Opinion
Rehearing Denied Nov. 30, 1970.
Hearing Granted Dec. 30, 1970.
Opinion on pages 689 to 703 omitted
HEARING GRANTED
[90 Cal.Rptr. 904]Sandler & Rosen and Gerald G. Wolfson, Los Angeles, for plaintiffs-appellants.
Roger Arnebergh, City Atty., James A. Doherty, Asst. City Atty., and Thomas C. Bonaventura, Deputy City Atty., for defendant-respondent.
GUSTAFSON, Associate Justice.
Section 21.03 of the Los Angeles Municipal Code provides that 'a business tax must be paid by every person engaged in any of the businesses or occupations specified in Sections 21.50 to 21.198' of the Code. "Business Tax' shall mean the privilege tax imposed upon persons engaged in the businesses or occupations described in Sections 21.50 to 21.198 * * * for the privilege of engaging in such businesses or occupations within the City of Los Angeles.' (Los Angeles Municipal Code, § 21.00.) Two of the businesses or occupations listed are 'selling any goods, wares or merchandise at wholesale' and 'selling any goods, wares or merchandise at retail.' (Los Angeles Municipal Code, 21.166, 21.167.)
The City of Los Angeles assessed taxes for the years 1963 through 1967 against Volkswagen Pacific, Inc. (hereinafter referred to as the Volkswagen distributor), and Porsche Car Distributors, Inc. (hereinafter referred to as the Porsche distributor). [90 Cal.Rptr. 905]All of the taxes, penalties and interest were paid. On April 27, 1967, the Volkswagen distributor and the Porsche distributor brought this suit against the City of Los Angeles.
The first cause of action in the complaint sought a refund of some of the amount paid. The complaint alleged that with respect to the rest of the amount paid, the distributors were unable to file claims for refund with the City of Los Angeles because such claims must be filed on forms provided by the City Clerk and the City Clerk had failed to furnish the requested forms. The second cause of action is therefore in the form of a request for a declaration of the rights and duties of the parties as to the remaining amount paid by the distributors.
Before the case came to trial, claims for refunds for all of the amount paid had been filed with and rejected by the City of Los Angeles. Although the complaint was not amended, the parties proceeded as though the only relief sought by the distributors was a money judgment for a refund of all of the amount paid. The judgment of November 12, 1969, from which the distributors appeal does not declare the rights and duties of the parties, but states merely 'that plaintiffs take nothing by their complaint.' No attack is made on appeal on the form of the judgment and we therfore treat the case as though it involved only a complaint for the refund of all taxes, penalties and interest paid by the respective distributors.
The case was submitted to the trial court solely on a lengthy stipulation of facts. Our task, therefore, is to determine whether those facts entitled either distrigbutor to any relief.
Taxability of Distributors' Activities
For the purpose of the discussion of this point, we put adide for the moment the federal Imprt-Export Clause and Commerce Clause problems and consider the situation as though the plaintiff distributors were engaged solely in intrastate commerce.
Volkswagen retail dealers in the City of Los Angeles purchase automobiles and parts from the Volkswagen distributor and Porsche retail dealers in the City of Los Angeles purchase automobiles and parts from the Porsche distributor. All sales are consummated in the City of Culver City where the offices of the Volkswagen distributor and the Porsche distributor are located. Each distributor has personnel described as sales managers, zone operations managers, service representatives, parts representatives and sales trainers who call upon the retail dealers in the City of Los Angeles for the purpose of aiding the dealers in their operations. The activities of these personnel within the City of Los Angeles provide the basis upon which the City of Los Angeles claims that the distributors are liable for the business license tax.
The primary business of each distributor is to sell automobiles and parts to the retail dealers. The taxable occupation under sections 21.166 and 21.167 of the Los Angeles Municipal Code is 'selling.' It was once arguable that 'selling' was intended to be limited to entering into a sales agreement. That view was rejected in City of Los Angeles v. Belridge Oil Co. (1954) 42 Cal.2d 823, 271 P.2d 5 where, although all of the sales agreements were entered into in the City of Los Angeles, 'selling activities' preliminary to each actual agreement of sale occurred outside of the city. The court said: 'Gross receipts attributable to selling activities conducted outside the city should not be included. Such a construction necessarily follows from the fact that the business license tax is on the privilege of engaging in selling activities in the City of Los Angeles and as such should only be based upon such activities.' Upon retrial it was found that all of the gross receipts were 'attibutable in part to [the seller's] selling activities in the City of Los Angeles and in part to its selling activities without the City' and that 20 percent of the gross receipts was attributable to the selling [90 Cal.Rptr. 906]activities in the City of Los Angeles. The tax was therefore held to be measured by 20 percent of the seller's gross receipts. (City of Los Angeles v. Belridge Oil Co. (1957) 48 Cal.2d 320, 309 P.2d 417.)
