People v. Herbert's of Los Angeles, Inc.

The “Retail Sales Tax Act of 1933” is a statute approved July 31, 1933, and which was to “take effect immediately”. (Stats. 1933, p. 2599; Leering’s 1933 Supplement, Act 8493, p. 2359.) This action was brought by the state to enforce the payment of taxes claimed under the provisions of that act. Defendant Bngleman appeals from the judgment, which was entered against him upon his failure to answer after the court had overruled his demurrer to the plaintiff’s complaint.

Appellant makes the following statement of the question involved in his appeal: “If a cafe operator, having enjoyed a retail sales business producing gross receipts of a certain volume, fails to pay a tax of two and one-half per cent thereon, under chapter 1020 of Statutes of 1933, and thereafter executes a common law assignment for the benefit of creditors, what preference, if any, shall be given the tax, and is such tax the basis for impressing a lien upon property in the hands of the assignee?”

Appellant rests his ease first upon the proposition that the exaction imposed by the sales tax is not upon the retailer but upon the consumer. He admits that the other points made by him on this appeal are corollaries of…