Gowens v. City of Bakersfield

• Citation: 179 Cal.App.2d 282,3 Cal.Rptr. 746
• Court: California Court of Appeals
• Decision Date: 28 March 1960
• Parties: Roy GOWENS, Plaintiff and Appellant, v. CITY OF BAKERSFIELD, a municipal corporation, Frank E. Sullivan, Mayor, Kathryn Balfanz, John Philip Bentley, Manuel J. Carnakis, Rev. Henry H. Collins, Ken Croes, Wm. A. Dewire and Don Doolin, as members of the City Council thereof, Defendants and Respondents. Civ. 6054.

Page 746

3 Cal.Rptr. 746

179 Cal.App.2d 282

Roy GOWENS, Plaintiff and Appellant, v. CITY OF BAKERSFIELD, a municipal corporation, Frank E. Sullivan, Mayor, Kathryn Balfanz, John Philip Bentley, Manuel J. Carnakis, Rev. Henry H. Collins, Ken Croes, Wm. A. Dewire and Don Doolin, as members of the City Council thereof, Defendants and Respondents.

Civ. 6054.

District Court of Appeal, Fourth District, California.

March 28, 1960.

Mack, Bianco, King & Eyjherabide, Bakersfield, for appellant.

Charles Carlstroem, City Atty., and Kenneth W. Hoagland, Asst. City Atty., Bakersfield, for respondents.

SHEPARD, Justice.

This is an appeal by plaintiff (appellant herein) from a judgment of dismissal entered after the demurrer of defendants (respondents herein) to plaintiff's complaint was sustained.

In general substance plaintiff's complaint alleges, inter alia, that he is a hotel owner in the city of Bakersfield; that defendants have passed and are threatening to enforce an ordinance requiring him and other hotel owners to collect from transients a tax of 4 per cent of the compensation paid by them for lodging rentals; that under said ordinance a transient is defined as any person who for a period of not more than seven consecutive days hires lodging in any hotel; that a hotel is defined by said ordinance as any lodging place offering lodging for five or more persons for compensation; that a hotel owner is required to collect from the transient, keep a record of, report, and pay such tax to the city tax collector; that failure to pay as required subjects the hotel owner to an assessment against himself of the whole tax and also subjects him to special interest charges, a penalty of 10 per cent and to possible criminal charges and a fine of $25 to $500 upon conviction thereof; that no tax was charged to federal, state or Bakersfield city employees on official business, nor for rentals paid to hospitals, medical clinics or homes for aged people; that the ordinance improperly denies equal protection of the law, lacks uniformity of operation, and damages plaintiff by laying upon plaintiff the duty of collecting an unconstitutional tax and through its operation tending to drive transients to hotels outside the limits of the city. He prays for a decree that the ordinance is unconstitutional and for injunctive relief against its enforcement.

Defendants claim that plaintiff has no standing in court, that he cannot maintain the action because he is not the person taxed and therefore suffers no legal injury. They cite in support of such contention such cases as Fox-Woodsum Lumber Co. v. Bank of America etc. Ass'n, 7 Cal,2d 14, 59 P.2d 1019; In re Nowak, 184 Cal. 701, 195 P. 402; Quong Ham Wah Co. v. Industrial Accident Com., 184 Cal. 26, 192 P. 1021, 12 A.L.R. 1190; Twentieth Century Sporting Club, Inc. v. United States, 34 F. Supp. 1021, 92 Ct.Cl. 93; Bunker Hill Country Club v. United States, 9 F.Supp. 52, 80 Ct.Cl. 375; Engineer's Club of Philadelphia v. United States, 42 F.Supp 182, 95 Ct.Cl. 42; Shannopin Country Club v. Heiner, D.C., 2 F.2d 393; Fox v. Frank, 52 Ohio App. 483, 3 N.E.2d 996; and Ains-worth v. Bryant, 34 Cal.2d 465, 211 P.2d 564. These cases do not support defendants' contention.

The Fox-Woodsum Lumber Co. case was an action to recover from a national bank for alleged losses on securities sold by it without corporation commissioner's permit. The facts showed the losses to have been entirely extraneous to the lack of a permit. The plaintiff therein was not concerned in any way with the alleged discrimination between national and state banks for if the law had been declared unconstitutional (which it was in another case), such holding would not have aided plaintiff in any way. Thus plaintiff therein quite obviously could not be a proper party to challenge constitutionality.

The Nowak case involved classifications of business for excise tax purposes. Those phases of the ordinance which might possibly have involved or affected Nowak's business were fully considered and passed upon. Other matters in no way affecting Nowak were rejected. The Quong Ham Wah Co. case related to discrimination between residents and non-residents of California in workmen's compensation. In upholding the right of plaintiff therein to attack the law's constitutionality, the court discussed the whole matter of such alleged disability in attacking an unconstitutional law and said, inter alia, 184 Cal. at pages 31-32, 192 P. at page 1023:

'The truth of the matter is, however, that a discriminatory law is, equally with the other laws offensive to the Constitution, no law at all. (Citations.) Whatever validity it may be said to possess, it has such validity merely by virtue of the presumption of validity attaching to the acts of the legislative branch of the government. This presumption, being rebuttable, may be attacked by a litigant whenever it is material to his case unless he is prevented from doing so by some special exception. Such exceptions possess no peculiar sanctity, and invest the law with no actual validity; they should naturally be confined by the limits of the reasons which occasioned their adoption, and should give way to considerations of policy paramount to those reasons.'

The Ainsworth case simply does not discuss the point at all. The cases of Twentieth Century Sporting Club, Inc.; Bunker Hill Country Club, Inc.; Engineer's Club of Philadelphia; Shannopin Country Club, and Fox V. Frank, were all cases in which the taxes had already been collected and paid and plaintiffs (who were not the taxpayers involved) sued to recover the tax. Obviously under such conditions the plaintiffs had no interest in the money itself after it...