Winters v. State Board of Equalization

PEEK, J. By their complaint plaintiffs sought a refund of monies paid defendant board as motor vehicle transportation license tax under the provisions of Revenue and Taxation Code, section 9601 et seq. The defendant’s general demurrer upon the ground that the action was barred by section 10278 of said code, was sustained without leave to amend, and the present appeal followed.

[88]From the record before us it appears without contradiction that plaintiffs are farmers in Yolo County; that during 1945 and 1946, they transported in their own vehicles certain farm produce owned by them; that on December 15, 1947, the defendant board levied a deficiency determination against plaintiffs,- which determination alleged that certain vehicle transportation license tax was due by reason of the hauling of said farm products. Said determination further stated that January 5, 1948, would be the last day upon which said tax so levied could be paid without penalty; that on March 22, 1948, defendant made demand -upon plaintiffs for said tax; that on April 1, 1948, plaintiffs paid under protest the tax so levied together with penalties and interest thereon, and on April 10, 1948, filed their action against the board.

Two contentions are made by appellants. The first will not be considered since it is predicated upon the merits of the controversy, and which by reason of the court’s order sustaining the demurrer are not before us. Therefore only appellants’ second question remains, that the statute in question contravenes article XIII, section 15 of the Constitution of this state.

Section 10278 of the Revenue and Taxation Code in regard to actions for refund of such taxes provides:

“No action may be instituted more than 60 days after the last day prescribed for the payment of the license tax without penalty. Failure to bring suit within the 60 days constitutes a waiver of any demand against this State on account of alleged overpayments. ’ ’

Thus it is apparent that if the 60-day period provided for in said section is valid, March 6, 1948, would terminate the period during which the action could be instituted, and that therefore plaintiffs’ complaint, which was filed on April 10, 1948, would be barred by said section. The applicability of the section to the facts shown by the record before us is not challenged. Plaintiffs’ sole complaint is directed at the validity of said section in view of the provision of article XIII, - section 15 of the Constitution of this state, providing that