Bekins Van Lines, Inc. v. Johnson, 130 P.2d 421

Bekins Van Lines, Inc. v. Johnson

130 P.2d 421

Cal.

1942

Check Treatment

*1 ante, Corpus, p. 126 a Writ Halcomb Habeas day filed. 384], this J., Edmonds, concurred. rehearing a No. 4422 application for Grim.

Petitioner’s 27,1942. Edmonds, J., Traynor, J., November was denied rehearing. voted In Bank. Nov. No. 5508. 1942.]

[Sac. LINES, (a Corporation), Appellant, VAN INC. BEKINS etc., JOHNSON, Treasurer, State Re CHARLES G. spondent.

Harry for Appellant. Encell A.

Harry George Campbell, H. MeElroy B. as Amici and Curiae, Appellant. on behalf of Warren, Attorney General, Linney,

Earl H. Assistant H. A. Attorney ft. General, Adrian L. Chamberlain and Deputies Attorney General, Respondent. Kragen, in appeal judgment THE is an COURT. —This judge or- After the trial had favor of defendant.

137 judgment, dered findings fact conclusions law stipulation were waived written On counsel. this state every the record judgment, intendment is in favor presumed and it is every support fact essential to the judgment proved (Gray and found the court. Gray, 185 Cal. 598 ; Freight Miller v. [197 945] Lines, Cal.App.2d ; Mount, P.2d Gordon v. 1069] 125 Cal.App. 932]; p. Cal.Jur. cited.) cases assump The applicable requires there rule tion that proof showed and that found con court cluded that disputed services out of which the tax arose so part were much a plaintiff, so business were customarily directly rendered connection, and so con tributed to the plaintiff’s prin which was the cipal business, that money derived therefrom re must be garded “gross operator” and taxable as such. On original hearing it was assumed that the trial court had effect so appeal found was considered light assumption. reconsideration of the A *3 questions persuaded involved has opinion us on the hearing former correctly adequately disposed ap- of peal. opinion That is adopted therefore opinion of as the rehearing. the court on It as follows: plaintiff The sued to recover additional taxes assessed years 1935 and 1936 provisions under of the Cali- fornia Transportation Motor Vehicle (Stats. License Tax Act 1933, p. 928, amended, as 1935, p. 2176; Deering’s Stats. Laws, 5130d), Gen. Act paid under protest. plaintiff

The engaged was and is in the business of trans- porting property public for hire over the highways of the state motor vehicle and was therefore taxable years pursuant involved to the of said act. entitled, imposing act is “An act a license fee or tax for the transportation persons of or property for or compensa- hire public streets, upon highways tion roads and in the State by motor requires of vehicle.” operators California of within engaging motor the state vehicles the business of transporting persons property any or over within state or hire obtain a license. operator required by section 4 to monthly make a “showing gross receipts report from of such preceding operator for the calendar month.” The section equal that a “license tax provides per three also cent 138 assessed,

gross receipts operation” payable from shall be (§5). every operator 6 monthly provides that must Section operation. keep gross of all an accurate record any oper- paid by if provides that the total taxes Section used ator, including property all license and other taxes persons exclusively prop- or transporting the business .in highways exceed of the state public erty for hire over per operation of such cent of the five paid amount difference operator state, in this between per and five thereafter accru- cent is license taxes credited on ing provides and the balance refunded. Section exclusively operated apply does not to motor vehicles act operating or between incorporated within cities or towns public portion where incorporated cities or towns no highway or towns corporate outside of the limits the cities is traversed. in- “operator” 1(a) shall provides

Section that the word persons corporations operate vehicles or who motor clude all thereby engage highway in this state and upon persons or for hire or com- directly pensation indirectly. either 1(d) oper- ‘gross receipts Section reads: “The term ation’ shall include all entirely beginning ending

motor vehicle or upon propor- proportion based within this state and mileage mileage tion within state the entire gross receipts of is done of over which such business of this passing through, into or out operator on all business state, partly partly this state.” within and without years the Board In 1935 and its return Equalization plaintiff reported its hauls in the state exclusive of transportation business all however, returns, excepted by section 14 the act. cent of the claimed deductions loading and derived from computed it unloading derived operations, also additional sums *4 municipalities. delivery within pick-up and service $25,533.32 of Equalization disallowed deductions Board $1,010.68 operations for unloading and loading and returns; 1935 and delivery service the and pick-up unloading $1,400 operations, loading and $25,570.28 and 1936 returns. It assessed delivery on the service and pick-up years, $2,016.63 those which an additional protest. paid under plaintiff as Motor that inasmuch contention plaintiff’s It is the

