Home Telephone & Telegraph Co. v. City of Los Angeles

JAMES, J.

This appeal is taken by the defendant city of Los Angeles and certain of its officers from a judgment entered in favor of the plaintiff. The judgment was for the return of certain fees paid as a license for the conducting of a telephone business within the city of Los Angeles. It was admitted that under an amendment to the constitution of the state, adopted in November, 1910 (sec. 14, art. XIII), the municipality had no power to exact a license tax from the plaintiff, and that its ordinance attempting so to do was void. The ordinance under which the claim for license tax was made against the plaintiff provided that telephone companies should pay a license tax

monthly;

that any tax remaining unpaid for

[494]

a period of ten days should have added a penalty of ten per cent; that “any person, firm, or corporation” violating any of the provisions of the ordinance should be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by. a fine of not less than five dollars nor more than two hundred dollars, or by imprisonment in the city jail for a period of not more than one hundred days, or by both such fine and imprisonment; and that “each such person, firm, or corporation shall be deemed guilty of a separate offense for every day during any portion of which any violation of any provision of this ordinance is committed, continued or permitted. ...” There was testimony heard by the trial judge on behalf of the plaintiff showing that the secretary of the latter had had interviews with the tax and license collector, whose duty it was to enforce the terms of the license ordinance, and that it was orally called to the attention of the collector during these conversations that the constitution had been amended, and the officer of the plaintiff inquired if the city attorney had not advised them regarding the noncolleetion of the license tax, and that the tax collector had answered, “No”—that “they were going right ahead with the operation of it, and that we would have to pay up or they would have to enforce the penalties.” Further conversation was had to the same effect, the tax collector’s office insisting upon payment of the tax; whereupon the tax was paid by the plaintiff, the payments being accompanied by a written notice of protest. The secretary of the plaintiff corporation testified that he feared proceedings of arrest if payment was not made. He testified further: “My recollection was that in the interview that we had in the tax and license collector’s office, the general statement was made, ‘You know the provisions of the ordinance, and if you fail to comply with them you or somebody will have to be arrested under the provisions of the ordinance. ’ And practically every time we paid afterward there was an argument because we did not think it was a proper charge to be made, and thought it was illegally made. While I can’t point to specific instances, I might say that we practically had an argument every time the payment was made right from January on, and even back of that.”