State ex rel. Hansen v. Salter, 190 Wash. 703, 70 P.2d 1056 (1937).

               STATE EX REL. HANSEN v. SALTER.           703
 July 1937                    Syllabus.

           [No. 26701. En Banc. July 21, 1937.]
      THE STATE OF WASHINGTON, On the Relation of S.F.
      Hansen et al., Appellants, v. R.W. SALTER, as
           County Assessor of Thurston County,
                     Respondent. 1

[1] LICENSES - TAXATION - UNIFORMITY - EXCISE OR PROPERTY TAX. A
tax upon the use of personal property is an excise tax and is
not subject to the restrictions of the Federal constitution
as to equal protection of the laws or the demands of equality
and uniformity in taxation under the fourteenth amendment to
the state constitution.

[2] CONSTITUTIONAL LAW - TAXATION - RIGHT TO ATTACK TAX - PERSONS
ENTITLED TO RAISE CONSTITUTIONAL QUESTIONS. The county can
not complain of the exemption of "dealers' stocks" from the
operation of an excise tax on automobiles as discriminatory
and unreasonable; since it suffers no injury and only the
injured party may challenge its constitutionality.

[3] SAME. Diminution of county revenues by the withdrawal of
taxes on privately owned automobiles is damnum absque
injuria, since the county has no inherent powers of
taxation.

[4] TAXATION - POWER OF LEGISLATURE - CHANGE IN METHOD OF
TAXATION. An act designed to change the character of an ad
valorem tax on motor vehicles and the method of collecting it
is not an exemption statute, and is within the plenary power
of the legislature.

[5] STATUTES - AMENDMENT - SETTING FORTH ACT AMENDED. Laws of
1937, chapter 228, SS 12, simply identifying the levy of Rem.
Rev. Stat. SS 4936, and imposing a limitation on school
taxes, is not an amendment of all former laws relating to the
limitation on tax levies; and Const. Art. II, SS 37,
requiring an amended statute to be set out in full, does not
apply.

[6] SAME - REPEAL - IMPLIED REPEAL - ACTS PASSED AT SAME SESSION.
Laws 1937, chapter 228, SS 12, being the later enactment
limiting tax levies, constitutes a repeal of Rem. Rev. Stat.,
SS 4936, as amended by Laws 1937, chapter 226, SS 2, so far
as it relates to the levy authorized.


1 Reported in 70 P.2d 1056.

[1] See 103 A.L.R. 97; 5 Am. Jut. 574.

 704    STATE EX REL. HANSEN v. SALTER.
                    Opinion Per BLAKE, J.           190 Wash.

Appeal from a judgment of the superior court for
Thurston county, Wilson, J. entered April 27, 1937,
upon findings in favor of the defendant, in an action
in mandamus, tried to the court. Alarmed.

Smith Troy, E.A. Philbrick., and John S. Lynch, Jr.,
for appellants.

The Attorney General and R.G. Sharpe, Assistant,
for respondent.

BLAKE

BLAKE, J. - This action challenges the constitutionality
of chapter 228, Laws of 1937, p. 1167, an act levying
an excise tax on "Private Motor Vehicles." The
salient features of the act, in so far as we are here
concerned, are as follows: After defining the term
"private motor vehicle" in SS 1, p. 1167, it is provided in
SS 2, p. 1167, that an excise tax shall be imposed "for
the privilege of using" any private motor vehicle in
the amount of "one and one half (1.5) per centum of
the fair market value" of such vehicle. Section 6, p.
1169, provides that the tax imposed shall be in addition
to all other licenses and taxes otherwise imposed,
but declares: "Such vehicles are hereby exempted
from all ad valorem taxes for state, county or municipal
purposes." The act further provides (SS 5, p.
1169) that the county auditor shall collect the tax and
remit (SS 9, p. 1170) it to the state treasurer. The
latter section further provides:

"All revenue derived from the tax imposed by this
act shall upon receipt thereof be credited to
the state school equalization fund."

