Opinion
Rehearing Granted July 2, 1930.
In Bank.
Application by the Los Angeles & West Side Transportation Company for writ of prohibition prayed to be directed to the Superior Court of the State of California in and for the County of Sacramento, and Peter J. Shields, Judge thereof, to prevent further proceedings in action by the Attorney General against petitioner to collect state license fees.
Writ denied.
COUNSEL
Harry A. Encell and Samuel T. Bush, both of San Francisco, for petitioner.
U.S. Webb, Atty. Gen., and R. L. Chamberlain and Charles A. Wetmore, Jr., Deputy Attys. Gen., for respondents.
Elmer P. Bromley, H. E. Lindersmith, Frank M. Smith and Phil Jacobson, all of Los Angeles, and amici curiae.
OPINION
SEAWELL, J.
Petitioner, Los Angeles & West Side Transportation Company, a corporation, was at all the times mentioned in its petition herein engaged in the business of transporting persons and property for hire over and upon the public highways of this state by means of motor-propelled vehicles. It failed to pay the state license fees for the year 1923, as provided by the Four Per Cent. Gross Receipts Highway Transportation Act (Stats. 1923, p. 706). Acting upon the written request of the state controller, the Attorney General, on March 16, 1928, commenced an action in the department of respondent superior court presided over by Hon. Peter J. Shields to recover said unpaid license fees, amounting to the sum of $729.54, as by said act provided. Petitioner demurred to the original complaint on jurisdiction grounds, but said demurrer was overruled. Said superior court will, unless prohibited by an order of this court, proceed with the trial of said cause.
Petitioner bases its right to said writ upon the ground that said superior court was divested of jurisdiction to entertain said cause by reason of the direct and unqualified repeal of the act under which said license fees are attempted to be collected by the adoption of chapter 843, page 1708, Statutes of 1927, which repealing statute became effective January 1, 1928, prior to the commencement of the action the trial of which is sought by these proceedings to be restrained. Said chapter 843, Statutes of 1927, contains no express saving clause or provision reserving unto the state the right to collect said fees accrued at the time of its passage. Said act repeals all acts or parts of acts in conflict therewith and makes specific reference to the repeal of the Statute of 1925 (Stats. 1925, p. 833), which latter statute is a continuation of the 1923 act (Bacon Service Corporation v. Huss, 199 Cal. 21, 248 P. 235), and entitled precisely as was said statute of 1923 under which said fees are claimed to be collectible. The 1925 act contains a re-enactment of the 4 per cent. gross receipts highway license fee clause as it existed in the 1923 repealed act. In all material respects said acts are alike.
The repealing act of 1927 (chapter 843) furnishes the grounds of petitioner’s claim that the superior court is without jurisdiction to proceed to the trial of said cause. It is true that said act was approved May 31, 1927, but it is also true that it expressly provided that it was not to become effective until January 1, 1928. It is further true that it contained no express saving clause or reservation to the effect that the rights and remedies of the 1925 act should remain enforceable after its repeal. If that was all of the legislation had on the subject, there would be force in petitioner’s claim. But it is a fact that another statute (chapter 851, Stats. 1927, p. 1742) was approved on the same day, but from its arrangement in the statutes, at a later hour, which became effective before the act of 1925 became extinct by virtue of the repealing act of May 31, 1927. The act of May 31, 1927, which became effective October 1, 1927 (a period of three months before said repealing act of May, 1927, was to become effective), declares in both its title and in the body of the act that it is amendatory of the 1925 act, and the same title by which all of said acts were designated is reincorporated in said act of May 31, 1927. All of said acts provide for the 4 per cent. gross receipts highway license assessment or tax. Although said last-mentioned act purports to be an amendment of the act of 1925, it is in substance a complete act in itself. The 4 per cent. gross receipts highway license is not only carried forward in said act, but it further provides that all license fees or taxes accruing thereunder shall become a lien upon all property of the operator used in producing gross receipts from operations as therein defined. We think it plain that it was not the legislative intent to relinquish its right to collect any assessment or tax which accrued under the 1925 act. We are further of the view that the repealing act of May 31, 1927, was repealed by implication by the act of May 31, 1927. No subsequent act exists purporting to repeal said later act.
Section 15, art. 13, State Constitution, adopted November 2, 1926, in no sense strengthens petitioner’s claim that the state intended to relinquish taxes or assessments which accrued under the 1925 act or any subsequent act. The gross receipts assessment method adopted by the 1923 act, and which has been continued by each successive act, was approved by said amendment to the Constitution as a standard method of providing revenues for highway maintenance. The fact that the rate fixed by the Constitution slightly varied from the rate fixed by statute as to certain kinds of transportation service does not work a change of a system which has long been the general policy of the state, but at most is a mere matter of regulating the amount to be charged pursuant to an approved plan. Said constitutional amendment provides:
‘Nothing herein contained shall affect any tax levied or assessed prior to the adoption of this section.’ Since the adoption of the 1923 statute there has not been a moment of time when the ‘gross receipts’ assessment system was not a part of our highway revenue system. The history of the legislation on the subject furnishes conclusive proofs that the legislature designed it to be a permanent system and did not intend at any time to extinguish any tax accrued to the state under any previous act by reason of subsequent amendments or new legislation. Before the 1925 act became extinct it was amended and the assessment provision was kept alive by the act of May 31, 1927. This being so, the question of extinguishment by repeal is a false quantity in the case.
No other questions are raised which have not been heretofore determined by decision of this court.
The writ is denied.
We concur: WASTE, C. J.; RICHARDS, J.; CURTIS, J.; PRESTON, J.