State v. Northern Pacific R. Co. , 183 Wash. 33 ( 1935 )

I concur in the views stated by Judge Steinert in the above entitled case and as to all the other like cases now pending in this court.

I wish to add, however, that I particularly deplore the indefinite, unnecessary and summary disposition of the case ofGreat Northern R. Co. v. State, 147 Wn. 630, 267 P. 506. It leaves that case like Mahomet's coffin, suspended midway between Heaven and earth; and, as Mr. Justice Holmes once said in one of his famous dissenting opinions, henceforth, neither bench nor bar can tell whether certain cases alluded to in the majority opinion therein, in much the same way as is the above cited case in the prevailing opinion in these cases, "are to be listed in theindex expurgatorius" or are in the category of cases to be used in the future at pleasure.

The above cited case was the deliberate judgment of this courtEn Banc and concurred in by all but two of the then judges on this bench, including the writer of the opinion in the instant case. It followed the decisions of the Federal supreme court therein cited. It was based upon the sound principle that a public utility, such as the railway company, the telephone company and the like, is compelled by law to serve and cannot withdraw. To the same effect is Northern Pacific R. Co. v.State, 84 Wn. 510, 147 P. 45, Ann. Cas. 1916E 1166.

It is manifest that these utilities cannot separate the receipts of their intrastate from their interstate business. If that be true, then it is indubitably true that the taxes in question are burdens upon interstate commerce, contravening the commerce clause and the fourteenth amendment of the Federal constitution, to which we are fully bound by oath to conform.