Opinion
No. 24491. En Banc.
June 15, 1933.
APPEAL AND ERROR (364) — HEARING AND REHEARING — DIVIDED COURT. Where, one of the judges being absent, the remaining members of the court are evenly divided in opinion as to the proper action to be taken on an appeal, the court may order the same to be taken under advisement until the further order of the court, or until it can be heard En Banc before a full court (MITCHELL, MILLARD, and STEINERT, JJ., dissenting).
ORDER.
The above-entitled consolidated causes having been argued on April 14, 1933, to the court, sitting En Banc (Judge Emmett N. Parker being absent because of illness), and the members of the court who heard the causes being equally divided in opinion as to the proper action to be taken on the appeal, four standing for affirmance of the judgment appealed from and four for its reversal, and there being consequently no constitutional majority of the court in favor either of reversal or affirmance;
IT IS ORDERED that the actions be held under advisement until further order of the court or until the causes can be reargued to the court composed of nine judges sitting En Banc.
Dated this 15th day of June, 1933.
By the Court: WALTER B. BEALS, Chief Justice.
We dissent. These cases involve the constitutionality of Chapter 5 of the Laws of 1933 (Initiative No. 69), which is the graduated income tax law. The actions were tried in the superior court for Thurston county, and the act was held unconstitutional. An appeal was taken to this court, with the result indicated in the foregoing order. In the hearing upon the appeal, the matter was exhaustively argued and thereafter fully considered. The cases have been pending here since their submission on April 14, 1933. Each and every judge participating has had full opportunity to pass upon the matter, and has done so. The appeal failed to receive the constitutional majority necessary to reverse the trial court. Hence, the judgment of that court should stand affirmed. This result follows the procedure that has always obtained in this court. In Clise v. Carroll and in Edwards v. Carroll, reported in 163 Wn. 704, 300 P. 1047, 1048, actions involving certain proceedings with reference to the recall of the mayor of the city of Seattle, exactly the same situation existed as is here presented. In both of those cases, we said, by per curiam decision:
"One of the judges of this court being incapacitated and absent on account of illness, this case was argued to the remaining eight judges sitting En Banc. These eight judges are divided in their opinions and there is no majority either for affirmance or for reversal.
"Therefore the judgment of the lower court stands affirmed."
The rule there invoked and followed applies here and should control, to the effect that the judgment of the lower court should stand affirmed.