WEST COAST ADVERTISING CO v. CITY AND COUNTY OF SAN FRANCISCO (1939)

In an action brought to recover taxes illegally collected, the trial court made findings in favor of the plaintiff and from the judgment entered thereon the defendant has appealed.

The taxes were collected under the provisions of certain ordinances. Ordinance No. 4059 N.S. purported to regulate the business of outdoor advertising and in particular the occupation of maintaining billboards. Among other things it required the proprietor to keep books of account and it fixed a license tax in proportion to receipts. The amount of the license tax so imposed on the plaintiff was $90 per quarter. That tax it is conceded was a tax for revenue as distinguished from a tax for regulation. No contention is made that the defendant does not possess the power to tax for regulation. But the defendant admits the tax was for revenue and claims it was nevertheless legally imposed. In view of the conclusion which we have reached it is unnecessary and improper to discuss those claims.

After the transcript was filed, and after all of the briefs had been filed, the defendant informally raised the point, and thereafter argued, that the complaint in the instant case does not state a cause of action because there is no allegation contained therein that prior to the commencement of said action the plaintiff presented a claim against the defendant as provided in section 4075 of the Political Code. Rhoda v. Alameda Co., 52 Cal. 350. The point was not made in the trial court and was first made in this court at the time and in the manner just stated. The defendant is governed by a freeholders' charter. As such it has (1) the powers expressly enumerated therein on municipal affairs; (2) other powers on municipal affairs enumerated in ordinances duly adopted; and (3) in other matters it is subject to and controlled by general laws. Const. art. 11, sec. 6. It will not be controverted that the matter of repayment or refusal to repay taxes illegally collected is a municipal affair. Fragley v. Phelan, 126 Cal. 383, 388, 58 P. 923. By the same token a suit to compel such repayment is a municipal affair. It is not claimed that any section of the charter of 1932 contains any provision expressly requiring as a condition precedent the presentation of a claim to be repaid taxes illegally collected. No ordinance to that effect is called to our attention. However there are other matters that must be considered. As just noted above, in section 6 of article 11 of the Constitution the defendant city was authorized in a charter adopted thereunder “* to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters, and in respect to other matters they shall be subject to and controlled by general laws. *” (Italics ours.) Section 4075 of the Political Code is a “general law”. It was adopted in 1931. In its provisions it is very broad and comprehensive. It is long and need not be quoted. It is sufficient to state it distinctly provides that no suit on any claim shall be brought against the municipality until the claim is presented to the board of supervisors and has been rejected in whole or in part. It was held, under a similar statute, that the presentation of a claim was a condition precedent and should be alleged or a complaint based on the claim would fail to state facts sufficient. Farmers etc. Bank v. City of Los Angeles, 151 Cal. 655, 657, 658, 91 P. 795, and cases there cited. The reasoning of that case was followed by this court in a recent case, Weber v. County of Santa Barbara, 86 P.2d 1069.

Furthermore, section 3 of the charter, although it is expressed in very general terms, is in accord with what we have said. That section provides as follows: “Where a procedure for the exercising of any rights or powers belonging to a city, or a county, or a city and county is provided by statute of the state of California, said procedure shall control and be followed unless a different procedure is provided in, or by ordinance enacted under authority of, this charter”.

Keyes v. San Francisco, 177 Cal. 313, 173 P. 475, is not in conflict with anything we have said. It was decided in 1918 several years before the present charter was adopted. In it the court passed on the meaning of several sections contained in the old charter but which are not contained in the present charter. It also passed on the meaning of section 4390 of the Political Code as said code was then printed. But, on page 325, of 177 Cal. 173 P. 475, it held that said section was not applicable to the city and county of San Francisco.

It is asserted that the following cases are authority to the effect that the plaintiff was not bound to comply with the provisions of section 4075 of the Political Code. Young v. Hoagland, 212 Cal. 426, 298 P. 996, 75 A.L.R. 654; Vitale v. City of Los Angeles, 13 Cal.App.2d 704, 57 P.2d 993; Home Telephone etc. Co. v. City of Los Angeles, 40 Cal.App. 492, 181 P. 100; Hartford Fire Ins. Co. v. Jordan, 168 Cal. 270, 142 P. 839; Whyte v. State of California, 110 Cal.App. 314, 294 P. 417; 3 Cooley on Taxation, 4th ed., pp. 2556–2557. No one of them deals with the point to which they are cited. In each the question discussed is as to what is an involuntary payment within the rule which authorizes the payor to recover. But no one of them otherwise discusses the conditions precedent to the commencement of an action.

The judgment is reversed.

STURTEVANT, Justice.

We concur: NOURSE, P.J.; SPENCE, J.