King County v. Tax Commission , 63 Wash. 2d 393 ( 1963 )

Hill, J.

(dissenting) — I dissent. The majority rely on Norman v. Department of Labor & Industries (1941), 10 Wn. (2d) 180, 116 P. (2d) 360, which holds that a workman engaged in eradicating poison ivy was engaged in “land clearing,” and therefore entitled to benefits under the Workmen’s Compensation Act (then Rem. Rev. Stat. (Sup.) § 7676, now RCW 51.20.010). We construed that act liberally for the benefit of injured workmen, as the act requires.

We are now construing “clearing of land” under the provisions of the sales tax statute (RCW 82.04.050). The majority conclude that the legislature intended the clearing of river channels of log jams and debris to facilitate flood control to be the “clearing of land,” and the services and charges made therefor to be taxable.

The relevancy of the Norman case to the present problem seems slight. I do not believe that the legislature ever contemplated an attempt to tax a county for the clearing of its river channels.

If we may paraphrase Daniel Webster’s statement, in arguing the Dartmouth College case,² “The Tolt River may be a small stream but there are those who love it.” Those who have fly-fished the Tolt and know its limpid pools and rushing currents would be surprised to be told that its channel is just as much land as is a farmer’s field. Indeed, more so, for to level land for agricultural use is exempt from tax as land clearing, while removing logs and debris from a river channel is taxable as land clearing. Those who have been awed by the Tolt’s sweep and power when spring freshets send its waters swirling, would be surprised to know that the clearing of its channel of logs and debris is a land clearing operation.

We have said that if there was any doubt as to the meaning of a taxing statute, it must be construed most strongly against the taxing power in favor of the taxpayer. Buffelen Lbr. & Mfg. Co. v. State (1948), 32 Wn. (2d) 40, 200 P. (2d) 509; Weyerhaeuser Tbr. Co. v. Henneford (1936), 185 Wash. 46, 53 P. (2d) 308; Union Trust Co. of Spokane v. Spokane Cy. (1927), 145 Wash. 193, 259 Pac. 9.

I believe that King County was entitled to the benefit of a very real doubt as to whether the legislature intended the clearing of river channels for flood control purposes to be the “clearing of land.” The trial court should be affirmed.

Ott, C. J. and Weaver, J., concur with Hill, J.

2 Trustees of Dartmouth College v. Woodward (1819), 17 U. S. 250 (4 Wheat. 518).