Southern Pacific Transportation Co. v. State Board of Equalization

Opinion

—Southern Pacific Transportation Company and its California railroad subsidiaries (Southern Pacific) appeal from a judgment dismissing an action against 355 counties and cities to recover property taxes. Revenue and Taxation Code section 5147 provides that such an action must be dismissed “unless the summons shall have been issued and served and the return thereon made within one year after the commencement of said action, except where the parties have filed a stipulation in writing that the time may be extended.” No return of summons was made in this case within one year after commencement. The trial court dismissed the action against all of the defendants for this failure. We will reverse the judgment as to most of the defendants on the ground they stipulated that the time was extended or are estopped to raise the issue. We will affirm the judgment as to the County of Inyo and all cities located therein on the ground they did not so stipulate and are not estopped. In the published portion of this opinion^[1] we will hold that the City of Montague made a general appearance following service of process which waives return of process and renders further compliance with section 5147 unnecessary.

Facts^[1]

Discussion

I-II^[1]

III

This action was filed in Sacramento Superior Court on June 20, 1979, seeking recovery of property taxes paid for tax years 1974-1975,

The rule in Ford Motor Co. seeks support in the contrast between the language used in former section 581a and section 5147. It says: “It is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded. (Bott v. American Hydrocarbon Corporation (5th Cir. 1972) 458 F.2d 229 , 233; City of Burbank v. General Electric Company (9th Cir. 1964) 329 F.2d 825 , 832; 2A Sands, Sutherland Stat. Const. (4th ed. 1973) Intrinsic Aids, § 47.38, p. 173.)” (Ford Motor Co., supra, 145 Cal.App.3d at pp. 691-692.) However, the authorities cited refer to the inference afforded when usage differs within a single enactment. In such a case the different usages come before the Legislature together. The strength of the inference that the discrepancy is significant largely depends upon this simultaneity. That different usages occur in statutes developed in separate enactments is of little significance per se.

Ford Motor Co. also draws meaning from the amendment of Assembly Bill No. 1985 (1975-1976 Reg. Sess.) during its passage which it claims deleted from section 5147 a proviso that excepted a general appearance. The deletion of a provision from a bill is often judicially taken as a legislative policy choice. (See Ford Motor Co., supra, at p. 692; Sutherland, supra, § 48.18.) However, that is not always the case. “Adoption of an amendment is evidence that the legislature intends to change the provisions of the original bill.” (Sutherland, supra, § 48.18, p. 341; fn. omitted.) But, “[a]n amendment may have been adopted only because it better expressed a provision already embodied in the original bill or because the provision in the original bill was unnecessary as unwritten law would produce the same result without it. Thus caution must be exercised in using the action of the legislature on proposed amendments as an interpretive aid.” (Ibid.; fns. omitted.)

The amendment of Assembly Bill No. 1985 upon which Ford Motor Co. relies is insufficient to support its holding. Section 5147 was preceded by former Revenue and Tax Code section 5138. (Stats. 1967, ch. 1236, § 2.)^[2] The text of section 5147 is identical to the second paragraph of its