People v. Herbert's of Los Angeles, Inc.

CONREY, P. J.

The “Retail Sales Tax Act of 1933” is a statute approved July 31, 1933, and which was to “take effect

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immediately”. (Stats. 1933, p. 2599; Leering’s 1933 Supplement, Act 8493, p. 2359.) This action was brought by the state to enforce the payment of taxes claimed under the provisions of that act. Defendant Bngleman appeals from the judgment, which was entered against him upon his failure to answer after the court had overruled his demurrer to the plaintiff’s complaint.

Appellant makes the following statement of the question involved in his appeal: “If a cafe operator, having enjoyed a retail sales business producing gross receipts of a certain volume, fails to pay a tax of two and one-half per cent thereon, under chapter 1020 of Statutes of 1933, and thereafter executes a common law assignment for the benefit of creditors, what preference, if any, shall be given the tax, and is such tax the basis for impressing a lien upon property in the hands of the assignee?”

Appellant rests his ease first upon the proposition that the exaction imposed by the sales tax is not upon the retailer but upon the consumer. He admits that the other points made by him on this appeal are corollaries of the first, and must stand or fall according to the decision of this court with reference to the first point.

The title of the act in question reads as follows: “An act imposing a tax for the privilege of selling tangible personal property and for the privilege of furnishing, preparing or serving tangible personal property, providing for permits to retailers, providing for the levying, assessing, collecting, paying and disposing of such tax, making an appropriation for the administration hereof, prescribing penalties for violations of the provisions hereof, and providing this act shall take effect immediately.”

Appellant admits that the title of this act indicates an intention on the part of the legislature to impose a tax on the retailer and relate it entirely to his privilege of selling-tangible personal property at retail. His claim, however, is that the provisions of the act do not correspond to the legislative intent as expressed in the title, and that, on the contrary, the bill was drafted to directly impose the burden of payment upon the consumer. We think that this claim is not well founded.