County of San Diego v. San Diego Gas & Electric Co.
County of San Diego v. San Diego Gas & Electric Co.
Opinion of the Court
On November 28, 1952, the county of San Diego filed an action for declaratory relief and an accounting for monies claimed to be due for the years 1947 to 1951, inclusive, for franchises granted by the county to defendant under the Broughton Act (Pub. Util. Code, §§ 6001-6017). That act fixed the payments at “. . . two percent (2%) of the gross annual receipts of the grantee arising from the use, operation, or possession of the franchise.”
Defendant serves all of San Diego County including several municipalities. It has two franchises from the county, one for electric lines and one for gas lines. It also holds franchises granted by the several municipalities.
Among the municipalities served by defendant are the
Defendant computed its payments to the county in the following manner: (1) it determined its gross receipts from the county alone, excluding all receipts from city consumers; (2) it apportioned county receipts between distribution property and all other operative property by means of an “investment factor,” a percentage figure derived by dividing the value of investment in distribution property in both the city and county by the value of total investment in all operative property m both the city and county - (3) it apportioned the part of gross receipts thus attributed to distribution property between public and private rights of way according to the number of miles of each in the county.
The trial court found that the method used by defendant in its computation was correct, and therefore entered judgment for defendant. The county appeals.
The county contends that defendant’s facilities are operated as a unit and that receipts of the entire system should therefore be included in the computation and apportioned among the various franchises by the method approved in prior decisions of this court. (County of Tulare v. City of Dinuba, 188 Cal. 664 [206 P. 983] ; City of San Diego v. Southern Calif. Tel. Corp., 42 Cal.2d 110 [266 P.2d 14] ; County of Los Angeles v. Southern Counties Gas Co., 42 Cal.2d 129 [266 P.2d 27] ; see also County of Tulare v. City of Dinuba, 87 Cal.App. 744 [263 P. 249].) The county also urges that even if city receipts are to be segregated from defendant’s total receipts, county receipts should likewise be so segregated, but that defendant does not consistently maintain such segregation, for it allocates part of the county receipts to the city by applying in its apportionment between distribution property and other operative property an “investment factor” that reflects the value of investment in plant in both the city and county.
The basic question presented is whether receipts from defendant’s entire system should be included in the computation of payments due the county, or whether defendant can identify the gross receipts produced by its city property by treating its county and city operations as separate and distinct from each other and exclude that portion of its gross receipts from the computation of payments due the county.
It is true that in the Dinuba case it was recognized that apportionment by formula might not be necessary in every situation. It was said: “We have adopted this appropriation, to the various rights of way, according to mileage, not necessarily as an exclusive method of distribution of the gross receipts, but as a practicable one where the contribution of the various franchise easements to the gross earnings cannot be otherwise determined. There may be portions of the distributing system where the entire transmission from the producing plant to the consumer is supplied through a given franchise, or is entirely supplied over private easements. Such earnings would inure to such specific franchises or easements. . . . But where, as will often happen, contribution to the earnings of the various rights of way is general and indistinguishable, we can see no reason why the proportionate mileage basis should not be used in apportioning the statutory percentage of gross receipts.” (188 Cal. at 681-682.)
We are thus brought to the question whether defendant operates its property on a system-wide basis or whether its city and county operations are so separate and distinct that the receipts of one are not dependent upon or contributed to by the other.
During the years in question
We conclude therefore that since defendant’s business is a unitary one and its county and city operations are integrated rather than separate and distinct from each other, defendant must compute its payments to the county on a system-wide basis in accord with established principles governing such computation. (County of Los Angeles v. Southern Counties Gas Co., supra, and cases cited.)
The judgment is reversed for a recomputation of the dis
Gibson, C. J., Shenk, J., Carter J., and Spence, J., concurred.
Similar principles are applied in the cases arising under the California Bank and Corporation Franchise Tax Act now found in part 11 (§§ 23001 et seq.) of the Revenue and Taxation Code. (See Butler Brothers v. McColgan, 17 Cal.2d 664 [111 P.2d 334]; Edison Calif. Stores v. McColgan, 30 Cal.2d 472 [183 P.2d 16]; John Deere Plow Co. v. Franchise Tax Board, 38 Cal.2d 214 [238 P.2d 569].)
On November 1, 1949, the company started importing gas over county rights of way for use in the city. After the commencement of this action the company made supplemental payments to the county for use of the gas franchise for the last two months of 1949 and for the years 1950 and 1951, basing those payments on a computation that includes receipts from its entire system. The dispute as to the gas franchise is therefore limited to the payments for 1947, 1948, and the first ten months of 1949.
Dissenting Opinion
I dissent. I agree with the reasoning in the opinion prepared by Mr. Presiding Justice Barnard for the District Court of Appeal in County of San Diego v. San Diego Gas & Electric Co. (Cal.App), 299 P.2d 664.
Sehauer, J., concurred.
Respondent’s petition for a rehearing was denied March 20, 1957. Sehauer, J., and McComb, J., were of the opinion that the petition should be granted.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.