
    [Civ. No. 10144.
    Second Appellate District, Division Two.
    April 16, 1935.]
    GRAHAM BROTHERS, INCORPORATED (a Corporation), Respondent, v. THE CITY OF LOS ANGELES (a Municipal Corporation), Appellant.
    Ray L. Chesebro, City Attorney, Frederick von Schrader, Assistant City Attorney, and Robert A. Todd, Deputy City Attorney, for Appellant.
    Denio, Hart, Taubman & Simpson and Matthew C. Simpson for Respondent.
    U. S. Webb, Attorney-General, and H. H. Linney and Eugene M. Elson, Deputies Attorney-General, as Amici Curiae on Behalf of Respondent.
   CRAIL, J.

This is an appeal from a judgment in favor of the plaintiff in an action to recover the purchase price of a quantity of rock and gravel including the amount of the tax imposed by the Retail Sales Tax Act of 1933 (Stats. 1933, p. 2599), which item was separately stated. The judgment was for the full amount of the claim including the tax. The contention of the city is that the tax is a sales tax and as such is laid upon the property purchased and is paid by the consumer; that because of the constitutional exemption (Const., art. XIII, sec. 1) the city cannot be compelled to pay taxes on property; that under the law in question, in any event, the city cannot be compelled to pay taxes. A necessary element in all of the city’s contentions is that the tax is paid by the city. If the decision is adverse to the city with reference to this element, the city’s contentions fall.

The question seems to be already definitely settled in California against the city. (People v. Ventura Refining Co., 204 Cal. 286 [268 Pac. 347, 283 Pac. 60]; People v. Herbert’s of Los Angeles, Inc., 3 Cal. App. (2d) 482 [39 Pac. (2d) 829]; Meyer Construction Co. v. Corbett, 7 Fed. Supp. 616.) Upon the authority of these cases we hold that the tax is a tax imposed against the retailer and not against the city. The underlying principles of this case are somewhat more definitely discussed and supporting authorities cited in Rio Grande Oil Co. v. City of Los Angeles (ante, p. 200 [44 Pac. (2d) 451]), decided by us this day.

Judgment affirmed.

Stephens, P. J., concurred.

"A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 13, 1935.

Thompson, J., voted for a hearing.  