The City Clerk of the City of Los Angeles, being empowered to make rules for 'apportionment according to the amount of business done in the City of Los Angeles' (Los Angeles Municipal Code, § 21.15(h)), promulgated Ruling Mo. 13 and Ruling No. 14 in direct response to the Belridge decisions. In Ruling No. 14 it is expressly acknowledged that 'only those gross receipts which are directly attributable to the business engaged in within the City of Los Angeles shall be included on the measure of the tax' and that 'those receipts which are specified by Ruling 13 for inclusion in the measure of the tax shall be considered directly attributable to the business engaged in within the City of Los Angeles.' Ruling No. 13 provides that a person (such as each distributor here) who does not maintain a place of business within the City of Los Angeles 'shall nevertheless be deemed to be engaged in business within the City when * * * he carries on within the City of Los Angeles substantial activities in connection with the conduct of his business.' If there are substantial activities 'designed to promote, stimulate or otherwise benefit his business,' he is engaged in business within the City of Los Angeles if as a result of the activities 'he ships or causes personal property to be shipped into the City of Los Angeles.'
1] The distributors argue that the activities of their personnel within the City of Los Angeles are not 'substantial activities in connection with the conduct of [their] business' because they are distributors for several states and the sales to Los Angeles dealers represent only a small fraction of all of the sales made by the distributors. We think it is clear that 'substantial activities' are not measured with reference to all of the activities engaged in by the taxpayer. Rather, the terms refer to what is done in the City of Los Angeles compared to what is done elsewhere as to the sales which result to Los Angeles dealers.
2] The distibutors also seek to dismiss the activities of their personnel within the City of Los Angeles as inconsequential because the activities 'are not carried on for the purpose of inducing the dealers to order automobiles or parts from' the distributors. The distributors answer their own contention in another part of their brief when they claim that if they withdraw 'from their Los Angeles activities their businesses would suffer substantially and eventually [the distributors] would have to discontinue business entirely insofar as the City of Los Angeles would be concerned.'
We therefore conclude that the activities of the personnel of the distributors within the City of Los Angeles qualify as 'selling activities' subjecting the distributors to the business license tax.
Measure of the Tax
3] Where a state levies a tax for the privilege of engaging in business activities measured by the gross receipts of the taxpayer produced by business activities both within and without the state, the taxpayer is exposed 'to multiple tax burdens' if the tax is 'not apportioned to the activities carried on within the state.' (Gwin, White & Prince v. Henneford (1939) 305 U.S. 434, 59 S.Ct. 325, 83 L.Ed. 272.) The same principle has been applied to the exposure to multiple tax burdens of one doing intercity business. In City of Los Angeles v. Belridge Oil Co. (1957) 48 Cal.2d 320, 309 P.2d 417 the City of Los Angeles contended with respect to the very sections here in question that where all sales are made in the City of Los Angeles even though part of the 'selling activities' occurred outside the city, there should be no apportionment. The California Supreme Court rejected this argument holding 'that the requirements of due process and equal protection * * * compel an apportionment of receipts attributable to the business carried [90 Cal.Rptr. 907]on within the city.' We think this remains good law.
In Carnation Company v. City of Los Angeles (1966) 65 Cal.2d 36, 52 Cal.Rptr. 225, 416 P.2d 129 the taxpayer did all of its manufacturing within the City of Los Angeles, but made only part of its sales there. A tax on the oeeupation of 'manufacturing and selling' measured by the gross receipts of all sales including those without the city was held applicable to the taxpayer because the manufacturing activity alone sufficed to give the city power to tax. Since the manufacturing was done only within the city, no other city could have taxed the manufacturing. Curiously enough, the court nonetheless mentioned the 'possibility of multiple taxation,' but dismissed the matter with the casual observation that this problem was for 'the proper legislative body.'
