Reset A A Font size: Print

District Court of Appeal, Third District, California.


Civ. 5160.

Decided: June 19, 1934

H. J. Bischoff, of San Diego, for appellants. U. S. Webb, Atty. Gen., and R. L. Chamberlain, Deputy Atty. Gen., for the People.

This is an appeal by the defendants from a judgment awarding the plaintiff the sum of $971.52 license fees assessed against the defendants for the quarter ending 1926, under and in accordance with the provisions of chapter 412, Statutes of 1925 (page 833), imposing a tax of 4 per cent. upon the gross proceeds for the operation of motor vehicles upon the public highway.

On November 2, 1926, the people of the state of California amended article 13 of the Constitution by adding thereto section 15. This section imposes a license tax upon persons operating motor vehicles of the kind therein described, upon the public highways of the state. This section also contains a provision that nothing therein shall affect any taxes levied or assessed prior to the adoption of the section.

Notwithstanding the decision of the Supreme Court in the case of People v. Borderland Express et al., 218 Cal. 680, 24 P.(2d) 823, holding in a case the exact parallel of the one under consideration that the contention of the appellants is untenable, the argument is presented that under the holding had in the case of City and County of San Francisco v. Pacific Telephone & Telegraph Company, 166 Cal. 244, 135 P. 971, judgment should have been entered in favor of the appellants, the contention being that the holding in the Borderland Express Case is incorrect and not in consonance with the reasoning of the Supreme Court in the case of Pacific Telephone & Telegraph Company. A careful review of the two cases leads us to the conclusion that there is no conflict in the rules of law therein set forth.

In the case of Pacific Telephone & Telegraph Company, supra, the action involved a license tax for the first two quarters of the year 1911. Section 14 of article 13 of the Constitution involved in that action was adopted on November 8, 1910, and became effective as a part of the Constitution immediately upon its adoption, but its operative effect upon the license taxes involved began with the 1st day of January of the year 1911.

The second paragraph of subdivision (b) of section 15 of article 13 reads: “The taxes herein provided for shall become a lien on the first Monday in March of each year after the adoption of this section and shall become due and payable on the first Monday in July thereafter.” Thus, while it is a settled law that an amendment to the Constitution becomes effective as a part of the Constitution upon its adoption by the voters of the state, its operative effect upon the subject-matter therein contained may begin at a later date. This we think clearly appears to be the true consideration that should be given to the operation of section 15 of article 13 of the Constitution quoted above.

A considerable portion of the appellants' brief has been given to a discussion of the words “levied” and “assessed.” However, these words we think must be construed according to the meaning contained in the context of the constitutional amendment. As so used, they really refer to the report of the gross proceeds made by the owners or the operators of the vehicles, subject to the provisions of the section, and then a mathematical calculation of the sum of money which the operators or owners are under obligations to pay. It is apparent that the words “levied” and “assessed” relate simply to the method of ascertaining the extent of the obligation and not to the meaning of the words when used in connection with other transactions, such as the levying of an attachment or the assessing of real estate by assessors and the levying of a tax by boards of supervisors.

As we read the opinion in the case of San Francisco v. Pacific Telephone & Telegraph Company, supra, had the license tax been due for the two quarters ending with December 31, 1910, instead of for the two quarters beginning with January 1, 1911, the decision would have been exactly the same as that in the case of People v. Borderland Express, supra. Under such circumstances this court, we think, is bound by the two decisions, and must hold that the judgment of the trial court should be affirmed. And it is so ordered.

Mr. Justice PLUMMER delivered the opinion of the court.

We concur: PULLEN, P. J.; R. L. THOMPSON, J.

Copied to clipboard