Drury the Tailor v. Jenner

• Decision Date: 20 February 1942
• Docket Number: 28587.
• Citation: 12 Wn.2d 508,122 P.2d 493
• Parties: DRURY THE TAILOR v. JENNER et al.
• Court: Washington Supreme Court

122 P.2d 493

12 Wn.2d 508

DRURY THE TAILOR v. JENNER et al.

No. 28587.

Supreme Court of Washington

February 20, 1942

Department 2.

Action by Drury the Tailor, a corporation, against T. M. Jenner and T. S. Hedges, as tax commissioners of the state of Washington, to recover taxes paid. From a judgment for the defendants, the plaintiff appeals.

Judgment affirmed.

Appeal from Superior Court, Thurston County; D. F Wright, Judge.

Dix H Rowland, of Tacoma, for appellant.

Smith Troy and Ralph B. Sproule, both of Olympia, for respondents.

JEFFERS Justice.

Drury the Tailor, a corporation, instituted this action against T M. Jenner and T. S. Hedges, as tax commissioners of the state of Washington, to obtain a refund of the sum of $285.66, paid by plaintiff to the state as a tax on its business activity as a manufacturer, pursuant to an assessment made by the tax commission under chapter 180, Laws of 1935 (commonly known as the business and occupation tax law), as amended by chapter 225, Laws of 1939. Plaintiff in its complaint also asked that the tax commission be enjoined from collecting or attempting to collect current or future taxes under such law, and that the commission be required to prescribe a rule to prevent the tax inequality complained of.

The facts in this case are not in dispute, and may be stated as follows: Plaintiff, for the past fifty years, has conducted a merchant tailoring business in Tacoma and Seattle, and is engaged exclusively in fabricating clothing for its customers, upon special orders. Plaintiff's customers select patterns of cloth from those in stock, the cloth selected is then cut and fabricated on plaintiff's premises, in accordance with the measurements taken, and when the operation is completed, the clothes are delivered to the customer, who pays plaintiff therefor a sum which covers the cost of the materials, labor, overhead expenses and profit.

Plaintiff sells men's clothing at retail, as defined in § 2, chapter 225, Laws of 1939, amending § 5, chapter 180, Laws of 1935, as amended by § 2, chapter 227, Laws of 1937, and has paid a tax on its sales at retail. Plaintiff was also classified by the tax commission as a manufacturer, and an additional tax was assessed against plaintiff for the period May 1, 1939, to April 30, 1940, under the 'manufacturing' classification, in the sum of $285.66, including interest. The tax last above mentioned was paid by plaintiff on August 8, 1940.

Job printers are assessed under the act at one-quarter of one per cent on their gross income, although job printers produce printing on special order, the job printers furnishing the materials.

Plaintiff has certain competitors who do the same kind of business as plaintiff, except that they manufacture outside the state the clothing sold by them, and these persons pay only a retail tax of one-quarter of one per cent.

The case was tried to the court, and thereafter the court entered judgment wherein it decreed that plaintiff take nothing under its complaint, and that the action be dismissed. Plaintiff has appealed from the judgment entered September 2, 1941.

Appellant makes two assignments of error: (1) The court erred in dismissing the complaint and awarding costs against plaintiff. (2) The court erred in not granting appellant's demand for judgment in the sum of $285.66, and interest, and in not restraining respondents from imposing the tax on appellant as a manufacturer in the future, and in not requiring the tax commission to prescribe a rule to correct the tax inequality.

This action involves a consideration of certain sections of the business and occupation tax law, being title II, chapter 180, Laws of 1935, as amended by chapter 225, Laws of 1939. Following are the provisions of the statute to be considered in connection with the questions raised here.

Section 1, chapter 225, Laws of 1939, provides:

'That section 4, chapter 180, Laws of 1935, as amended by section 1, chapter 227, Laws of 1937, (section 8370-4, Remington's Revised Statutes), be and the same hereby is amended to read as follows:

'Section 4. From and after the first day of May, 1935, there is hereby levied and there shall be collected from every person a tax for the act or privilege of engaging in business activities. Such tax shall be measured by the application of rates against value of products, gross proceeds of sales, or gross income of the business, as the case may be, as follows:

'(a) Upon every person engaging within this state in business as an extractor * * * [not material herein]

'(b) Upon every person engaging within this state in business as a manufacturer; as to such persons the amount of the tax with respect to such business shall be equal to the value of the products manufactured, multiplied by the rate of one-quarter of one per cent;

'The measure of the tax is the value of the products so manufactured regardless of the place of sale or the fact that deliveries may be made to points outside the stat; '(c) Upon every person engaging within this state in the business of making sales at retail; as to such persons, the amount of tax with respect to such business shall be equal to the gross proceeds of sales of the business, multiplied by the rate of one-quarter of one per cent;

'(d) Upon every person engaging within this state in the business of buying wheat, oats and barley, but not including any manufactured or processed products thereof, and selling the same at wholesale * * * [not material herein]

'(e) Upon every person except persons taxable under sub-section (d) above engaging within this state in the business of making sales at wholesale * * * [not material herein]

'(f) Upon every person engaging within this state in the business of printing and of publishing newspapers, periodicals or magazines; as to such persons, the amount of tax on such business shall be equal to the gross income of the business multiplied by the rate of one-quarter of one per cent;

'(g) Upon every person engaging within this state in any business activity other than or in addition to those enumerated in sub-sections (a), (b), (c), (d), (e) and (f) above * * * [not material herein]'.

Section 2, chapter 225, Laws of 1939, defines the words and terms referred to in the above-quoted section, and provides in part as follows:

'That section 5, chapter 180, Laws of 1935, as amended by section 2, chapter 227, Laws of 1937, (section 8370-5, Remington's Revised Statutes), be and the same hereby is amended to read as follows: * * *

'(c) The word 'sale' means any transfer of the ownership of, or title to, property for a valuable consideration and includes any activity classified as a 'sale at retail' or 'retail sale' under sub-section (d) of this section. * * *

'(d) The term 'sale at retail' or 'retail sale' means every sale of tangible personal property other than a sale to one who purchases for the purpose of resale in the regular course of business or for the purpose of consuming the property purchased in the producing for sale a new article or substance, of which such property is an ingredient or component or a chemical used in processing same. The term 'sale at retail' or 'retail sale' shall be construed to include: (1) The production, fabrication or printing of tangible personal property for consumers thereof upon special order and shall also include the production, fabrication or printing of tangible personal property for consumers thereof who furnish either directly or indirectly the materials used in such work. * * *

'(j) The word 'manufacturer' means...