4] The facts before the trial court in the case at bench show that the City of Culver City has a business license tax applicable to each distributor and measured by the gross receipts from sales to Los Angeles dealers which measure is the same as that used by the City of Los Angeles. Obviously, the distributors are thereby subject to multiple tax burdens. Neither the City of Culver City nor the City of Los Angeles is entitled to measure its tax by the full amount of gross receipts on sales to Los Angeles dealers.
It was the distributors' burden, however, to prove the extent to which less than all of the gross receipts on sales to Los Angeles dealers should be eliminated as a measure of the tax. This the distributors did not do. Apart from the fact that the sales technically occurred in Culver City, the record does not disclose what selling activity occurred in Culver City or elsewhere outside the City of Los Angeles with respect to the sales made to dealers in the City of Los Angeles. It was not incumbent upon the trial court to call for evidence which the distributors should have produced. The distributors not having furnished the trial court with sufficient facts to make an apportionment, it was not error for the taial court to refuse to make any apportionment.
We judicially notice the fact that the City of Los Angeles in August raised the rate of the tax on 'selling activities' to raise an additional $5,500,000 of revenue each year. In the never-ending search for additional revenues, there is no reason to believe that every city will not employ all of the taxing powers available to it. To force a taxpayer to resort to court to seek a proper apportionment when he is subject to multiple taxation imposes an undue burden upon the taxpayer. The observations of Professor Sho Sato are pertinent: 'If the cities were required to adopt uniform taxes upon intercity business and local competing business measured by the amount of business done, the burden upon intercity business would be alleviated to a great extent. * * * Perhaps the time has come for the legislature to investigate this problem with a view to requiring a uniform business tax provision.' (Sato, Municipal Occupation Taxes in California: The Authority to Levy Taxes and the Burden on Intrastate Commerce (1965) 53 Cal.L.Rev. 801.)
Import-Export Clause
'No State shall, without the Consent of the Congress, lay any Impost or Duties on Imports or Exports, except what may be absolutely necessary for executing its Inspection Laws. * * *' (U.S.Const., art. I, § 10.) This is commonly referred to as the 'Import-Export Clause.'
The language of the Import-Export Clause seems not to preclude a local nondiscriminatory tax on goods or an act which is levied without regard to whether the goods are imported or the act is done with respect to imported goods. However, it was early held that the language is not to be so construed and that a tax 'on the occupation of an importer' is prohibited by the Import-Export Clause. (Brown v. State of Maryland (1827) 25 U.S. 419, 12 Wheat. 419, 6 L.Ed. 678.) The necessary implication of Richfield Oil Corp. v. State [90 Cal.Rptr. 908]Board of Equalization (1946) 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80, is that a tax on the sale of imports by the importer is among those taxes proscribed by the Import-Export Clause. The general rule concerning the immunity of imports from taxation is that the 'immunity survives their arrival in this country and continues until they are sold, removed from the original package, or put to the use for which they are imported.' (Hooven & Allison Co. v. Evatt (1945) 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252.)
The general rule is difficult to apply in a given case because of decisions of the United States Supreme Court which have been described by Mr. Justice Frankfurter as 'a confusing series of conflicting cases amidst which the States must blindly move in determining the extent of their constitutional power to tax.' (Youngstown Sheet and Tube Company v. Bowers (1959) 358 U.S. 534, 79 S.Ct. 383, 3 L.Ed.2d 490.)
1. Porsche Distributor
The German manufacturer of Porsche automobiles and parts has a written contract with the Porsche distributor which requires that the Porsche distributor pay for the automobiles and parts ordered from the German manufacturer no later than when they 'are ready for shipment.' The Porsche distributor orders automobiles and parts from the German manufacturer according to the needs of the various retail dealers who have contracts with the Porsche distributor. From the moment a ship leaves Germany bound for Los Angeles with Porsche automobiles and parts, the German manufacturer is relieved of the resk of loss and of all other responsibilities in connection with the goods.
