author: SHENK, J.

text:
    [L. A. No. 16598.
    In Bank.
    January 2, 1940.]
    SOUTHERN SERVICE COMPANY, LTD. (a Corporation), Plaintiff and Appellant, v. COUNTY OF LOS ANGELES (a Body Corporate and Politic), Defendant and Appellant; CITY OF LOS ANGELES (a Municipal Corporation), Intervener and Respondent.

      Allard, Holbrook & Whyte, Stater & Dawson, Holbrook & Tarr, Holbrook, Taylor, Tarr & Reed, Bailie, Turner & Lake, Cruickshank, Brooke & Dunlap, Evans & Boyle, Meserve, Mumper, Hughes & Robertson, Overton, Lyman & Plumb, Loyd Wright and W. Sumner Holbrook, Jr., for Plaintiff and: Appellant.
    Burr A. Brown, City Attorney (Seal Beach), James Davis, District Attorney (Siskiyou County), L. B. Fowler, City Attorney (Chowchilla), Dorsey G. Whitelaw, City Attorney (El Centro), L. W. Cottingham, City Attorney (Oceanside), Charles F. Blackstock, City Attorney (Oxnard), I. H. Ham, City Attorney (Tulare), Norman Johnson, City Attorney (Fort Bragg), Guy Lewis, City Attorney (Hawthorne), E. L. Maxwell, City Attorney (Mountain View), Edwin P. Jacob-sen, City Attorney (Delano), Newlin & Ashburn, Wood, Crump & Rogers, Chandler, Wright & Ward, Chandler P. Ward, Roy A. Linn, Clock, McWhinney & Clock, Laurence B. Martin, David E. Hinckle, B. J. Feigenbaum and U. T. Clotfelter, as Amici Curiae, on Behalf of Plaintiff and Appellant.
    Everett W. Mattoon, County Counsel, J. H. O’Connor and S. V. 0. Prichard, Assistant County Counsel, and A. Curtis Smith, Deputy County Counsel, for Defendant and Appellant.
    Ray L. Chesebro, City Attorney, Leon Thomas David and F. Von Schrader, Assistants City Attorney, S. B. Robinson, Chief Assistant City Attorney, John W. Holmes, Russell B. Jarvis, Rex B. Goodcell, Jr., and Franklin W. Peck, Deputies City Attorney, Randolph Karr, formerly Deputy City Attorney, and Henry C. Ramsey for Intervener and Respondent.
    James B. Abbey, District Attorney (San Diego County), Carroll H. Smith, Deputy District Attorney, Harold P. Huls, City Attorney (Pasadena), Dayton L. Ault, City Attorney (San Diego), II. S. Webb, former Attorney-General, H. H. Linney, Deputy Attorney-General, James J. Arditto, Deputy Attorney-General, Carl F. Farbach, General Counsel (Federal Emergency Administration of Public Works), Samuel Taylor, Regional Counsel, John F. Harrell, W. H. Orrick, George Herrington, Orville A. Rohlf, Warren A. Palmer, Orrick, Dahlquist, Neff & Herrington, O’Melveny, Tuller & Myers, James L. Beebe, H. G. Baron, City Attorney (Taft), C. M. Ozias, City Attorney (Fresno), E. I. Feemster, City Attorney (Visalia), J. E. Greene, City Attorney (Dinuba), Richard C. Waltz, City Attorney (Beverly Hills), Glenn West, City Attorney (Lodi), Maxwell Nichols, City Attorney (Santa Barbara), Earl Warren, District Attorney (Alameda County), James B. Abbey, District Attorney (San Diego County), Hurley T. Bailey, City Attorney (Santa Maria), George Wads-worth, City Attorney (Tracy), P. J. Tschamer, City Attorney (Azusa), Carlton H. Casjens, City Attorney (Bell), Christopher J. Griffin, City Attorney (Huntington Park), Hugh B. Bradford, City Attorney (Sacramento), J. W. Coleberd, City Attorney (South San Francisco), Burr A. Brown, City Attorney (Seal Beach), Francis R. Hall, City Attorney (Santa Cruz), H. Scott Jacobs, City Attorney (Hanford), Charles D. Warner, City Attorney (Chino), H. F. Orr, City Attorney (Ventura), Ralph W. Swagler, City Attorney (Burbank), Thomas W. Bewley, City Attorney (Whittier), E. P. Mulhollánd, City Attorney (Signal Hill), L. S. Hitchcock, City Attorney (Santa Rosa), Russell Scott, City Attorney (Salinas), Paul B. Wilson, City Attorney (Redlands), A. D. Mitchell, City Attorney (Ontario), Waldo Willhoft, City Attorney (Colton), Ray H. Overacker, City Attorney (Huntington Beach), Raymond Thompson, City Attorney (Fullerton), Archer Bowden, City Attorney (San Jose), John J. O’Toole, City Attorney (San Francisco), as Amici Curiae, on Behalf of Defendant and Appellant, and Intervener and Respondent.
   SHENK, J.

