FOURT, J.
This is an appeal by defendants from a judgment on the pleadings rendered against them upon the grounds that their second amended verified answer does not state facts sufficient to constitute a defense to the complaint.
The complaint set forth among other things that the action was brought pursuant to the provision of the Los Angeles Municipal Code (hereinafter referred to as the “code”) relating to the imposition and collection of municipal license taxes. The provisions of section 21.102 of the code with reference to laundry operators were alleged.*
And further,
that during the years in question, namely 1956 to 1960, inclusive, the defendants were doing the kinds of business described in section 21.102 of the code, but that no part of the sums due, namely $562.03 (including interest and penalties) had been paid. It was also set forth that on November 16, 1960, the clerk of the city levied an assessment* 1
for the unpaid business taxes against the defendants under the authority of section
21.16 of the code. A hearing on the assessment was
requested by the defendants and the same was held on March 29, 1961, and on April 7, 1961, the Board of Review made its
findings,
that no exceptions to the findings were filed by the defendants pursuant to the code or otherwise.
The defendants first demurred to the complaint and upon Being overruled, filed an unverified answer. A motion to strike the answer was granted. A verified first amended answer was filed and ultimately a verified second amended answer (sometimes hereinafter referred to as the “answer”) was filed.
The appellants specifically allege in their ansiver that they did engage Avithin the city in the linen supply business (subject to the tax) but assert that a portion of the gross receipts
of their business came from outside of the city and therefore deny that they owe the city for business taxes. By way of affirmative defenses the defendants allege that the city is attempting to levy taxes upon letting of the use of the linens to persons located outside the city and that such a course is unconstitutional ; that the city is estopped to claim that the defendants are engaged in business as a laundry operator because some assistant city attorney in a letter to the city clerk with reference to a different entity had recited that they were a linen supply house, and further that they were not required to exhaust their administrative remedies because the board had prejudged their case and they could have paid the tax and sued for a refund.
A motion for judgment on the pleadings was made by plaintiff and the court granted the same. This appeal followed.
On such an appeal this court will limit the scope of its inquiry to the issue of whether the answer does state a defense to the complaint. As a consequence various declarations of appellants not set forth in the answer will not be considered. See
Anglo California Trust Co.
v.
Kelley,
117 Cal.App. 692, 693 [4 P.2d 604] ;
Dias
v.
California Employment Stabilization Com.,
113 Cal.App.2d 374, 376 [248 P.2d 427]; California Civil Procedure Before Trial (Cont. Ed. Bar) page 834.
At the outset of considering the issues here involved it is to be particularly noted that this is not an action for a tax refund and as a consequence it would seem that the language used in the tax refund statutes generally to the effect that a taxpayer does not need to exhaust his administrative remedies will not apply in this particular case.
It should also be noted that section 21.102 of the code provides for the taxing of the business of washing or ironing linen, etc., and of the business of furnishing or letting the use of linens, etc. Both operations pay the same tax. The defendants affirmatively allege that they did engage in business within the city. It is uncontroverted that the appellants’ laundry plant is located within the city and the record discloses in a document made a part of the findings of the board (which was admitted by appellants) that “The companies concede, at the outset, that the city has jurisdiction to tax, by reason of the business domiciles being within the city, regular solicitation and sales conducted within the city and laundry facilities located within the city. ’ ’
It is of necessity admitted by the defendants in this case that they deliberately did not exhaust their administrative remedies to secure any correction of the assessment made.
The code provides as heretofore set forth an administrative review procedure for persons in the category of defendants. The board of review is composed of a representative of the controller, the city clerk and the city attorney and it is charged with considering all of the evidence and increasing or decreasing the assessment as the evidence may dictate. Written findings must be made and the assessee may file exceptions to the findings. If exceptions are filed the board of review must consider them within 30 days and either deny the exceptions in writing or prepare other written findings as the merit of the exceptions may require.
In this case the appellants, according to the admitted pleadings, requested a hearing before the board of review but did not appear at such hearing, and when the board made its findings did not file exceptions to such findings.
In
People
v.