But for the activities of the Volkswagen distributor, it would be undeniable that the Porsche distributor is the importer of the automobiles and parts. However, the Volkswagen disributor is a corporation with sharehlolders and officers identical to those of the separate corporation which is the Porsche distributor. The Volkswagen distributor has a much larger volume of business than the Porsche distributor. The Posche distributor operates out of the premises of the Volkswagen distributor in Culver City and pays rents to the Volkswagen distributor. Whether because the Volkswagen distributor has more experience and trained personnel or because of some other reason undisclosed by the record, the Volkswagen distributor acts as the importer of record for the Porsche automobiles and parts. The Volkswagen distributor pays the German manufacturer, arranges for insurance on shipments from Germany to Los Angeles, deals with the customs broker, pays the federal excise taxes and federal customs duties and arranges for delivery of the automobiles and parts upon their arrival in Los Angeles. All of the actual costs incurred by the Volkswagen distributor are reimbursed to it by the Porsche distributor. For all of the service which the Volkswagen distributor renders in handling the imports, the Porsche distributor pays the Volkswagen distributor $75 per automobile.
Hooven & Allison Co. v. Evatt (1945) 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252, presented the question of who 'was the importer in the constitutional sense' for purposes of the Import-Export Clause. There a purchase of foreign goods was made from the foreign supplier through an American broker who paid the customs duties and who received the purchase price from the purchaser. Despite all the activity of the American broker, the United States Supreme Court rejected the claim that the broker was the importer because 'the inducing and efficient cause of bringing the merchandise into the country' was the contract of purchase. The court said: 'When the merchandise is brought from another country to this, the extent of its immunity from state taxation turns on the essential nature of the transaction, considered in the light of the constitutional purpose, and not on the formalities with which the importation is conducted or on the technical procedures by which it is effected.' [90 Cal.Rptr. 909]Waring v. City of Mobile (1869) 75 U.S. 110, 8 Wall. 110, 19 L.Ed. 342 was distinguished as a case in which the purchaser claiming the status of an importer purchased merchandise shipped by a foreign producer to an American consignee 'after its shipment from abroad.' (Italics added.) The court said that 'it is clear that the purchaser was not the cause of the importation' because the merchandise was destined to arrive in this country regardless of whether anyone purchased it during transit.
5] The City of Los Angeles admits that the Porsche automobiles and parts are imports protected by the Import-Export Clause, but claims, as the trial court found, that the Volkswagen distributor is the importer. We cannot sustain that claim on the record before us. The Volkswagen distributor was not in the business of selling Porsche automobiles and parts to retail dealers. The Porsche distributor was. The Volkswagen distributor did not have a contract with the German manufacturer for purchasing Porsche automobiles and parts. The Porsche distributor did. The Volkswagen distributor did not order Porsche automobiles and parts from the German manufacturer. The Porsche distributor did. We think that the Volkswagen distributor was no more than an agent for the Porsche distributor for handling the importation technicalities. The Porsche distributor 'was the importer in the constitutional sense.'
6] This conclusion does not supply the answer to whether the Porsche distributor was subject to the City of Los Angeles business license tax. The tax immunity under the Import-Export Clause ceases when imports are removed from the original package. This raises the question of what constitutes the original package with respect to the Porsche automobiles and parts.
7] The parts are packaged separately in Germany and the packages are placed within a 'sea van.' A sea van is a large rectangular container which is loaded on a truck for transportation to the ship, transferred from the truck to the ship, transported by the ship to this country, unloaded from the ship to a truck and transported by a truck to the Porsche distributor's warehouse in the City of Culver City. There the sea van is opened, the separate packages are removed and the sea van is returned for further use. Several sea vans comprise each shipment of parts.
We think that F. May & Company v. New Orleans (1900) 178 U.S. 496, 20 S.Ct. 976, 44 L.Ed. 1165, compels the conclusion that a sea van is an original package. There the court said: 'In our judgment, the 'original package' in the present case was the box or case in which the goods imported were shipped, and when the box or case was opened for the sale or delivery of the separate parcels contained in it, each parcel of the goods lost its distinctive character as an import and became property subject to taxation by the state as other like properties situated within its limits.'
