As I analyze the question presented in this case, the conclusions of my associates upon it are not, as their opinion states, "in harmony with the holding in the case of National Ice & Cold Storage Co. v. Pacific Fruit Express Co., supra”. Nor can I agree that the former decision “went no further than to hold that, on the facts there appearing, a retailer may not expect reimbursement of the tax as to sales under contracts made prior to the effective date of the act”.
In that case the plaintiff claimed that to require it to pay a tax measured by the amount of ice which it sold under a contract in force before the statute was enacted, impaired the obligation of that contract. This court held “that the existence of an executory contract between two or more individuals presents no obstacle to the right or power of the *788state to levy or to impose a tax which may adversely affect the financial interests of either or any of the parties which may have been acquired under or by reason of the mutual covenants of such parties to the contract”. But the court decided against the plaintiff on another ground, namely, that the “direction or mandate” of section 8% of the Retail Sales Tax Act, supra, requiring a retailer to collect the tax from the consumer, “is violative of the due process clause of both the state and federal constitutions with reference to the fundamental right of ownership of property”. Accordingly it affirmed a judgment requiring the plaintiff, as the seller, to pay the tax imposed.
The reason for this holding was stated by the court as follows: “As a legal deduction, it has been judicially declared that a tax constitutes a debt owed by the person upon whom such tax has been legally imposed; and aside from equitable considerations (which here are not involved), to baldly legislate that without, and in the absence of either due or any process of law, a legal debt that is owed by one person must be paid by another, is quite at variance with ordinary notions of that which may be termed the administration of justice. It therefore may be deemed concluded, that as far as may concern the particular or any other provision of the statute to which attention hereinbefore has heen directed, which purports either directly or indirectly to authorize the retailer of ‘tangible personal property’ to collect from or to charge to the purchaser thereof the tax imposed upon its retailer ‘for the privilege of selling’ such property, is unconstitutional and consequently invalid.” (Page 447.)
Although the courts of other jurisdictions may have construed the statutes before them in a different way, that opinion is as plain as words can make it. As I read it, the conclusions there stated are neither explained nor distinguished in the one written by my associates in the present case. Also, the former decision is exactly in accord with the determination reached in Western Lithograph Co. v. State Board of Equalization, 11 Cal. (2d) 156 [78 Pac. (2d) 731,117 A. L. R. 838], where this court said: “The tax being a direct obligation of the retailer and, so far as the consumer is concerned, a part of the price paid for the goods and nothing else, it is neither in fact nor in effect laid upon the consumer. *789It does not become a tax on the sale nor because of the sale, but remains an excise tax for the privilege of conducting a retail business measured by the gross receipts from sales.”
Nor may the present case be decided upon the ground that the purchaser either expressly or impliedly consented to the imposition of a tax, a situation which this court in the National Ice Company case said was not included within the issues there decided. The record here shows not only that the purchaser did not consent to the imposition of the tax but that he paid it under protest.
In my opinion, upon the principles applied in the former decisions of this court, the judgment in the present case should be reversed as ordered by the District Court of Appeal.
Houser, J., concurred.