West Publishing Co.,
35 Cal.2d 80 [216 P.2d 441], the appellants there made a contention similar in nature to the one advanced by appellants here and the court said, at page 88:
“[The taxpayer] cannot complain of alleged errors in the computation of tax liability, when it refused to avail itself of its administrative remedies to prevent or correct such errors. ’ ’
In other words the appellants here not only failed to exhaust administrative remedies available to them but they knowingly neglected to make more than an insignificant use of the orderly procedure provided for securing a correct tax assessment. In stating the rule the court in
Abelleira
v.
District Court of Appeal,
17 Cal.2d 280, 292 [109 P.2d 942, 132 A.L.R. 715], said:
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FOURT, J.
This is an appeal by defendants from a judgment on the pleadings rendered against them upon the grounds that their second amended verified answer does not state facts sufficient to constitute a defense to the complaint.
The complaint set forth among other things that the action was brought pursuant to the provision of the Los Angeles Municipal Code (hereinafter referred to as the “code”) relating to the imposition and collection of municipal license taxes. The provisions of section 21.102 of the code with reference to laundry operators were alleged.*
And further,
that during the years in question, namely 1956 to 1960, inclusive, the defendants were doing the kinds of business described in section 21.102 of the code, but that no part of the sums due, namely $562.03 (including interest and penalties) had been paid. It was also set forth that on November 16, 1960, the clerk of the city levied an assessment* 1
for the unpaid business taxes against the defendants under the authority of section
21.16 of the code. A hearing on the assessment was
requested by the defendants and the same was held on March 29, 1961, and on April 7, 1961, the Board of Review made its
findings,
that no exceptions to the findings were filed by the defendants pursuant to the code or otherwise.
The defendants first demurred to the complaint and upon Being overruled, filed an unverified answer. A motion to strike the answer was granted. A verified first amended answer was filed and ultimately a verified second amended answer (sometimes hereinafter referred to as the “answer”) was filed.
The appellants specifically allege in their ansiver that they did engage Avithin the city in the linen supply business (subject to the tax) but assert that a portion of the gross receipts
of their business came from outside of the city and therefore deny that they owe the city for business taxes. By way of affirmative defenses the defendants allege that the city is attempting to levy taxes upon letting of the use of the linens to persons located outside the city and that such a course is unconstitutional ; that the city is estopped to claim that the defendants are engaged in business as a laundry operator because some assistant city attorney in a letter to the city clerk with reference to a different entity had recited that they were a linen supply house, and further that they were not required to exhaust their administrative remedies because the board had prejudged their case and they could have paid the tax and sued for a refund.
A motion for judgment on the pleadings was made by plaintiff and the court granted the same. This appeal followed.
On such an appeal this court will limit the scope of its inquiry to the issue of whether the answer does state a defense to the complaint. As a consequence various declarations of appellants not set forth in the answer will not be considered. See
Anglo California Trust Co.
v.
Kelley,
117 Cal.App. 692, 693 [4 P.2d 604] ;
Dias
v.
California Employment Stabilization Com.,
113 Cal.App.2d 374, 376 [248 P.2d 427]; California Civil Procedure Before Trial (Cont. Ed. Bar) page 834.
At the outset of considering the issues here involved it is to be particularly noted that this is not an action for a tax refund and as a consequence it would seem that the language used in the tax refund statutes generally to the effect that a taxpayer does not need to exhaust his administrative remedies will not apply in this particular case.
It should also be noted that section 21.102 of the code provides for the taxing of the business of washing or ironing linen, etc., and of the business of furnishing or letting the use of linens, etc. Both operations pay the same tax. The defendants affirmatively allege that they did engage in business within the city. It is uncontroverted that the appellants’ laundry plant is located within the city and the record discloses in a document made a part of the findings of the board (which was admitted by appellants) that “The companies concede, at the outset, that the city has jurisdiction to tax, by reason of the business domiciles being within the city, regular solicitation and sales conducted within the city and laundry facilities located within the city. ’ ’
It is of necessity admitted by the defendants in this case that they deliberately did not exhaust their administrative remedies to secure any correction of the assessment made.