189 . Transportation Vehicle License Tax Act was formulated and enacted for purpose of raising revenue for construc tion 16; (§ Bush, In 6 re Cal.2d 43 [56 P.2d 511]; Corp. Service Huss, Bacon Cal. -P. 235]; Valley Lines, Riley, Motor 23 Cal.App.2d Inc. v. 288]), only portion which is derived from actual activities over ‘‘ subject per gross to the tax of cent highways three oh operation.” deduction No was claimed plaintiff loading unloading and time be consumed tween the truck and plaintiff the sidewalk. The argues that 1(d) definition contained section confines word “operation” to the transporting goods actual over the public highways, including unloading, loading sidewalk and distinguished as loading unloading and of such goods between the sidewalk and the house. The record shows packing crating whenever and labor required dismantling distinct from moving goods and furniture and between the loading house and the preparatory sidewalk unloading, and separate charge a paid was made and the charges for such labor were not included Board Equalization receipts subject to tax. But plaintiff claims that it should allowed a deduction proper proportion repre which sents the revenue from between the sidewalk and house, it estimated it at about cent; also that should be permitted separately deductions for the amounts way indicated delivery on its bills pick-up received from and within municipalities. intercity service hauls small con signments plaintiff pick it up found more convenient to with the point deliver use of smaller trucks between the delivery pick-up larger truck or van which was to transport transported had goods over the public highways. intercity In other van or hauls the truck discharged directly received the load at the door. separate pick-up contends that from such delivery municipalities service within connection with intercity excepted hauls should be from assessment under the entirely act because that service conducted munici within does not palities employ highways. Both sides concede that is no decided case which there directly point involves the considered the first claimed under However, opinion plain deduction. we that the are language of the act determines issue. This court has *5 “gross operation” plain held

heretofore from language (Pacific & requires interpretation. which -no Gas See, Roberts, Electric Co. v. 176 Cal. 183 845]. also, 242, McHenry Alford, v. 168 U.S. S.Ct. ; Light 42 L.Ed. & Water Co., State United v. Electric 614] & 857].) 90 Conn. 452 Elec A. In the case of Gas [97 Roberts, supra, Co. similar tric v. somewhat adopted public XIII, applying in section 14 of to Article corporations, “perfectly plain, un service were denominated ” “gross language, re equivocal and contention that the “gross rejected. ceipts” earnings” meant It was was held language contemplate any from the did not deduction “gross receipts operation.” McHenry from In the case Alford, supra, phrase a similar was said to mean “earn arise ings operation,” which because of without (receipts) its exceptions. Likewise any undesignated “gross operation” from must be taken case expressly plain sense limitation or without deduction save as Legislature. only pertinent modified The modification “gross re in this case is that contained definition of quoted ceipts operation” foregoing from which adds to “of motor or motor vehicles phrase the words vehicle . . etc. beginning ending entirely within state and .”, legislative plaintiff The interpret seeks have this court to language only applying proportion as to operation from its which is de from streets rived the actual use of the truck on operation of motor highways. and “Gross undoubtedly language sufficiently plain. vehicles” is was transportation activities of intended to be limited to the warehousing, engaged in sell company might also be strictly or other not related to ing, business goods persons. concedes that words plaintiff of “operation in in the definition of motor vehicles” as used unloading How activities at the sidewalk. loading and clude as to sidewalk ever, goods must be taken activity preparatory connected load inseparable an with how ing unloading operations. We therefore fail to see propor payment of a can excused be than 50 that more license tax based on its claim tion of motor vehicles per cent of preparatory activi devoted time derived sought excepted are to be preparatory activities ties. transportation, essential to much a just as loading of motor actual vehicles, are therefore unloading preparatory which are also rolling along highways. adopt vehicle To plaintiff’s suggestion would language add to definition Legislature express a limitation which the did not and which it must Legis- be deemed it did not intend. If the lature intended from “operation” every to exclude as defined activity customary incidental service and *6 and essential in of transporting goods matter hire, it easily could have to lim- By any said so. failure use such iting Legislature words indicated its intention not so of limiting circumscribing or meaning scope or the act. of (In re Cal.2d 43 Bush, 511].) applicable Under the [56 rules of construction court may supply language not any Legislature which the must be in- deemed have omitted tentionally. no objection urged

There is constitutional or urged application plain could be language of the of All required safeguards act. been have afforded by Legislature taxing No power. exercise of the unreasonable discriminations in are involved and the absence any of such unlawful act classification is constitutional. (Bacon Corp. Huss, 235].) Service v. 199 Cal. P. urged imposition equal It is not that of a tax to percentage a gross receipts transpor the business of including tation all of its operations incidental connected operations and so-called “accessorial” services in purposes is not proper stated the act a exercise taxing fact power. determining that in the fixed charged transportation rate to be or services computed Commission of 40 per the Railroad the state that cent of operations was to acces attributable (see sorial 10, Highway Act, services Stats. Carriers § p. 878) bearing upon legislative a not factor in is intent adopting the definition here under consideration. The fact Legislature distinguish in present that act did not on the rolling any between actual acces argument that sorial services an it intended no dis such tinction. given special significance may

