(dissenting)—I dissent, for I believe the majority opinion extends the doctrine of Bornstein Sea Foods, Inc. v. State, 60 Wn. (2d) 169, 373 P. (2d) 483 (1962) to a factual situation that is not within the ambit of RCW 82.04-.120, quoted infra.
The majority opinion describes the process in question. The record and exhibits, however, do not give me the impression that the process is as complicated as the opinion suggests.
“Splitting a pea” is a misnomer; nature furnishes it in two parts, and then wraps it. The processing only unwraps it and the parts are thus separated.
Is this “manufacturing” under the taxing statute? I do not think so.
The statute provides:
“ ‘To manufacture’ embraces all activities of a commercial or industrial nature wherein labor or skill is applied, by hand or machinery, to materials so that as a result thereof a new, different or useful substance or article of tangible personal property is produced for sale or commercial or industrial use, and shall include the production or fabrication of special made or custom made articles.” RCW 82.04.120.
The statute lists four requirements:
1. The activities must be of a commercial or industrial nature;
*5592. Labor or skill must be applied by hand or machinery;
3. A new, different or useful substance or article of tangible personal property must be produced;
4. The article or substance produced must be for sale or commercial or industrial use.
We are concerned only with the third requirement: Is “. . . a new, different or useful substance or article of tangible personal property . . . produced”?
Bornstein Sea Foods, Inc. v. State, supra, is the latest pronouncement of this court on the subject. Therein, the court concluded that filleting a fish was “manufacturing” under the statute because
“. . . a fillet, once produced, is different from a fish, and hence a new and different article has been created.
This conclusion was reached by applying the following rule:
“. . . We think the test that should be applied to determine whether a new, different, and useful article has been produced is whether a significant change has been accomplished when the end product is compared with the article before it was subjected to the process. By the end product we mean the product as it appears at the time it is sold or released by the one performing the process.” (Italics mine.)
The majority opinion restates the rule of Bornstein but recognizes that it is
“. . . somewhat general in nature and may seem easier as a matter of articulation than as a matter of application.”
The nucleus of the comparison test is “significant change,” which, in the abstract, may mean many things to different men. Is the change from a whole pea to a split pea significant, meaningful, of consequence, or momentous? I do not think so. Implicit in “manufacturing” is the concept that something has been changed to make a new or different product. The trial court found, however, and the record substantially sustains the finding that
*560“. . . Whether split or whole, there is no change in the pea substance either chemically, by change of color, change of taste, or otherwise. ...”
Decisions of this court prior to Bornstein3 held the process to be manufacturing if there was a change in substance. I agree that the change must be significant.
Bornstein fixes the outer boundary of the definition of “manufacturing” under the statute. It introduces a new element.
“ . . . The process of filleting transforms near valueless whole bottom fish into useful and salable consumer items. This change is significant. . . . ”
In the instant case, there is no change in substance; there is no significant change in usefulness. The processor started with a substance and at the end of the routine had the same substance—only in smaller pieces. Both the whole and the split pea are used for substantially the same purposes. The pieces of the pea are not a new or different article of tangible personal property within the meaning of the taxing statute; hence the process is not taxable as “manufacturing.”
The logic of the majority opinion places the definition of “manufacturing” at the whim of the State Tax Commission.
If this is a “Pigs is Pigs”4 argument, so be it.
I would affirm the judgment of the trial court.
Hill, and Hamilton, JJ., concur with Weaver, J.
September 20, 1963. Petition for rehearing denied.
Stokely-Van Camp v. State, 50 Wn. (2d) 492, 312 P. (2d) 816 (1957); Crown Zellerbach Corp. v. State, 53 Wn. (2d) 813, 328 P. (2d) 884 (1958).
Short story by Ellis Parker Butler (1905). Encyclopedia of Modem American Humor, Doubleday & Company, Inc. (1954).