The code provides as heretofore set forth an administrative review procedure for persons in the category of defendants. The board of review is composed of a representative of the controller, the city clerk and the city attorney and it is charged with considering all of the evidence and increasing or decreasing the assessment as the evidence may dictate. Written findings must be made and the assessee may file exceptions to the findings. If exceptions are filed the board of review must consider them within 30 days and either deny the exceptions in writing or prepare other written findings as the merit of the exceptions may require.
In this case the appellants, according to the admitted pleadings, requested a hearing before the board of review but did not appear at such hearing, and when the board made its findings did not file exceptions to such findings.
In
People
v.
West Publishing Co.,
35 Cal.2d 80 [216 P.2d 441], the appellants there made a contention similar in nature to the one advanced by appellants here and the court said, at page 88:
“[The taxpayer] cannot complain of alleged errors in the computation of tax liability, when it refused to avail itself of its administrative remedies to prevent or correct such errors. ’ ’
In other words the appellants here not only failed to exhaust administrative remedies available to them but they knowingly neglected to make more than an insignificant use of the orderly procedure provided for securing a correct tax assessment. In stating the rule the court in
Abelleira
v.
District Court of Appeal,
17 Cal.2d 280, 292 [109 P.2d 942, 132 A.L.R. 715], said:
“This is the doctrine of ‘exhaustion of administrative remedies.’ In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act. The authorities to this effect are so numerous that only the more important ones need be cited here as illustrations.”
After the above quote in the
Abelleira
case, there follows the citation of fifteen or so cases plus many law review articles
and the statement that “[t]he California cases have consistently applied this settled rule.” The court went-on,further to say, at page 293:
1 ‘Thuerlc itself is settled with scarcely any conflict. It is not a matter of judicial discretion, but is a fundamental rule of procedure laid down by courts of last resort followed under the doctrine of
stare
decisis, and binding upon all courts. We are here asked to sanction its violation, either on the ground that a valid exception to the rule is applicable, or that despite the uniformity with which the rule has been applied, it may be disregarded by lower tribunals without fear of prevention by the higher courts. This last point cannot be too strongly emphasized, for the rule will disappear unless this court is prepared to enforce it. To review such action of a lower court only on appeal or petition for hearing would permit interference with the administrative proceeding pending the appeal or hearing, with the effect of completely destroying the effectiveness of the administrative body. The writ of prohibition can alone operate surely and swiftly enough to prevent this unfortunate result; and only if we recognize that the rule is jurisdictional will it be uniformly enforced. Bearing in mind the analysis of jurisdiction which has heretofore been made, and examining the authorities dealing with the rule, we are necessarily led to the conclusion that exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts. ’ ’
In
People
v.
Sonleitner,
185 Cal.App.2d 350, 361 [8 Cal.Rptr. 528], thé court reviewed the rule and held in effect that where a defendant attempted to defend an action for collection of taxes upon the ground that his activities did not bring him within the purview of the tax law under which the assessment was made the rule of exhaustion of administrative remedies applied.
The respondent admits that a taxpayer may pay a city business tax and sue for a refund and since no administrative procedure is set up for such a tax refund the taxpayer may sue and collect the amount paid if his claim is denied. However, if the taxpayer does not pay the tax alleged to be due and is assessed for nonpayment he must exhaust the administrative remedies provided by the code to secure any correction of the assessment before a court will- permit him to defend an action' for collection, of the tax. -He must do one thing or the other. In other words, there are two
procedures—-the appellants here elected not to pay and to seek administrative assistance—this they did in part and then knowingly failed to appear in person or to have a representative appear at the hearing and failed to file any exceptions within the time allowed or otherwise to proceed. Appellants allege in effect as an excuse for not appearing that they did not appear because they thought that nothing useful or favorable would result to them by such appearance. Appellants should have made their appearance at the board and presented all of their evidence with reference to the tax liability in question to the end that there would have been an orderly review and adjustment. Had the appellants done this the board would then have had the opportunity to rectify any determination it had made which might have been incorrect and to consider a revision of the assessment. See
People
v.
