PACIFIC ELECTRIC RY CO v. DEPARTMENT OF MOTOR VEHICLES (1935)

Petitioner, a public utility corporation, claiming the benefit of sections 41, 77(a), and 77(c), of the California Vehicle Act of the state of California (chapter 266, pp. 523, 536, St. 1923, as amended), tendered on December 29, 1934, to respondent Department of Motor Vehicles of the state of California the sum of $5,942, and demanded therefor registration certificates for the calendar year 1935 for 212 motor vehicles used by it in the operation of its business as an electric interurban railway corporation during the year 1934. This demand was refused on the ground that said tender was insufficient in amount to comply with the said statute. Hence this proceeding in mandamus.

No facts essential to determination of the controversy are in dispute. The tender made was for the $3 registration item in full for each car as required by said section 77(a), as amended by St. 1929, p. 524, but as to the weight charges provided for in said section 77(c) petitioner tendered an amount which would have been sufficient only in case registration had taken place on July 1, 1935, instead of January 1st of said year. In other words, the essence of petitioner's claim is that it has already paid or has already obligated itself to pay a fee in lieu of said charges for the first half of said year 1935 because of the gross receipts tax assessed against it for the fiscal year 1934–35, pursuant to section 14, article 13, of the Constitution of the state of California, as it stood on May 1, 1933. The real issue then is whether such exemption exists, and a subsidiary issue is also present as to whether or not, if the exemption exists, respondent department has power to issue the certificates for the sum tendered.

The in lieu provisions of said section 14, article 13, of the Constitution, as of May 1, 1933, clearly embraced the excise or privilege tax here involved. Pacific Gas & Electric Co. v. Roberts, 168 Cal. 420, 432, 143 P. 700. Had this provision remained without amendment it would have served to forbid additional taxation on excise charges for the same period upon the same subject-matter. What period is covered by the gross receipts tax assessed in the year 1934, based upon gross earnings of the utility for the calendar year 1933, is a matter in dispute in this proceeding.

By analogy, inference, and contemporaneous construction we have reached the conclusion that by the gross receipts tax provided for in section 14, article 13, of the Constitution as it read on May 1, 1933, is meant taxes for the ensuing fiscal year, as defined by section 5, article 20, of the Constitution, to wit, ‘The fiscal year shall commence on the first day of July.’ That it is so construed as to ad valorem taxes is clear from the following authority: Rollins v. Wright, 93 Cal. 395, 29 P. 58; Rode v. Siebe, 119 Cal. 518, 51 P. 869, 39 L. R. A. 342; Pol. Code, § 3713, as it formerly read. Since the inauguration of the gross receipts tax, the practical construction of the provision has been in accord with the above-mentioned authorities. See Southern California Edison Co. v. State Board, 220 Cal. 420, 423, 424, 426, 31 P.(2d) 384; Southern Pacific Co. v. Richardson, 181 Cal. 280, 281, 184 P. 3.

This being true, petitioner, when the 1934 assessment is paid, will have paid all taxes and licenses assessable against it for the fiscal year ending June 30, 1935. To assess petitioner for full annual weight fees under the California Vehicle Act (St. 1923, p. 523 as amended) would be to collect double charges from it for the first half of said year 1935.

At this juncture, however, respondents invoke the provisions of section 14 1/2, article 13, of the Constitution, voted therein June 27, 1933, reading as follows: ‘The provisions of section 14 of this article as they read on May 1, 1933, shall remain fully operative to and including December 31, 1934, notwithstanding any other provision in this Constitution. From and after January 1, 1935, said provisions shall no longer be of any force and effect; provided, however, that any taxes assessed in pursuance thereof, prior to said date, shall remain fully collectible.’

Under this provision it is insisted that the force which held the California Vehicle Act in abeyance as to petitioner was lifted as of December 31, 1934, and therefore the said act is in full operation. But in this connection it is to be noted that the taxes already assessed against petitioner remain ‘fully collectible.’ We readily conclude, then, that this section does not of itself authorize double taxation. However, conceding that it does so provide, we are then confronted with the following provision, which became a part of section 14 of article 13 of the Constitution on June 27, 1933: ‘* * * Provided further, that no excise, or income tax or any other form of tax of license charge shall be levied or assessed upon or collected from the companies, or any of them, mentioned in the first paragraph of this section, in any manner or form, different from, or at a higher rate than that imposed upon or collected from mercantile, manufacturing and business corporations doing business within this State.’

Therefore, should petitioner be required to pay full annual fees for the year 1935 for its said motor vehicles, there would result a clear discrimination against it in favor of other motor vehicle owners, and particularly in favor of other corporations such as ‘mercantile, manufacturing and business corporations doing business within the state,’ which discrimination seems to have been specifically forbidden by said section 14 as amended.

We are therefore face to face with the fact that petitioner has paid or will have paid full weight fees for the first half of the year 1935. It has tendered to respondents in full the $3 per vehicle charge for the whole year and has also tendered the balance properly due for weight charges for the remainder of the year. In practical operation we are pointed to no reason why respondents should not now issue the certificates provided for and otherwise comply with the statute upon receipt of the fees tendered.

Let the peremptory writ of mandate issue as prayed.

PRESTON, Justice.

We concur: WASTE, C. J.; SHENK, J.; THOMPSON, J.; SEAWELL, J.; CURTIS, J.; LANGDON, J.