reference only to business beginning and ending in the state, we are then confronted with the question whether, under the constitution and the statutes of the state, an express company engaged in interstate commerce may carry its wares through the state and be free to take or renounce all state business. The majority opinion refers only to § 13, art. 12, of our constitution. It passes § 15, art. 12, without mention. That section provides that transportation companies shall not discriminate between places and persons or in the facilities afforded, upon the same class of freight or packages, within the state “or coming from or going to any other state.” Nor does the majority opinion mention § 7, art. 12, of the constitution, or Rem. & Bal. Code, § 3720 (P. C. 405 § 359), both of which provide that a foreign corporation shall not be permitted, to transact business within the state on more favorable conditions than domestic corporations: The public service commission law (Laws 1911, p. 538; 3 Rem. & Bal. Code, § 8626-1 et seq.) provides that the term “common carrier” includes “express companies.” I refer to this only for the purpose of showing the intention of the law. It is, of course, *329true that a mere legislative declaration could not make a common carrier out of a business that was not in fact a common carrier. It is admitted, however, that express companies are common carriers. Section 9, p. 546 (Id., § 8626-9), of the public service commission act provides that “every common carrier” shall furnish adequate and sufficient service and facilities to enable it to promptly, expeditiously, safely and properly handle all persons or property “offered to or received by it for transportation,” etc. Section 10, p. 547 (Id., § 8626-10), provides: “Every common carrier shall under reasonable rules and regulations promptly and expeditiously receive, transport and deliver all persons or property offered to or received by it for transportation.” The italics are ours. Section 53, p. 571 (Id., § 8626-53), empowers the public service commission to require a common carrier to accommodate its business and facilities to the requirements of the law, to the end that it shall without discrimination furnish the public a reasonably adequate and safe service at a reasonable price. As we remarked in the former opinion, it is significant that these duties, restrictions, and regulations are made to specifically apply to every common carrier. They are all placed in the same category. The legislature was addressing itself to a condition, not a theory. It was well known, at the time of the adoption of the constitution and at the time of the adoption of the public service commission law, that practically every express company was a foreign corporation engaged in interstate commerce. The law was addressed to such corporations.
With all due respect to my brothers, I cannot free my mind from the conviction that the majority opinion has misconstrued the tax statute and torn the heart out of both the public service commission statute and the constitution. It is true that it gets the tax; but it is also true that it may be the forerunner of evils infinitely greater than would be the loss of the tax. If the public service commission should fix a rate for express companies for intrastate business below what such *330companies would consider adequate, and if in consequence they should elect to renounce all intrastate business, the loss to the fruit, dairying, and other industries of the state in respect to perishable products would be staggering. If I had had a free hand in writing the former opinion, untrammeled by the later Federal decisions, I would have had no difficulty in reaching the conclusion that the act under review only indirectly affected interstate commerce, and hence was not' unconstitutional. That view would have accorded with the conclusion reached by Mr. Justice Harlan, the chief justice and two associate justices, who dissented in the Galveston case. To avoid the effect of the Galveston case, we were compelled to hold that the taxing statute is limited to business begun and ended within the state. I could not reach that view. To avoid the effect of the Adams case, we were required to reach the conclusion that interstate carriers could carry their goods through our state, exercise the sovereign powers of the state if they desired in the exercise of the right of eminent domain, and yet be perfectly free to pass up all state business. I could not so construe our constitution or our public service statute. The late case of Ohio River W. R. Co. v. Dittey, 232 U. S. 576, in my opinion throws no light on the question. The statute there under review had reference only to intrastate business, and by its very terms excluded all earnings derived from interstate business. The chance remark in Munn v. Illinois, 94 U. S. 113, quoted with approval in the majority opinion, has many times been pressed upon this court by railroad companies, but I believe that we have hitherto declined to sanction it. I fear that it will in the future cause us serious embarrassment.
For the reasons stated, I am constrained to dissent from the view expressed in the majority opinion.