Gowens v. City of Bakersfield

• Decision Date: 13 June 1961
• Citation: 193 Cal.App.2d 79,13 Cal.Rptr. 820
• Court: California Court of Appeals Court of Appeals
• Parties: Roy GOWENS, Plaintiff and Appellant, v. CITY OF BAKERSFIELD, et al., Defendants and Respondents. Civ. 6559.

Page 820

13 Cal.Rptr. 820

193 Cal.App.2d 79

Roy GOWENS, Plaintiff and Appellant, v. CITY OF BAKERSFIELD, et al., Defendants and Respondents.

Civ. 6559.

District Court of Appeal, Fourth District, California.

June 13, 1961.

Hearing Denied Aug. 9, 1961.

Mack, Bianco, King & Eyherabide and H. C. Mack, Jr., Bakersfield, for appellant.

Kenneth W. Hoagland, City Atty., and Tully H. Seymour, Asst. City Atty., Bakersfield, for respondents.

GRIFFIN, Presiding Justice.

Although the order sustaining defendants' demurrer to the amended complaint was signed by Frederick E. Stone, Judge Assigned, the order directing judgment of dismissal of the action with prejudice following that order was signed by Judge R. B. Lambert. The appeal was from this judgment.

On a former appeal, Gowens v. City of Bakersfield, 179 Cal.App.2d 282, 3 Cal.Rptr. 746, this court held portions of ordinance no. 1200, n. s., of the City of Bakersfield unconstitutional, as arbitrary and discriminatory in relation to requiring hotel, motel, etc. owners to collect from transients a tax of a designated per cent of the compensation paid by them for lodging rentals where no attempt was made to segregate the persons paying the tax into any reasonably justifiable subclassification, and where, in providing that all persons obtaining lodging in establishments containing less than five accommodations were completely exempt.

After that decision, the city council, by amendment, adopted emergency ordinance no. 1286, n. s., which provides generally: (1) that a tax be levied on each and every transient equivalent to four per cent of the room rental paid by such transient to any hotel, inn, motel or other place where a charge is made for such lodging; (2) that a transient is defined as any person who obtains lodging in any hotel, etc. for a period of not more than 30 consecutive days; (3) that the owner is required to collect and hold the tax 'in trust'; (4) that a failure to remit the tax subjects the owner to a maximum penalty of 20 per cent of the amount of the tax; and (5) that a fine is levied upon conviction of all persons failing to comply.

Plaintiff again, on this appeal, argues that the amended ordinance is unconstitutional on substantially the same grounds as set forth in the original complaint, that is: (1) the distinction attempted to be drawn between transients and others is arbitrary and unreasonable and not based upon any proper lawful distinction in fact; (2) the ordinance lays a different and higher burden on a portion only of a similar class by taxing the rental of lodging space and exempting all other rentals within the city; (3) the ordinance discriminates against plaintiff and his customers by laying a higher tax burden on the rental of rooms than on other privileges under the city's sales and use tax ordinance; (4) the ordinance unduly deprives plaintiff of his property by tending to drive transients to hotels outside the limits of the city.

First, it is argued that the tax here levied is not a tax on any business, occupation, profession or trade, but is levied on the privilege of an individual to occupy a lodging space in the City of Bakersfield. Plaintiff states that the main question is whether this privilege may be lawfully taxed by the city. Citing California Fireproof Storage Co. v. City of Santa Monica, 206 Cal. 714, 275 P. 527; Security Truck Line v. City of Monterey, 117 Cal.App.2d 441, 256 P.2d 366, 257 P.2d 755. It is conceded by plaintiff that taxing the privilege of engaging in the business of renting rooms to transients has been recognized, and it is claimed the city has already levied a tax by way of a license tax on this and other businesses under the sales and use tax, ordinance no. 681, n. s., section 21, City of Bakersfield. But it is argued that the tax here involved is not levied on the business or for the purpose of engaging in such business, which is a taxable event occurring within the city, but on the right of a transient to occupy a room therein. Plaintiff cites in support of his claim: City of Miami v. Kayfetz, 158 Fla. 758, 30 So.2d 521, 524; Edwards v. Davis, 146 Tenn. 615, 244 S.W. 359, 361; City of Pensacola v. Lawrence, 126 Fla. 830, 171 So. 793; Western Lithograph Co. v. State Bd. of Equalization, 11 Cal.2d 156, 162, 78 P.2d 731, 117 A.L.R. 838; California Fireproof Storage Co. v. City of Santa Monica, supra, 206 Cal. 714, 275 P.2d 527.

On the hearing of the questions presented, as evidenced by the memorandum opinion of the trial judge, he stated that the right to sleep in a particular place under conditions defined by the ordinance does not differ from the right to eat a meal prepared and served at an eating establishment for which a tax is imposed by the California Sales Tax Act (Revenue and Taxation Code, Div. 2, Pt. 1, § 6001 et seq.); that this tax is not considered a tax upon the right to eat, but rather upon the right to eat in a particular place under particular conditions. It should be noted, however, that it has been held that the sales tax is not a levy upon the consumer, even though it is collected by the dealer from the consumer. Western Lithograph Co. v. State Bd. of Equalization, supra, 11 Cal.2d 156, 162, 78 P.2d 731, 117 A.L.R. 838.

In Fox Bakersfield Theatre Corp. v. City of Bakersfield, 36 Cal.2d 136, 222 P.2d 879, it was held that a city may impose a tax on theater admissions, the tax to be collected from the customer. It appears in that case that although the tax purportedly was on the privilege of conducting an amusement business, it is apparent that the measure was directed at the privilege of being a spectator at theaters and other places of amusement. It might well appear then that if a city may tax the privilege of being a spectator it may tax the privilege of occupying a room. The tax is not placed upon the right to sleep, but upon the right to sleep in a particular place under certain conditions defined by the ordinance.

In City of Glendale v. Trondsen, 48 Cal.2d 93, 98, 308 P.2d 1, which involved an ordinance pertaining to an excise tax levied as a garbage collecting charge against 'occupants' of property in Glendale, it was contended that the tax was on the 'occupancy' of property and beyond the power of the city to levy under its charter. It was there held that there was no unjust classification and that it was not a tax on the interest in the property as an occupant or possessor of it and that the tax was valid in the absence of any constitution or charter provision which would invalidate it; that the levy and collection of taxes by a city having a charter under our constitution is a municipal affair and that the power of a municipal corporation operating under freeholder's charter to impose taxes for revenue purposes including license taxes is strictly a municipal affair pursuant to the direct constitutional grant of the people of the state.

City of Miami v. Kayfetz, supra, 158 Fla. 758, 30 So.2d 521, 526, involved a night club admission tax. The ordinance was struck down because the Legislature had not granted to the city the power to tax that type of privilege. However, the case went on to say:

'Our view is that the legislature could lawfully authorize a municipality to levy a tax such as is attempted by this Ordinance on...