253 P. 1108 | Cal. | 1927
This is a proceeding instituted in the name of the People of the State of California upon the relation of the City of Turlock, a municipal corporation, for a judgment declaring forfeited a certain franchise held by the defendant. The amended complaint alleges that the franchise involved herein was granted by said City of Turlock on the sixteenth day of March, 1909, to J.L. Randolph, his successors and assigns, for a term of fifty years, to erect and operate over the streets of said city poles, masts, and other structures upon which to suspend wires and other appliances for the construction and maintenance of a telephone and telegraph system; that Randolph at some time subsequent to January 1, 1912, assigned and transferred said franchise to defendant; that defendant is the owner, holder, and user of said franchise; and that defendant at all times since the expiration of the five-year period subsequent to the granting of said franchise has paid to the City of Turlock its annual two per cent franchise tax on its gross earnings, except that portion of its gross earnings derived from performing switch service for the farmers' telephone lines that connect with the lines of the defendant at the corporate limits of said city. It is also alleged that said two per cent tax is a tax provided for and required by section 3 of the act known as the Broughton Act. A general demurrer to this amended complaint was sustained by the court without *548
leave to amend, and judgment was entered in favor of defendant. From this judgment the plaintiff has appealed. The principal argument advanced by respondent before the trial court in support of its demurrer, and the one mainly relied upon before this court to sustain the judgment herein, is that by virtue of the provisions of section
Under these circumstances, if the pleadings were otherwise sufficient, the judgment of the court should be reversed and the trial court directed to overrule the demurrer. There is, however, another question presented by the pleadings which we think cannot be passed by without notice. This proceeding is one to declare a forfeiture. It is elementary that forfeitures are never favored by the courts and in order to declare a forfeiture, the allegations of the complaint and the proof in support thereof must be positive and explicit. [3]
Appellant seeks to have the Randolph franchise forfeited by reason, we may surmise, of respondent's failure to pay the two per cent franchise tax on certain of the gross earnings, that is, on the gross earnings *550
received by respondent for performing switch services for the farmers' telephone lines that connect with respondent's lines at the corporate limits. But there is no allegation whatever to be found in the amended complaint that any earnings have ever been received by respondent for such switch services. We cannot even infer from the allegation that the respondent has paid the tax on all earnings received by it except on earnings received for switch services that any earnings whatever have been received by respondent for such switch services. The amended complaint is fatally defective in failing to show that the respondent has received earnings for said switch service and the general demurrer thereto was rightly sustained, but as it is a defect that may be overcome by amendment, appellant should have an opportunity to further amend the complaint. In justice to the trial court we would say that as far as the record shows this defect was not called to its attention at the time of the argument on the demurrer. The parties, it appears, addressed themselves exclusively to the question as to whether section
It is ordered that the judgment be reversed and appellant be given ten days after the going down of the remittitur to further amend the complaint.
Seawell, J., Richards, J., Shenk, J., Waste, C.J., Preston, J., and Langdon, J., concurred.