The plaintiff commenced an action under section 3804 of the Political Code to recover taxes alleged to have been illegally collected pursuant to an excessive tax rate adopted by the board of supervisors for the tax year 1933-1934. (See Otis v. Los Angeles County, 9 Cal. (2d) 366 [70 Pac. (2d) 633].) The plaintiff recovered a judgment for items aggregating $50.16. As to other items the court rendered judgment for the intervener, City of Los Angeles, and the defendant, County of Los Angeles. Both the plaintiff and the defendant, County of Los Angeles, have appealed from the judgment and the appeals are now pending in this court.

The present proceeding is a motion on behalf of the County of Los Angeles and the City of Los Angeles to dismiss the plaintiff’s appeal and for a direction to the trial court to dismiss the action on the ground that the same has abated by reason of the provisions of chapter 159, Statutes of 1939. The moving parties will be referred to as the defendants.

Chapter 159, approved May 16, 1939, is entitled: “An Act to Add Sections 3804.1, 3804.2 and 3804.3 to the Political Code, and to Add Sections 4806, 5097.3 and 5097.4 to the Revenue and Taxation Code, relating to Property Taxation, Including Refund and Actions for Recovery of Taxes Heretofore Erroneously or Illegally Levied. ’ ’

Section 1 adds section 3804.1 to the Political Code, reading as follows:

“No refund shall be made under section 3804 of this code, nor shall any action be hereafter commenced nor shall any action heretofore commenced be further prosecuted for the recovery, of any tax voluntarily paid which was levied prior to January 1, 1939, claimed to be erroneous or illegal, by reason of errors, omission or illegalities in preparing, transmitting, computing, determining or fixing the budget or tax rate or rates of any county, city and county, school district, municipal corporation or other public corporation, or political subdivision, in any case in which the taxes collected from such erroneous or illegal levy have been applied in the next or any succeeding fiscal year to reduce the tax levy for such year, or have been expended, appropriated, or applied for a public purpose. For the purposes of this section, the mere payment of a tax under protest shall not be deemed to constitute such payment an involuntary payment.”

Sections 3804.2 and 3804.3 also added to the Political Code by the new enactment provide for the time within which and the conditions under which claims for certain refunds of taxes may be filed; and the provisions thereof need not be specifically noted at this time. Sections 4806, 5097.3 and 5097.4 added to the Revenue and Taxation Code incorporate the language of sections 3804.1, 3804.2 and 3804.3 respectively added to the Political Code, to become effective only upon the adoption of a Revenue and Taxation Code by the 53d legislature. (Chap. 154, Stats, of 1939.)

In support of their motion the defendants have filed affidavits presenting further facts to establish the applicability of section 3804.1, namely, facts showing that the taxes collected from such erroneous or illegal levy have been applied in the next or a succeeding fiscal year to reduce the tax levy for such year, or have been expended, appropriated or applied for a public purpose. Upon the showing made the defendants are entitled to the relief sought by their motion, unless the provisions of section 3804.1 of the Political Code violate some provisions of the state or federal Constitutions.

The first contention to be noted in that respect is that section 3804.1 violates the constitutional guaranties of due process and equal protection and the prohibition against the enactment of laws impairing contract and vested rights. In order to support its arguments in this connection the plaintiff contends, and must necessarily contend, that the payment of the taxes sought to be recovered was made involuntarily.

The plaintiff paid the taxes herein involved prior to the date when they would have become delinquent. The payment was not made under protest. Subsequently the plaintiff filed its claim pursuant to section 3804 of the Political Code for a refund of that portion of the 1933-1934 tax payment claimed to have been excessive by reason of alleged errors in the preparation of the budget or the calculation of the tax rate, or both. The board of supervisors rejected the claim and the plaintiff filed its action thereon, which action was still pending when the legislature in 1939 added said section 3804.1 to the Political Code. The effect of that legislative action, pursuant to eases hereinafter cited, was to cut off the remedy to the plaintiff and to terminate the action herein unless the plaintiff had a vested property interest in or a contractual right to recover the claimed excessive portion of the taxes so paid.

