
    [No. 24491.
    
      En Banc.
    
    June 15, 1933.]
    William M. Culliton et al., Respondents, v. Samuel H. Chase et al., Appellants. McKale’s, Inc., et al., Respondents, v. Samuel H. Chase et al., Appellants.
      
    
    Dated this 15th day of June, 1933.
    By the Court: Walter B. Beals, Chief Justice.
    
    
      
      Reported in 22 P. (2d) 1049.
    
   Mitchell, Millard, and Steinert, JJ.

(dissenting) —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 foreg’oing 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 Wash. 704, 300 Pac. 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.  