(dissenting)—In this action Escrow Service Co., Inc., an Oregon corporation (hereinafter referred to as respondent), seeks to recover upon certain promissory notes which were executed by appellant George E. Cressler, during the year 1956, in Portland, Oregon. Appellant Pauline G. Cressler, wife of appellant George E. Cressler, did not join her husband in executing the notes. It is undisputed that the notes were given in order to secure funds to finance the operation of an Oregon business, known as the Western Lumber Co., in which appellant husband was a partner, and as to which appellant wife, Pauline G. Cressler, certainly had, to say the least, some community interest. The single question raised in the trial court and on this appeal is whether the appellants’ Washington community property can be reached to effect payment and satisfy the promissory note. The trial court answered this question in the affirmative and entered a judgment in favor of the respondent, enforcible against the separate property of appellant husband, and also against the Cressler’s community property. This appeal followed.
There can be no question that if the notes, though executed by appellant husband alone, had been executed in the state of Washington community liability would follow, for there was clearly an expectation of community benefit involved in the transaction respecting which the notes, were given. Beyers v. Moore (1954), 45 Wn. (2d) 68, 272 P. (2d) 626; and cases cited therein. However, appellants urge that in the instant case a different result should be reached because the notes were executed in Oregon, a jurisdiction which, as shown by the pleadings, is not a community-property state. In making this contention, appellants rely upon Achilles v. Hoopes (1952), 40 Wn. (2d) 664, 245 P. (2d) 1005. The case, as I read it, is factually indistinguishable from the instant case. In Achilles this court held that the community or separate character of a debt incurred solely by a husband is determined by the law of the place where the debt arose, with the result that where such a debt is incurred in a noncommunity-property state there can be no community liability. This holding was based upon the early case of *46La Selle v. Woolery (1896), 14 Wash. 70, 44 Pac. 115. In that case the defendants, husband and wife, had resided in Wisconsin for a number of years before moving to this state. During the period of their Wisconsin residency, the husband, a contractor and builder, had purchased supplies for his business from the plaintiff. When the husband failed to pay, the plaintiff brought suit in Wisconsin and recovered judgment. However, before the plaintiff was able to obtain satisfaction of his judgment, the defendants moved to the state of Washington.' Thereafter, the plaintiff sued in the Washington court, seeking to subject to the lien of his judgment certain property acquired by the defendants after they moved to Washington.
Initially, this court held in favor of the plaintiff-creditor, La Selle v. Woolery (1895), 11 Wash. 337, 39 Pac. 663, making the following explanatory statement:
“. . . It appears from the statutes set out in the answer that in that state [Wisconsin] there is no such thing as community property as understood here, nor is there any such thing as separate property of the husband as defined by our laws. ... .
“In our opinion the comity which one state, owes to another goes to the substance rather than the form .of things. If a certain right is- given, in one state as to property of a certain nature, comity would require that those rights should be enforced in another state as to property of the same natdre though it might be called by a different name. In the:State of Wisconsin property which was acquired by the joint labors of- the husband and wife, though called the property of the husband, was subject to the payment of debts incurred by the husband in the prosecution of business for the support of the family. Property acquired in the same manner in this state belongs to the community but is-subject tó a liability-incurred by the husband alone in the prosecution of business for the same object. . . . ”
‘However, subsequently, the La Selle case was reheard (14 Wash. 70, 44 Pac: 115), and a contrary result was reached. Referring to this about face in decisional law, Professor Marsh, in Marital Property in Conflict of Laws, comments as follows (p. 150):
*47“Nevertheless, the court purported to find that by the law of Wisconsin this debt was a ‘separate’ or ‘noncommunity’ debt of H, and gave judgment for the defendants. How was it possible to find such a rule in the law of Wisconsin? The reasoning is very simple. The court found assertions in the Wisconsin decisions that debts incurred by the husband in that state were his ‘separate’ debts, meaning thereby that the ‘separate’ property of the wife was not liable for them. Of course, every debt contracted by the husband in Wisconsin would be a ‘separate’ debt in this sense. The Washington court then reasoned as follows: This debt of the husband is a ‘separate’ debt by the law of Wisconsin [meaning, ‘not chargeable upon the wife’s “separate” property’]. The law of the place of making of the contract [Wisconsin] governs the ‘character’ of the debt. Therefore, this is a ‘separate’ debt of the husband [meaning, ‘not chargeable upon the community property of husband and wife’].”
Professor Marsh concludes with the comment that
“The verbal fallacy in this argument is about as obvious as that in the old syllogism: All batteries are torts. An automobile has a battery. Therefore, an automobile is a tort.”
