Mt. Tamalpais & Muir Woods Railway v. Johnson

NOURSE, P. J. Plaintiff sued the state for taxes paid under protest for the taxable year 1930-1931, and the defendant had judgment. For many years prior to 1930 the plaintiff had operated a sight-seeing railroad carrying tourists to Mt. Tamalpais and to Muir Woods. On December 6, 1917, the railroad commission authorized plaintiff to discontinue its operations each year during the months of November, December, January and February because the winter rains made the tracks dangerous for passenger traffic. On February 28, 1930, an order was made continuing the suspension of service to March 15, 1930. On August 7, 1930, the railroad commission authorized the complete abandonment of the railroad. Thus, when a tax of $2,715.02 was levied on the first Monday in March, 1930, covering the gross income for the year 1929 the railroad was not in actual use although the company still possessed all its properties such as rights of way and rolling stock, and it had not then been permanently abandoned. And, because the railway company and the taxing authorities then treated these properties as “operative” no local or ad valorem tax was levied upon them for that taxing period. The trial court held for the state on the grounds that the tax was valid on the first Monday in March because the railroad at that time was only temporarily abandoned and was in the same state as it had been for four months of every year since 1917.

Plaintiff contends that it ceased to be an operative railroad on October 31, 1929, and that there is no provision in the Constitution or code for taxation of railroads deemed operative “in law” or otherwise than in actual operation. It argues that the fact that the directors were uncertain on March 3, 1930, whether or not operation was to be resumed is immaterial because the permanent nature of the suspension is shown by the fact that operation was not resumed. The actual character (temporary or permanent^ of the railroad is declared to be the only basis for determining its taxable status, making the orders of the railroad commission of no consequence; and the final order of August 7, 1930, is relied on by plaintiff as proving the permanence of the abandonment.

The cause was tried before the court sitting without a jury and, in support of the judgment for the defendant, the [388]learned trial judge prepared and filed a written opinion which fully covers all the issues tried and which we adopt as the opinion of the court. It reads as follows:

“The agreed statement shows that on December 6, 1917, the Bailroad Commission authorized the discontinuance of operation of plaintiff’s railroad each year during the months of November, December, January and February until further order and that on February 28, 1930, an order was made continuing the suspension of service to March 15, 1930. On the first Monday in March of 1930, therefore, and at the time its Beport was filed with the Board of Equalization, the plaintiff was under a temporary suspension only. As I view the case, the situation as of the first Monday in March is not only controlling but it is all that is material to a determination of this question. The tax was either valid or invalid as of that time, and if valid the plaintiff cannot prevail.