Section 10, p. 1170, provides that dealers' stocks of
such motor vehicles shall be listed by county assessors
and assessed for ad valorem taxes as other personal
property. Section 11, p. 1171, provides that the first
tax to be exacted by the act shall be for the calendar

               STATE EX REL. HANSEN v. SALTER.           705
 July 1937               Opinion Per BLAKE, J.

year 1938, and that, except as provided in SS 10, no
private motor vehicles shall be listed or assessed for
ad valorem taxes "for the year 1937 or any succeeding
year so long as this act remains in effect." Section
12, p. 1171, then provides for allocation of the revenues
derived from the tax to counties entitled thereto for
common school support, at the same time and upon
the same basis as the state school equalization fund is
required to be apportioned to counties under Rem.
Rev. Stat., SS 4936 (Laws 1933, chapter 28, SS 12, p. 171).
Section 12 further provides that the levy required to
be made under Rem. Rev. Stat., SS 4936, shall not
exceed one and one-fourth mills on each dollar of
assessed valuation.

The relators, the county commissioners of Thurston
county, brought this action in mandamus to compel
the county assessor to list and assess private motor
vehicles, as defined in the act, for ad valorem taxes
for the year 1937. From judgment dismissing the
action, relators appeal.

Appellants attack the validity of the act on five
grounds.

[1] First: It is urged that the exaction is a
property tax - not an excise - and therefore denies
"equal protection of the laws" guaranteed by the
fourteenth amendment of the constitution of the
United States, and the demands of equality and
uniformity in taxation under the fourteenth amendment
to the state constitution. That a tax upon the use of
personal property is an excise, is no longer open to
question in this state. Morrow v. Henneford,
182 Wash. 625, 47 P.2d 1016; Vancouver Oil Co. v.
Henneford, 183 Wash. 317, 49 P.2d 14; Henneford
v. Silas Mason Co., 300 U.S. 577, 57 S. Ct. 524. Being
an excise, the tax is not objectionable upon the grounds
suggested, Unless the exaction is inherently oppressive,

 706    STATE EX REL. HANSEN v. SALTER.
                    Opinion Per BLAKE, J.           190 Wash.

or the classification of the persons or objects
affected is unreasonable, such a tax is valid. State
Board of Tax Commissioners v. Jackson, 283 U.S. 527,
51 S. Ct. 540, 73 A.L.R. 1464. It is not contended that
the tax is inherently oppressive.

[2] Second: But it is contended that the
classification with respect to "dealers' stocks" is
discriminatory and unreasonable. If it be - which we do
decide - it is a defect of which relators may not be
heard to complain. For to the extent that the act
exempts "dealers' stocks" from its operation] the
county, as a taxing unit, suffers no injury, as such
stocks are left subject to assessment for ad valorem
taxes by the county. Only one who is injuriously
affected by an act may challenge its constitutionality.
Vance Lumber Co. v. King County.,
184 Wash. 402,
51 P.2d 623.

[3] Third: We understand the relators to contend,
however, that the county, as a taxing district, is
injured by the exemption of private motor vehicles
(except dealers' stocks) from ad valorem taxation.
Conceding that county revenues may be diminished
by the withdrawal of private motor vehicles from ad
valorem taxation, the consequence to the county may
be said to be damnum absque injuria. For the county
has no inherent powers of taxation. Its power to tax
derives wholly and solely from legislative enactment.
Great Northern R. Co. v. Stevens County, 108 Wash. 238,
183 Pac. 65; State ex rel. School District v. Clark
County, 177 Wash. 314, 31 P.2d 897; Love v. King
County, 181 Wash. 462, 44 P.2d 175.

