Geiger v. Board of Sup'rs of Butte County

• Decision Date: 19 July 1957
• Court: California Supreme Court
• Parties: Gerald M. GEIGER, Petitioner, v. The BOARD OF SUPERVISORS OF BUTTE COUNTY et al., Respondents. Sac. 6796.

Page 545

313 P.2d 545

48 Cal.2d 832

Gerald M. GEIGER, Petitioner, v. The BOARD OF SUPERVISORS OF BUTTE COUNTY et al., Respondents.

Sac. 6796.

Supreme Court of California, In Bank.

July 19, 1957.

Thelen, Marrin, Johnson & Bridges and Edward J. Ruff, San Francisco, for petitioner.

Charles H. Andrews, County Counsel, and Francis R. Crable, Asst. County Counsel, Chico, for respondents.

McDonough & Wehrhaftig, Sacramento, as amici curiae on behalf of respondents.

GIBSON, Chief Justice.

Petitioner seeks a writ of mandate to compel the Board of Supervisors of Butte County to suspend and reconsider an ordinance providing for a sales and use tax and either to repeal the ordinance or submit it to the referendum vote of the electors of the county.

In 1955 the Legislature enacted a uniform local sales and use tax law, hereinafter referred to as the Bradley-Burns Act. Rev. & Tax.Code, §§ 7200-7207. It authorizes a county board of supervisors to adopt an ordinance imposing a one per cent tax on retail sales of tangible personal property and a use tax at the same rate, and it provides that the county must credit against the amount of the county tax the amount of sales and use taxes due to cities under ordinances having substantially the same provisions.

The Butte County ordinance, which became effective on January 1, 1957, levies & sales tax upon retailers at the rate of one per cent of their gross receipts from all tangible personal property sold in the county, and it also imposes a use tax at the same rate. As authorized by the Bradley-Burns Act, the ordinance provides that it shall become inoperative if any city in the county increases the rate of its sales and use tax.

Prior to the effective date of the ordinance, the board was presented with a properly certified petition demanding that the ordinance be forthwith repealed or that it be submitted to the voters of the county. After receiving an opinion of the Attorney General which concluded that the ordinance was not subject to referendum (28 Ops. Atty. Gen., 351), the board refused to comply with the demands of the petition.

Mandamus is a proper remedy to test the propriety of the action of the board of supervisors. The writ is not being used here to enjoin or prevent the collection of a tax (see Rev. & Tax.Code, §§ 6931, 7202, 7203) but, rather, to compel the board to submit an ordinance to referendum, and it is settled that a writ of mandate is available for that purpose. Cf. Blotter v. Farrell, 42 Cal.2d 804, 812-813, 270 P.2d 481; Simpson v. Hite, 36 Cal.2d 125, 222 P.2d 225; Dwyer v. City Council, 200 Cal. 505, 253 P. 932.

The principal question is whether section 1 of article IV of the California Constitution operates to withhold from the voters of a county the right of referendum with respect to tax measures such as those authorized by the Bradley-Burns Act. This section reads, in part, as follows: 'The second power reserved to the people shall be known as the referendum. No act passed by the Legislature shall go into effect until 90 days after the final adjournment of the session of the Legislature which passed such act, except acts calling elections, acts providing for tax levies or appropriations for the usual current expenses of the State, and urgency measures * * *. Upon the presentation to the Secretary of State within 90 days after the final adjournment of the Legislature of a petition * * * signed by qualified electors equal in number to 5 percent of all the votes cast for * * * Governor at the last preceding general election at which a Governor was elected, asking that any act or section or any part of any act of the Legislature be submitted to the electors for their approval or rejection, the Secretary of State shall submit to the electors for their approval or rejection, such act, or section or part of such act * * * and no such act or section or part of such act shall go into effect until and unless approved by a majority of the qualified electors voting thereon * * *. The * * * referendum powers of the people are hereby further reserved to the electors of each county, city and county, city and town of the State to be exercised under such procedure as may be provided by law. * * * Nothing contained in this section shall be construed as affecting or limiting the present or future powers of cities or cities and counties having charters adopted under the provisions of Section 8 of Article XI of this Constitution. * * * This section is self-executing, but legislation may be enacted to facilitate its operation, but in no way limiting or restricting either the provisions of this section or the powers herein reserved.' (Italics added.)

The constitutional provisions which reserve the referendum powers to the people expressly except 'tax levies or appropriations for the usual current expenses of the State.' It is apparent that the same exception applies to the referendum powers reserved to the county electors, and, therefore, the Constitution, standing alone, does not secure to county electors the right of referendum over tax levies or appropriations for the usual current expenses of county government. Cf. Hunt v. Mayor & Council of City of Riverside, 31 Cal.2d 619, 623-624, 191 P.2d 426. The next question is whether the Constitution prohibits the Legislature from granting to county electors the power of referendum over tax measures. It is not disputed that the revenue from the tax in question is to be used for the usual current expenses of the county, and it follows that the ordinance is not subject to referendum unless the Legislature has authority to expand and extend the referendum powers reserved by section 1 of article IV of the Constitution and unless it has exercised that authority. ¹

The listing of exceptions in the Constitution amounts to a declaration of policy against subjecting legislation concerning the excepted matters to a vote of the people. While section 1 of article IV does not expressly prohibit the Legislature from extending the right of referendum to include a county sales tax ordinance, any holding that such measures are subject to referendum would be contrary to this policy and against the clear implication of the constitutional provision. Section 1 is expressly made self-executing, and, in addition, the Legislature is empowered to enact legislation to facilitate its operation. It is obvious, however, that the authorization to adopt procedural regulations does not include the power to enact substantive measures which would extend the scope of the basic referendum right. There is no provision authorizing substantive changes, and we have concluded that it was not intended that the Legislature should have the power to extend or expend the scope of referendum. Our conclusion is further supported by the fact that the framers of section 1 considered it necessary, in order not to restrict the referendary powers of the people in chartered cities, to provide expressly that such powers should not be affected by the constitutional provision.

There is nothing in the Bradley-Burns Act which indicates that the Legislature intended that county sales and use tax ordinances should be subject to referendum, but, to the contrary, both the general plan as embodied in the act and the specific language used in authorizing the adoption of such ordinances show that the Legislature recognized that the Constitution prohibits the use of referendum with respect to this type of county legislation. The act contemplates an intergrated, uniform system of city and county sales and use taxation. The counties are given authority to impose sales and use taxes as a means of raising additional revenue, and the cities are furnished with a plan of state administration which will relieve them from operating collection systems of their own. The taxpayers will receive the benefit of a scheme which will free them from the burden of complying with differing regulations of state and local taxes, avoid the necessity of making payments and reports to several governmental bodies, and permit all auditing to be done by a single agency. The method devised provides for the equitable sharing of revenue by a county and the cities within its boundaries. It is intended that there will be concurrent action by a county and the cities in the county for the purpose of adopting an integrated system of local sales and use taxation, and the city ordinances adopted under the authority of the act are apparently made contingent upon the...