Consolidated Rock Products Co. v. Carter

DORAN, J. This is an appeal by plaintiff from a judgment entered following an order sustaining the defendants’ demurrer without leave to amend. Leave to amend was not requested.

The action was brought to restrain officers of the Department of Motor Vehicles from seizing and selling nine motor vehicles, referred to by respondents as transit-mix trucks, for delinquent 1942 motor vehicle license fees. The fees in question are those provided for in the Vehicle License Fee Act (Stats. 1935, Chap. 362, p. 1312, as amended; Deering’s Gen. Laws, 1939 Supp., Act 5135). The pertinent part of section 2 thereof is as follows: “A license fee is hereby imposed for the privilege of operating in this State any vehicle of a type subject to registration under the Vehicle Code. The annual amount of such license fee shall be a sum equal to one and three-quarters per cent of the actual market value of such vehicle, as determined by the department. The department annually shall compile and publish a list showing the market values as determined by it of each class of vehicles subject to the license fee hereby imposed, such vehicles being classified by make, type and date first sold. In computing the amount of the license fee, the department shall include the actual market value of alterations and additions made to the chassis, engines or bodies of such vehicles.”

The action is based on the following facts as alleged in the complaint and admitted by the demurrer. “Plaintiff is engaged in the rock, sand and gravel business in and around Los Angeles county, California; a substantial part of plaintiff’s business is the processing and selling' of ready mixed concrete; for use in processing and selling ready mixed concrete plaintiff has in its possession, along with other equipment, nine motor trucks upon which are mounted portable cement mixers; the said portable cement mixers contain their [521]own power unit and are entirely separate from and independent of the said motor trucks and are attached to the said motor trucks by bolts holding the said portable cement mixers to the chassis of the said trucks; the said portable cement mixers can be removed from the chassis quite easily and speedily and without in any way injuring the said portable cement mixers or the said chassis, and, in fact, the said portable cement mixers frequently are removed from the said chassis for repairs and frequently are replaced upon a different chassis; the said portable cement mixers can be placed upon the chassis of any modern truck; the said mixers are used for mixing concrete while it is being transported from a central storage place for the ingredients to the particular job where the concrete is being poured and during the waiting period at the particular job before the concrete is poured; and that the said portable cement mixers can be dismounted from the said chassis and satisfactorily used as a stationary cement mixer. Attached hereto as Exhibit ‘A’ and made a part hereof by this reference thereto is a full, true and accurate reproduction of a photograph of one of the said motor trucks with one of the said portable cement mixers mounted on the chassis thereof.