(dissenting) — In 1933, the Washington State Liquor Control Act was enacted by the state legislature. Known and cited as RCW Title 66, the act contains the following provision which relates to the issues of this case.
RCW 66.08.120
No municipality . . . shall have power to license the sale of, or impose an excise tax upon, liquor as defined in this title, or to license the sale or distribution thereof in any manner ...
*580It cannot be disputed that the tax imposed by Seattle Ordinance 72495 is computed on a percentage of the respondents’ gross sales of liquor. How can it be said that the tax is a tax on the person, when each person pays a different tax, depending on the amount of liquor and refreshments which he purchases? I do not think that the city can, by simply defining the tax as a tax on persons, change the true incidence of the tax. Common sense decrees that it is a tax on purchases of liquor; and such a tax is clearly forbidden by RCW 66.08.120.
The trial court recognized this fact but was then confronted with the problem of reconciling the provisions of RCW 66.08.120 with those of RCW 35.21.280, which provides:
Every city and town may levy and fix a tax of not more than one cent on twenty cents or fraction thereof to be paid by the person who pays an admission charge to any place: Provided, no city or town shall impose such tax on persons paying an admission to any activity of any elementary or secondary school. This includes a tax on persons who are admitted free of charge or at reduced rates to any place for which other persons pay a charge or a regular higher charge for the same privileges or accommodations. The city or town may require anyone who receives payment for an admission charge to collect and remit the tax to-the city or town.
The term “admission charge” includes:
(3) A charge made for food and refreshment in any place where free entertainment, recreation or amusement is provided ...
Since the legislature did not define the term “refreshment,” the courts must look elsewhere for the intended meaning. Repeals by implication, of course, are not favored, and if “refreshment” is regarded as including alcoholic beverages, RCW 35.21.280 effects a partial repeal of RCW 66.08.120. Merriam-Webster, Third New International Dictionary, defines the word as “2 a. something (as food, drink) that refreshes: means of restoration or reanimation b. refreshments pi: a light meal: Lunch . . . .’’No *581mention is made of alcoholic beverages, and I do not think it is generally conceded that they “refresh.” Rather, they intoxicate, and if consumed in sufficient quantities, debilitate.
Of course, the term in its widest meaning includes alcoholic drinks, but I think that in endeavoring to reconcile this statute with the liquor control act, a narrower meaning must be ascribed to the word. The majority argue that an absurd result is achieved if the city is allowed to tax sales of nonalcoholic beverages in places where free entertainment is provided, but is forbidden to tax sales of alcoholic beverages in such places. However absurd this result may appear, it accords with the legislative prohibition against taxation of such sales by cities.
I do not think it is any more difficult to adopt a definition of “refreshment” that does not include alcoholic beverages than it is to accept the proposition that a tax measured by the amount of refreshments consumed by an individual is a tax on the person. It is just as easy to say that a tax measured by the amount of property owned by a man is a tax on his person. One or the other of these two logically not-quite-acceptable propositions must be accepted by the court. That accepted by the trial court gives effect to both statutes; therefore I believe it is the more reasonable.
In my opinion, the holding of the trial court that the tax is illegal was correct. If the tax were measured by the amount by which the price of beverages is increased during entertainment hours, a different question would be presented, and I would be inclined to say that it did not offend the provisions of RCW 66.08.120.
I do not think that the plaintiffs are entitled to any relief beyond a declaratory judgment or restraining order, however. They were not required to and did not pay the tax but merely collected it and remitted it to the city. They do not contend that they are suing on behalf of the actual taxpayers and will pass the refund on to them. Consequently, to refund the taxes to them would constitute an unjust enrichment. Shannon v. Hughes & Co., 270 Ky. 530, 109 S.W.2d 1174.
*582I would affirm the trial court’s holding that the taxes were illegally collected but would reverse its order requiring a refund to the plaintiffs.
Hunter, J., concurs with Rosellini, C. J.
Donworth, J., concurs in the result of the dissent.
February 28, 1966. Petition for rehearing denied.