People v. County of Imperial

BARNARD, P. J.

This is an action to recover amounts claimed to be due for sales and use taxes on certain sales and purchases of tangible personal property made by the defendant over a period of several years. The purchases made consisted mostly of books for the county library and the sales consisted of crushed rock and gravel sold to the city of Imperial for road purposes, of wood obtained through county operations and sold to the poor, and of materials and equipment originally purchased for use in constructing and maintaining roads and highways but which had become antiquated or no longer required for public use. The road material and the wood were sold at cost, and all proceeds were paid into the county treasury.

The first two counts of the complaint allege that during a certain period the county purchased, from persons engaged in the business of making such sales, tangible personal property for storage, use or other consumption in California; that the property so purchased was stored, used or otherwise consumed; that the county failed to make a use tax return on these purchases as required by the Use Tax Act (Stats. 1935, p. 1297 ;

[574]

Deering’s Gen. Laws, 1937, Act 8495a) ; that the State Board of Equalization, pursuant to the terms of this act, audited the accounts and records and determined the amounts due; and that after due notice the county has failed to pay the same or any part thereof. The third count involving the sales taxes, alleges that the county was engaged in the business of selling at retail certain tangible personal property during the period from August 1, 1933, to June 30, 1940; that the county failed to make sales tax returns on these sales; that the hoard has proceeded -to compute the amounts due in accordance with the provisions of the Retail Sales Tax Act of 1933, as amended; (Stats. 1933, ch. 1020, as amended) and that the county has failed, after due notice, to pay.

In its answer, the county admitted that it purchased the property referred to in the first two counts, and alleged that it had used the same in the exercise and performance of its governmental duties and functions. Answering the third count, the county denied that it ever engaged in the business of selling tangible personal property at retail, but admitted that during these years it had made certain sales of tangible personal property on specific dates and for certain amounts in accordance with exhibits which were attached to the answer. Prom this list it appears that the county made some 72 sales during this period, the number per year varying from 6 to 15. The respective selling prices varied from a few dollars to as high as $4,600. The answer admitted the failure to file sales and use tax returns, and the failure to pay any part of the sale or use taxes claimed. The answer also alleged that the county was engaged in no business or transactions which came within the purview of the taxing statutes in question, and further alleged that both of these statutes are unconstitutional, as applied to the county, because an intention to make them so applicable is not expressed in the title of the acts. A demurrer was also filed, as to each count of the complaint, on the ground that there was a failure to allege any presentation of the claims in accordance with the requirements of sections 4075 and 4076 of the Political Code.