People v. Lang Transportation Co.

SHENK, J.

The appeals in these eases (consolidated for the purpose of the appeals) are from judgments in favor of the plaintiff in actions to recover highway transportation taxes assessed against the defendants for the years 1928 and 1929. The taxes were assessed by the State'Board of Equalization pursuant to the provisions of section 15 of article XIII of the Constitution and section 3664aa of the Political Code. The actions were commenced in September, 1928, and April, 1930, respectively, and judgments were entered for $30,344.18 for the 1928 tax, and $26,274.69 for the year 1929, the same being five per cent of the defendant’s gross receipts from operations for those years, plus penalties. The defendants are Hike Lang and his son and daughter, Howard and Gene, operating as a partnership under the name of Lang Transportation Company.

The amount of the 1929 tax was ascertained by the board from a report of its auditor gleaned from the defendants’

[168]

report to the board of their 1928 revenue and from the records of the business of the defendants for that year. The tax for 1928, which normally would be based on the revenues for 1927, was arbitrarily assessed for the reason that the defendants made no report to the board of the revenues of that year and the complete records of the defendants for that year were not available. In making up his report the auditor of the board proceeded in substantially the same manner as that described in the opinion in the case of

People

v.

Duntley,

(L. A. No. 13384)

ante,

p. 150 [17 Pac. (2d) 715]), this day decided. The certified copy of the assessment-rolls and the report of the auditor, having been received in evidence as a

prima facie

case for the plaintiff, the defendants introduced evidence in support of their claims that their transportation business was that of a contract carrier and that none of their business was carried on between fixed termini or over a regular route. The trial court found in effect that the defendants were operating as common carriers between fixed termini or over a regular route and entered the judgments appealed from.