[4] Fourth: It is suggested that exemption of
"private motor vehicles" from ad valorem taxes
itself constitutes discrimination. But this is in no
sense an exemption statute. It is simply designed to
change the character of the tax, the method of levying

               STATE EX REL. HANSEN v. SALTER.           707
 July 1937               Opinion Per BLAKE, J.

and collecting it, and the disposition of the revenues
flowing from it. This, the legislature has plenary
power to do, under the fourteenth amendment to the
state constitution.

[5] Fifth: It is further urged that, in violation of
Art. II, SS 37, of the state constitution, SS 12 of the act
attempts to amend Rem. Rev. Stat., SS 4936, by reference
merely. The latter section is SS 5, sub-chapter
of the school code (chapter 97, Laws 1909, p. 322),
which relates to school revenues. In substance, SS 5
(Rem. Rev. Stat., SS 4936) requires the county
commissioners of each county to levy a tax on all taxable
property in the county sufficient to produce the sum
of ten dollars for each child of school age, "provided,
that such tax shall in no case exceed five
mills on each dollar, at the assessed valuation." The
section (Rem. Rev. Stat., SS 4936) again appears as
SS 12, chapter 28, Laws of 1933 - an act providing for
school maintenance. There it appears with an amendment
(with which we are not concerned), and without
limiting the amount of the levy to be made. The
section (Rem. Rev. Stat., SS 4936) again appears in
amended form as SS 2, chapter 226, Laws of 1937, p.
1135, creating a fund to be known as the "State School
Equalization Fund." As it appears here, the section
again carries a limitation on the levy - this time not
to "exceed two mills on each dollar of the assessed
valuation." Section 12, chapter 228, Laws of 1937, as
we have seen, limits the levy to one and one-fourth
mills on the dollar at the assessed valuation.

The reference to Rem. Rev. Stat., SS 4936, contained
in SS 12, chapter 228, Laws of 1937, is in no sense an
attempt at an amendment. It does not even refer to
SS 4936, as amended by SS 2, chapter 226, Laws of 1937.
It (SS 12, chapter 228) simply identifies the levy
authorized by Rem. Rev. Stat. SS 4936, and imposes a

 708    STATE EX REL. HANSEN v. SALTER.
           Concurring Opinion Per STEINERT, C.J. 190 Wash.

limitation, which was absent in the section as amended by
SS 12, chapter 28, Laws of 1933. In essence, the reference
to Rem. Rev. Stat., SS 4936, constitutes no more of
an amendment than the forty mill limit laws (chapter
1, Laws 1937, p. 3; chapter 2, Laws 1935, p. 8)
constitute amendments of all former laws relating to
limitation on tax levies. To such a situation, the
constitutional provision (Art. II, SS 37), requiring an
amended statute to be set out in full, does not apply.
See: Holzman v. Spokane,
91 Wash. 418, 157 Pac.
1086; In re Peterson's Estate, 182 Wash. 29, 45 P.2d
45.

[6] In effect, SS 12, chapter 228, Laws of 1937,
constitutes a repeal of that portion of Rem. Rev. Stat.,
SS 4936, as amended by SS 2, chapter 226, Laws of 1937,
in so far as it relates to the limitation of the levy
authorized. For in point of time, SS 12, chapter 228, is the
latest enactment with respect to placing a limitation
on the levy authorized by Rem. Rev. Stat., SS 4936, as
amended. And the rule is applicable that, of conflicting
provisions in different statutes passed at the same
session of the legislature, the provisions of the act last
passed effect a repeal of conflicting provisions in the
earlier act. Commissioners of King County v. Davies,
1 Wash. 290, 24 Pac. 540; Whitfield v. Davies,
78 Wash. 256, 138 Pac. 883.

Judgment affirmed.

MAIN, HOLCOMB, BEALS, MILLARD, GERAGHTY, ROBINSON,
and TOLMAN, JJ., concur.
-Concurring-

STEINERT
-Concurrence-

STEINERT, C.J. (concurring in the result) - I concur
in the result, on the second, third and fifth grounds
assigned in the opinion.