No be the fact not, speak strictly under the act is license tax tax, ing, any a “in lieu” insofar as applicability so-called supra, & Roberts, Electric v. the case of Gas Co. tax not an It is true the license here involved is concerned. assessable; all-purpose and that ad valorem taxes are but Í42

it may be in considered the nature of "in be- an lieu” tax cause of the of section 9 of the act which limit the total payable taxes on in usable the business transportation, including taxes, license to five cent act. as defined may

Nor distinction be made on its intercity require between returns hauls which con intra-city an pick-up delivery service, venience and those require which do method not in the convenient service initiating terminating intercity transportation. plaintiff in Express this connection relies Pioneer Co. Riley, plain 663], Cal. that ease exclusively intercity tiff’s activities were confined hauls. company, formerly competitor plaintiff, Another intercity to intra abandoned all activities and confined itself delivery city exclusively, including pick-up business required by plain service It plaintiff. appeared intra-city good engage tiff in faith did not case intercity pick-up delivery hauls. service full, re on the paid was held that it had its tax based inva port intercity operations by it. No as conducted that the lidity may reason of the fact attach *7 delivery intra-city pick-up plaintiff here taxed its is distinguished intercity service in connection with hauls as supra.) intra-city (In Bush, strictly from its business. re properly in the ease concluded The trial court in trans originated city one for receipts from all hauls which highways or which terminated portation over dis be treated without transportation should city after such gross receipts operation. tinction as taxable intra-city ex- business as receipts is shown computation act were not included cepted from the by the act. Nor defined packing purpose of for the charges for furnished labor were warehousing, included in crating goods, or limitations exceptions All subject taxation. in the additional contemplated by the act were provided The trial plaintiff. protest paid under assessment of the addi- the assessment correctly concluded court the statute. with in accordance tional tax affirmed. judgment participate J., not Traynor, did herein..

CURTIS, J. —I dissent. subject tax which is of this action is claimed under the “An state imposing act a license transportation fee or for the of persons or property, for hire or upon public streets, high- roads and ways (Ital- the State California vehicle, motor etc.” ours.) ics (California Motor Transportation Vehicle License Tax Act p. 928, as 1935, p. [Stats. amended Stats. 2176].)

Under section 1(a) of act ‘operator’ said “The word shall include persons, firms, all . operate . . who vehicles motor upon any public highway in thereby engage this state and transportation of . . property compensa- . for hire or tion, etc.” 1(d) Section reads ‘gross as follows: term “The operation’ shall include all opera- . tion of . . motor vehicles. ...” Section pro- said act vides operator that “Bach motor of a vehicle within this transports state who transport desires for compensa- tion or property upon hire . . . or over public highway within this state application shall make to the Board State Equalization . . . for operate a license to for transportation of . . . property compen- for hire or ’’ sation over in this state.

Under section act, Equalization Board of “shall issue to such applicant a transport license to compensation or hire . . property upon . any public or over highway within this state.” Section 3 of act said makes it unlawful after the effective of the act any person, date firm, etc., operate any motor vehicle persons for hire or compensation over the public highways of obtaining without state such license. Under section 4 of operator said act each required to on or file before the day tenth of each month with Board Equalization “a report showing verified . . . operator preceding month, calendar and such other information relating to his *8 operations may require, board the to enable board to make the assessment provision for which herein A equal made. license tax receipts three cent of operation from derived on and day after the first the act, month the after effective of this date shall be levied assessed said board.” thus be seen from the title of will said act and thereof, subject the is mentioned

each of the sections where pro- that the operator the of a under licensed act, per- are the of this confined to visions public over property for the sons or hire operations, upon upon highways state. It is such operators only the tax assessed. What- license over above operator the ever services are rendered subject excepted tax. services, These are not made any and all services rendered operations would include transported the the over before operator the may be highway and such services as highway the reaches highway. transported property leaves the after the rendered strongly relies majority opinion upon the case & Gas Roberts, Electric v.Co. Cal. 845], proper “gross construction of words the case, operation.” 14 of 13 of section article Constitution, under which the tax enacted that case levy levied, upon “gross tax provided was that the was operation companies,” of such while upon present the tax is provides case the levied statute Com- “gross receipts operation from the of motor vehicles.” enactments, apparent it is that the paring these two section providing case the Roberts Constitution levy upon “gross receipts operation of the company” much broader than the statute “gross from the limits tax to be levied re- motor vehicles.” In one case only in the other ceipts company are taxed while subject are operated vehicle defined as “a tax. As a motor vehicle is highway” it seems clear that public upon or over only levy on those legislative was to a tax intent highway. upon of vehicles herein, judgment I think should stated reasons For the be reversed. J., concurred.

Edmonds,