West Publishing Co.,
35 Cal.2d 80 [216 P.2d 441].
No evidence was presented to the board by appellants as to which, if any, factors of their business take place outside of the city. It is not the function of the board, upon its own motion, to carry the burden of providing and securing the evidence favorable to appellants in such matters if there is any such evidence available. It is true that the appellants did indicate that they would rely upon a memorandum which was dated May 17, 1960, and which had been used previously in a preliminary informal discussion between some city officials and some of the defendants. Nowhere in the memorandum however do the appellants set forth any facts as to what portion of their activities (if any) take place outside of the city.
Appellants also assert that the city is estopped to proceed with an action to collect the delinquent tax. They state that no useful purpose would have been served by their appearing before the board because, among other things, the board had prejudged the matter. Furthermore, it is said in effect that the board had made a previous determination contrary to that set forth in the board’s findings, and the board should therefore now be estopped.
Appellants seem to be saying that a letter written by an assistant city attorney to the clerk with reference to a different entity binds the board in this particular case. There is of course no merit to such a contention. The assistant city attorney in any event was not a member of the board. What
was stated in
Abelleira
v.
District Court of Appeal, supra,
17 Cal.2d 280, 300-301, is pertinent:
“One final argument of the [taxpayers] to justify disregard of the administrative remedy may be noticed. They assert that the commission has already decided eases on similar facts against their present position, and therefore that an appeal in the instant case would be fruitless. This is, indeed, the slender thread upon which their entire case hangs. But again their position is unsound in principle and unsupported by the better authorities, for it was early perceived that to countenance this view would break down the rule of exhaustion of remedies. In substance the contention is that if they learn upon hearsay or by analogy that the administrative board may take a certain action, the board may be ignored and its action treated as already taken. We should all be very much surprised, no doubt, to find such an assertion made in the judicial field. One might attempt, for example to bring an original suit in the Supreme Court on the theory that the local superior judge was possessed of a particular opinion opposed to the views of the plaintiff, but he would receive scant consideration. The whole argument rests upon an illogical and impractical basis, since it permits the party applying to the court to assert without any conclusive proof, and without any possibility of successful challenge, the outcome of an appeal which the administrative body has not even been permitted to decide. This argument, though successful in a few cases, has been rejected by the weight of authority. In
Gilchrist
v.
Interborough Rapid Transit Co.,
279 U.S. 159, 209 [49 Sup.Ct. 282, 73 L.Ed. 652], the court said that orderly action could not be defeated ‘by alleging an intent to deny the relief sought. ’ And in
Red River Broadcasting Co.
v.
Federal Communications Com., supra,
[98 F.2d 282 (69 App. D.C. 1) ] the opinion states: ‘Appellant seeks further to excuse its failure, affirmatively to seek administrative relief, by contending that, even if it had attempted to do so, its request would have been denied; consequently; that its attempt would have been a futile and useless gesture. We cannot assume that consequence. If under such circumstances relief had been sought and denied, then there would have been basis for appeal. ... It cannot be heard to complain in this court that there was danger of refusal when it made no effort to do so.' (See, also,
United States Nav. Co.
v.
Cunard S. S. Co.,
284 U.S. 474, 488 [52 Sup.Ct. 247, 76 L.Ed. 408];
United States
v.
Felt & Tarrant
Mfg.
Co.,
283 U.S. 269, 272 [51 Sup.Ct. 376, 75 L.Ed. 1025].)”
We hold that the specific admissions and allegations of the answer nullify any general allegations of the answer by which appellants attempt to state a defense to the complaint. Under the circumstances the judgment is to be affirmed. See
Carlson
v.
Lindauer,
119 Cal.App.2d 292, 301-302 [259 P.2d
925];
California Civil Procedure Before Trial, Continuing Education of Bar, page 836.
The respondent argues further that in any event and under the circumstances the facts as pleaded by appellants are such that, as a matter of law, the respondent is entitled to recover the delinquent taxes in question. It cites
City of Los Angeles
v.
Belridge Oil Co.,
48 Cal.2d 320 [309 P.2d 417];
Barker Bros., Inc.
v.
City of Los Angeles,
10 Cal.2d 603 [76 P.2d 97];
General Motors Corp.
v.
State
(1961) 60 Wn.2d 862 [376 P.2d 843]. However, it is not necessary under the situation presented in this case for this court to make any determination other than as heretofore indicated.
Judgment affirmed.
Wood, P. J., and Lillie, J., concurred.