Ropo, Inc. v. City of Seattle

409 P.2d 148, 67 Wash. 2d 574, 1965 Wash. LEXIS 710
CourtWashington Supreme Court
DecidedDecember 9, 1965
Docket37754
StatusPublished
Cited by35 cases

This text of 409 P.2d 148 (Ropo, Inc. v. City of Seattle) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ropo, Inc. v. City of Seattle, 409 P.2d 148, 67 Wash. 2d 574, 1965 Wash. LEXIS 710 (Wash. 1965).

Opinions

Finley, J.

— Plaintiff cabaret owners instituted this taxpayer’s suit for a refund of admissions tax which they allege was illegally imposed and collected by the city of Seattle. The disputed admissions tax was levied and imposed by Seattle Ordinance No. 72495, which is entitled:

An Ordinance levying an admission tax on persons paying admissions, or who are admitted free or at reduced rates to any place; fixing the amount and providing for the collection thereof; and prescribing penalties.

Section 2 of said ordinance levies a tax in the amount of 1 cent for each 20 cents paid as “admission charges.” The latter term is defined in § 1 of the ordinance as follows:

“Admission Charge,” in addition to its usual and ordinary meaning, shall include ... a charge made for food and refreshments in any place where any free entertainment, recreation or amusement is provided.

The legislature, in enacting RCW 35.21.280, repealed a state admission tax, and provided or authorized municipalities to

levy and fix a tax of not more than one cent on twenty cents or fraction thereof to be paid by the person who pays an admission charge to any place: ...
The term “admission charge” includes:
(3) A charge made for food and refreshment in any place where free entertainment, recreation or amusement is provided; ...

Thus, the city ordinance contains language substantially similar to language employed in RCW 35.21.280.

Plaintiffs are licensed to operate as cabaret owners under §§ 57-63 of Seattle Ordinance No. 48022 and as a Class “H” facility by the Washington State Liquor Control Board. The parties stipulated to the effect that food and both alcoholic and nonalcoholic refreshments are sold in the plaintiffs’ cabarets while free entertainment is being provided cabaret patrons. It was further stipulated that all [576]*576or almost all of the plaintiffs increase the prices of their alcoholic beverages during the hours of “free” entertainment. The trial court granted a refund to the plaintiffs of amounts collected under the ordinance during the preceding 3 years, insofar as the amount of tax remitted was attributable to the gross sales of alcoholic beverages during free entertainment hours. The reasoning or theory of the trial court was to the effect that municipal excise taxes upon liquor are prohibited by the preemption provisions of the Washington State Liquor Act, RCW 66.08.120.

Actually, the keystone of the trial court’s memorandum decision, and the essence of plaintiff-respondents’ argument on appeal, is a legal conclusion that the tax imposed by Seattle Ordinance No. 72495 impinges upon the sale of alcoholic beverages contrary to the provisions of the Washington State Liquor Act preempting the taxation of liquor for the state. However, by interpreting the word “refreshment” (used in RCW 35.21.280 to define “admission charges”) to mean nonalcoholic beverages only, the trial court held the plaintiffs were entitled to a refund of an estimated or pro rata portion of the amount of tax remitted to the city comptroller under the ordinance, and further granted an injunction against levy of the tax upon that portion of gross sales in the plaintiffs’ establishments attributable to the sale of alcoholic beverages.

But we cannot agree with core reasoning of the plaintiff-respondents’ legal formulation or argument: that the incidence of the admission tax imposed by Seattle Ordinance No. 72495 impinges upon or rests squarely upon the sale of alcoholic beverages. The trial court’s linguistic distillation or separation of alcoholic potations from the term, “refreshment,” is not persuasive, and certainly not compelling in the light of the common usage and understanding of this term. In addition, any application of (1) the admission tax-authorizing statute and (2) the levying ordinance to places where free entertainment is provided would be strained, unrealistic and bordering upon the ludicrous, if only nonalcoholic refreshment was said to be includable. It is common knowledge and patently obvi[577]*577ous that most, in fact practically all, of the refreshments served in “night spots” or cabarets where free entertainment is provided are alcoholic. More importantly, the fundamentals of statutory construction lead us to conclude that the tax challenged here is not an “excise upon liquor” but an excise upon the person exercising the privilege of being admitted to a place where free entertainment is provided.

It is an elementary principle of statutory interpretation that legislative intention may be inferred from extrinsic evidence such as the legislative history of prior enactments, the legislative history of the enactment itself, the interpretation given the statute by administrative officials, etc. But the language of the statute is the point at which we begin our inquiry:

In arriving at the intent of the legislative body, the first resort of the courts is to the context and subject matter of the legislation, because the intention of the lawmaker is to be deduced, if possible, from what is said. Hatzenbuhler v. Harrison, 49 Wn.2d 691, 697, 306 P.2d 745, 749 (1957).

The proscription against municipal excise taxes upon liquor is found in the Washington State Liquor Act, Laws of 1933, Ex. Ses., ch. 62, § 29, p. 190:

No municipality or county shall have power to license the sale of, or impose an excise tax upon, liquor as defined in this act, or to license the sale or distribution thereof in any manner; ....

Ten years later, the legislature repealed the state admission tax and authorized municipalities to levy such a tax in Laws of 1943, ch. 80, § 1, p. 165:

Any city or town through its legislative authority is hereby authorized to levy and fix the amount of a tax to be paid by the person who pays an admission charge to any place, . . . The term “admission charge” includes ... a charge made for food and refreshments in any place where any free entertainment, recreation or amusement is provided; ... . (Italics ours.)

[578]*578The preemption provisions of the Liquor Act do not come into play unless the ordinance may be said to impose an “excise tax upon liquor.” Both the statute authorizing imposition of municipal admission taxes and the Seattle ordinance enacted thereunder, characterize the tax as one upon the person paying the admission charge. While that characterization is not conclusive upon us, it is entitled to be given due consideration. Aberdeen Sav. & Loan Ass’n v. Chase, 157 Wash. 351, 289 Pac. 536 (1930); 51 Am. Jur. Taxation § 28 (1944). Furthermore, the state legislature is presumed to be familiar with its own prior enactments. Hatzenbuhler v. Harrison, 49 Wn.2d 691, 306 P.2d 745 (1957).

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Bluebook (online)
409 P.2d 148, 67 Wash. 2d 574, 1965 Wash. LEXIS 710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ropo-inc-v-city-of-seattle-wash-1965.