, 9] A more difficult problem exists with respect to the automobiles. An automobile is not shipped in a package, crate or box. It was recognized in Brown v. State of Maryland (1827) 25 U.S. 419, 12 Wheat. 419, 6 L.Ed. 678 that where an article is not contained in a package, its immunity under the Import-Export Clause depends upon whether it remains 'in the original form * * * in which it was imported.' Each Porsche automobile arrived in this country in the condition in which it was shipped from Germany. But the aggregation of automobiles contained in one shipment does not remain intact on arrival in this country because some are delivered directly to retail dealers and others are put in storage. In E. J. Stanton & Sons v. County of Los Angeles (1947) 78 Cal.App.2d 181, 177 P.2d 804, certiorari denied, 332 U.S. 766, 68 S.Ct. 75, 92 L.Ed. 352, pieces of lumber were shipped from abroad without being packaged individually or as a group. The lumber was transported from the ship to the taxpayer's storage yard. This court held that the moment one piece [90 Cal.Rptr. 910]of lumber was sold, the remaining pieces lost their tax immunity under the Import-Export Clause. The court rejected the argument 'that each plank was an original package because it bore individual markings which made it distinguishable 'as original packages of import." Instead, it held that the immunity extends only to the 'aggregation of goods put up in whatever form and as a unit transported from a foreign land to our shores.' Using the illustration of threshing machines, the court said: 'Although they might arrive at the dock without cover, nevertheless a shipment of such articles constitutes the original form or the original package.' Since it has been said that E. J. Stanton & Sons 'undoubtedly represents the law applicable to a situation where packaging is inherently impossible or impracticable' (Simon v. County of Los Angeles (1956) 141 Cal.App.2d 74, 296 P.2d 381, we fail to perceive why the entire shipment of unpackaged automobiles is not the 'original form' which disappeared when the first automobile was delivered from the dock to a retail dealer.
The record does not reveal at what point in time with relation to the arrival in this country of a shipment of automobiles and parts the Porsche distributor made sales to its retail dealers. We therefore expressly refrain from expressing any opinion about the validity of using as a measure of the occupation tax the gross receipts of a sale made before the sold merchandise arrived in this country.
2. Volkswagen Distributor
For the reasons stated above with respect to the Porsche distributor, even if the Volkswagen distributor were the importer in the constitutional sense the tax immunity under the Import-Export Clause ceases when the aggregate of the shipment of Volkswagen automobiles no longer remains intact and when the Volkswagen parts are removed from the sea vans.
Additionally, as the City of Los Angeles urges and as the trial court found, the Volkswagen distributor is not the importer in the constitutional sense. The Volkswagen distributor does not deal with the Gerwman manufacturer, but rather with Volkswagen of America, Inc., a New Jersey corporation which is wholly owned by the German manufacturer and which serves as its sales agent in the United States. The Volkswagen distributor has a contract with Volkswagen of America pursuant to which the Volkswagen distributor buys from Volkswagen of America automobiles and parts. The Volkswagen distributor orders its automobiles and part from Volkswagen of America, not from the German manufacturer. Upon arrival of the automobiles and parts in Los Angeles, the Volkswagen distributor pays Volkswagen of America.
The Volkswagen distributor claims that it is the importer in the constitutional sense because the automobiles and parts 'would never leave Germany if not first contracted for by' the Volkswagen distributor. Reliance is placed on Hooven & Allison Co. v. Evatt (1945) 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252 where the court found that the 'contracts of purchase are the inducing and efficient cause of bringing the merchandise into the country.' That case, however, is readily distinguishable. There the contracts of purchase were with the foreign suppliers although signed by American brokers 'for account of' the foreign suppliers. The court emphasized that upon the signing of each contract, the foreign supplier became obligated to ship the merchandise to the American purchaser.
In the case at bench the German manufacturer never becomes obligated to the Volkswagen distributor. It is Volkswagen of America which becomes obligated to the Volkswagen distributor. The Volkswagen distributor emphasizes that it was stipulated that Volkswagen of America is the sales agent for the German manufacturer. However, the record makes clear that Volkswagen of America does not sign the purchase contracts as agent for the German manufacturer, but rather as the seller. It is obvious that if Volkswagen of America, by reason of willful breach of contract or otherwise, [90 Cal.Rptr. 911]does not order automobiles and parts from the German manufacturer, the automobiles and parts would not be shipped to the Volkswagen distributor.