In summary, it may be said that, in the first opinion in the La Selle case, the court looked beyond the form of things and to the real substance of the matter; whereas, upon rehearing, the court never got beyond matters of form. I am convinced that the approach taken in the second La Selle opinion was erroneous and led this court to an inept, unnecessarily inconsistent and unjust result. As noted earlier, had the promissory notes involved in the instant case been executed in Washington, community liability would clearly follow. (In addition, if the notes, though executed in Oregon, had been executed by an Oregon husband who had thereafter remained in Oregon, the respondent-creditor would have been able to reach all property in satisfaction of the debt, except that separately owned by the wife.) Yet, under the reasoning of this court as set forth in the second La Selle v. Woolery, supra, opinion (which, concededly, has been followed not only in a number of subsequent “contract” cases, but, also, by analogy in two cases involving torts committed by Washington domicili*48aries while visiting in noncommunity-property states)1, an inconsistent result is reached. For no other reason than because the notes were executed in Oregon by a husband who, when suit was brought, was a Washington domiciliary, the respondent-creditor is unable to reach any of the property acquired by the appellants subsequent to their marriage, except such property as appellant husband may, perchance, have acquired by gift, bequest, devise or descent (see ROW 26.16.010, defining separate property of a husband) .
After considerable reflection on the matter, it is my opinion that we should depart from the demonstrably fallacious reasoning of the second La Selle opinion and the subsequent cases relying thereon. Property which a sister state may consider to be “separate” may include property which is characterized in this state as “community”. It is equally clear that not all of the property we call “community” may come within the meaning of “separate” in another state. If we were to apply the law of Oregon in this case, we would have to say that the creditor is entitled to levy against all property in this state of the character he could reach in Oregon where the contract was made. (The majority’s application of the doctrine lex loci contractus results in an application of Oregon labels or characterizations, not Oregon law, because of a. failure to recognize the difference between “separate” property in Oregon and “separate” property in Washington.) Since there is no community property law in Oregon, no solution to the problem in this case can be found in Oregon law. Any attempt to superimpose Oregon characterizations with respect to property over Washington characterizations is doomed to endless frustration. The characterizations found in Oregon law *49simply do not fit when juxtaposed with the Washington community property system.
It is my opinion that barren semantic exercises should not bar a creditor on a foreign contract from levying upon property that would be available to him had the contract been executed in Washington. The creditor should not be able to levy on property which is characterized in Washington as the separate property of the wife, Pauline G. Cressler. The creditor should be able to reach that property which is characterized in Washington as the husband debtor’s separate property; this is what the present rule declares and what the majority opinion holds. The creditor should also have available to him the property of the community to the same extent that he would have if the contract were executed in Washington.
The majority suggest that overruling the second La Selle case would be in effect “judicial legislation,” because the legislature deliberately or from lack of time declined to achieve the same effect by statute. I do not believe legislative inactivity in this instance rises to the dignity of a legislative enactment. This is not a situation in which legislative inaction is to be interpreted as tacit approval of judicial interpretation of a statute, for cases of the La Selle genre do not require examination of the meaning of our community property statutes but start from the premise that there is, by virtue of those statutes, a clear distinction between community and separate property and go on to determine the effect of the distinction upon foreign judgments.
The legislature has the power to establish rules of evidence, create or abolish bases of liability, and in other ways mold the law to provide rules for the determination of lawsuits. To hold that every bill of such a nature introduced into the legislature but not passed by it is a manifestation of legislative intent and a directive to the courts not to effect a change similar to that attempted by the unsuccessful bill approximates, in my opinion, (1) extreme naivete respecting the nature of the legislative process, and *50(2) an abdication of judicial function and responsibility that should not be condoned by resort to legal fiction.
This court, without the aid of the legislature, overruled the first La Selle case and established the doctrine of the second La Selle case. It is not only within the power of the court, but it is its duty now to abandon the rule which is as ill-advised and unjust today as when it was adopted in 1896.
For the foregoing reasons, I dissent.
Rosellini, J., concurs with Finley, C. J.
December 6, 1961. Petition for rehearing denied.
The “contract” cases, in addition to Achilles v. Hoopes, supra, are Meng v. Security State Bank (1943), 16 Wn. (2d) 215, 133 P. (2d) 293; Huyvaerts v. Roedtz (1919), 105 Wash. 657, 178 Pac. 801; and Clark v. Eltinge (1902), 29 Wash. 215, 69 Pac. 736. The “tort” cases are Maag v. Voykovich (1955), 46 Wn. (2d) 302, 280 P. (2d) 680 (but see Judge Hill’s concurring opinion); and Mountain v. Price (1944), 20 Wn. (2d) 129, 146 P. (2d) 327.