The opinion
Blake, C. J.
(dissenting) — Respondent brought this action for a refund of excise taxes paid as a “distributor” of fuel oil under the provisions of chapter 180, Laws of 1935. It set up two causes of action: One for the recovery of $206,790, with interest, for taxes paid pursuant to the act, without protest; the other for $17,517, with interest, for taxes paid under protest. The appellant cross-complained for $129,000 for taxes due and accruing under the act subsequent to May, 1938. The lower court entered judgment in favor of
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the respondent on both causes of action and denied recovery to the state on its cross-complaint.
The judgment was based on the holding of this court in
State v. Fidelity & Deposit Co. of Maryland,
194 Wash. 591 , 78 P. (2d) 1090 . I do not think, however, that that case is authority for holding that respondent is not a “distributor” under the third definition contained in Laws of 1935, chapter 180, § 79. While in that case it was broadly stated that the Northern Pacific Railway Company did not come under any of the definitions contained in § 79, the question presented and decided was whether the railway company came within the second definition as one who
“imports any fuel oil,”
etc.
I think that respondent clearly comes within the third definition of the term “distributor” as defined in § 79. That provides:
“The word ‘distributor’ shall mean and include . . . any person who having acquired in this state in the original package or container fuel oil and/or diesel oil, shall distribute or sell the same, whether in such original package or container in which the same was imported or otherwise, or
in any manner uses the same; . .
.” (Italics mine.)
And I am warranted in saying that the respondent thought so, too, until this court handed down its decision in
State v. Fidelity & Deposit Co. of Maryland, supra.
For, on June 4, 1935, respondent, pursuant to §81 (incorporating as a part of the title chapter 58, Laws of 1933, § 2), applied to the director of licenses for a license as a “distributor” of fuel oil. This license was voluntarily renewed by respondent on July 1, 1936, and again on June 17, 1937.
I dissent.