The fallacy of ignoring the part played by Volkswagen of America is easily illustrated. A customer, for example, orders a particular type and style of Volkswagen automobile from a California retail dealer. The dealer orders that automobile from the Volkswagen distributor. The Volkswagen distributor orders that automobile from Volkswagen of American. Volkswagen of America orders that automobile from the German manufacturer. In the broad sense of the term, the Volkswagen distributor is the 'sales agent' for Volkswagen of America. The Volkswagen retail dealer is the 'sales agent' for the Volkswagen distributor. The 'inducing and efficient cause of bringing the merchandise into the country' is the order from the customer. By this reasoning the automobile would reach the customer free of any local sales or other tax. We are confident that Hooven & Allison Co. v. Evatt (1945) 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252 does not stand for that proposition.
Commerce Clause
The 'Congress shall have Power * * * To regulate Commerce with foreign Nations, and among the several States. * * *' (U.S. Const., art. I, § 8.) This is commonly known as the 'Commerce Clause.' As has often been observed, the Commerce Clause does not expressly forbid local taxes, but it has been interpreted by the United States Supreme Court as forbidding local taxes on one engaged in interstate or foreign commerce where the effect would be to unduly burden that commerce. 'A careful analysis of the cases in this field teaches that the validity of the tax rests upon whether the State is exacting a constitutionally fair demand for that aspect of interstate [or foreign] commerce to which it bears a special relation.' (General Motors Corporation v. Washington (1964) 377 U.S. 436, 84 S.Ct. 1564, 12 L.Ed.2d 430.) In that case General Motors Corporation, admittedly engaged in interstate commerce, had within the State of Washington district managers, zone managers and other personnel to insure that local retail dealers would get good service on their orders. The activities of these persons on behlf of General Motors Corporation were held to be local incidents sufficient to form the basis for the levy of a tax upon General Motors Corporation for the privilege of engaging in business activities within the state measured by the gross receipts of sales made to dealers within the state.
-12] The distributors seek to distinguish the General Motors Corporation case on the basis that the distributors do not maintain an office in the City of Los Angeles, that their employees are not residents of or principally employed in the City of Los Angeles and that they do not maintain a parts warehouse in the City of Los Angeles. The difficulty with this approach is that it treats the City of Los Angeles as though it were a state. If the State of California could constitutionally impose the tax here involved (as the General Motors Corporation case holds that it may), it is immaterial that the tax is imposed by one or more of its political subdivisions. No Commerce Clause problem exists. As heretofore mentioned, the problem which exists by reason of duplicate taxation by the City of Culver City and the City of Los Angeles is to be resolved under the doctrine of City of Los Angeles v. Belridge Oil Co. (1957) 48 Cal.2d 320, 309 P.2d 417 'that the requirements of dueprocess and equal protection * * * compel an apportionment of receipts attributable to the business carried on within [each] city.'
Penalty Assessment
13] 'If the City Clerk determines that the nonpayment of any tax due * * * is due to negligence or wilful disregard of the provisions of' the business license tax ordinance, a penalty of ten percent of the amount of the tax is added. (Los Angeles [90 Cal.Rptr. 912]Municipal Code, § 21.05.) The distributors here claim that this penalty should not have been invoked on their late payments because they were contesting the applicability of the tax to them and their counsel 'understood' that no penalties would be invoked. But the distributors were aware that the City of Los Angeles claimed that the tax was due and their course to avoid penalty should have been to pay the tax within the time prescribe. The penalty was properly invoked. (City of Los Angeles v. Moore Business Forms, Inc. (1966) 247 Cal.App.2d 353, 55 Cal.Rptr. 820.)
Statute of Limitations
14] Because we find that neither distributor carried its burden of proving that it was entitled to a refund of taxes in a given amount, it is unnecessary to decide whether the action was timely filed.
The parties rely upon different sections of the Code of Civil I'rocedure. It would seem that the applicable statute of limitations is section 946.6 of the Government Code. Even if the Charter of the City of Los Angeles is deemed a 'statute' (cf. Wilson v. Beville (1957) 47 Cal.2d 852, 306 P.2d 789) which governs the procedure for a claim for refund of taxes (Gov.Code, § 905), the time within which an action must be brought is nevertheless governed by section 945.6 of the Government Code. (Gov.Code, § 935.)
LILLIE, Acting P. J., and THOMPSON, J., concur.