It is the settled law of this state that illegal taxes voluntarily paid may not be recovered by the taxpayer in the absence of a statute permitting a refund thereof; and in the absence of such statute only illegal taxes paid under duress, coercion or compulsion are considered to have been involuntarily paid and therefore recoverable. (Brumagim v. Tillinghast, 18 Cal. 265, 269, 271 [79 Am. Dec. 176]; Grimes v. County of Merced, 96 Cal. App. 76, 81-83 [273 Pac. 839]; Maxwell v. San Luis Obispo County, 71 Cal. 466 [12 Pac. 484]. See, also, Brandt v. Riley, 139 Cal. App. 250 [33 Pac. (2d) 845], and cases hereinafter cited.)

The plaintiff concedes that the common law as to what constitutes an involuntary payment is the rule for the guidance of this court in determining whether the payment of the tax herein was voluntary or involuntary. The presence or absence of a written protest does not appear to be the distinguishing feature. That is, if the taxes were paid involuntarily, namely, “by means which amount to duress or coercion, they may be reclaimed . . . without proof that they were paid under protest”. (Brandt v. Riley, supra, at page 253, citing Whyte v. State, 110 Cal. App. 314 [294 Pac. 417]; Grimes v. County of Merced, 96 Cal. App. 76 [273 Pac. 839], and other authorities.) On the other hand it has also been held that the filing of a protest with a payment of illegal taxes otherwise voluntarily made does not deprive the payment of its voluntary character. (Brumagim v. Tillinghast, supra, at page 275; Bucknall v. Story, 46 Cal. 589 [13 Am. Rep. 220]; Bank of Woodland v. Webber, 52 Cal. 73; Merrill v. Austin, 53 Cal. 379; Dear v. Varnum, 80 Cal. 86, 89 [22 Pac. 76]; Justice v. Robinson, 142 Cal. 199 [75 Pac. 776]; Warren v. City and County of San Francisco, 150 Cal. 167 [88 Pac. 712]; see, also, Meek v. McClure, 49 Cal. 623.) The plaintiff argues that decisions in this state and elsewhere upon which it relies establish that the payment involved herein was involuntary in character. But the contrary appears from an examination of the pertinent decisions in this state. In the ease of Brumagim v. Tillinghast, supra, at page 271, it was said: ‘1 The illegality of the demand paid constitutes of itself no ground for relief. There must be, in addition, some compulsion or coercion attending its assertion, which controls the conduct of the party making the payment. It is the compulsion or coercion under which the party is supposed to act which gives him a right to relief. If he voluntarily pay an illegal demand, knowing it to be illegal, he is, of course, entitled to no consideration; and if he voluntarily pay such demand in ignorance or misapprehension of the law respecting its validity, he is in no better position, for it would be against the highest policy to permit transactions to be opened upon grounds of this character. ” The court there held to have been voluntary a payment of illegal taxes imposed upon bills of lading for transportation of gold and silver, because the payment was made without the compulsion or coercion which the law recognized as sufficient to render payments involuntary. It defined such compulsion or coercion in general as “some actual or threatened exercise of power possessed, or supposed to be possessed, by the party exacting or receiving the payment over the person or property of the party making the payment from which the latter has no other means of immediate relief than by advancing the money”. The court followed many cited cases from other jurisdictions.

In Williams v. Corcoran, 46 Cal. 553, 556, it was held that a threat to sell lands, made before the taxes had become delinquent, was idle and did not amount to coercion, citing Bucknall v. Story, supra, which approved and followed the rule of Brumagim v. Tillinghast, supra, to the effect that where there is no legal duress or coercion, the payment is voluntary.

In Bank of Woodland v. Webber, supra, the court held that the payment of a tax under protest was voluntary where the payment was made before delinquency.

Relying on the last cited case and the decision in Bucknall v. Story, supra, the court in the case of Bank of Santa Rosa v. Chalfant, 52 Cal. 170, held that a threat to sell made before delinquency—the defendant not being armed with any authority real or apparent to carry out the threat—did not constitute legal duress and a payment of taxes made thereunder was a voluntary payment.

Consistently it was also so held in Wills v. Austin, 53 Cal. 152, 180, and that payment of an illegal tax was voluntary even when made pursuant to the collector’s threat to add the five per cent penalty and to place the property on the delinquent list. A similar decision was handed down in the case of Merrill v. Austin, 53 Cal. 379, while in De Fremery v. Austin, 53 Cal. 380, the facts were held not to be controlled by the foregoing cases because payment of the tax was made after the delinquent list had been issued to the tax collector giving him authority to seize and sell the property.

The rule of Brumagim v. Tillinghast, supra, was considered as established in 1886 when it was followed in the case of Maxwell v. San Luis Obispo County, supra. Similar recognition of the rule appears in Meek v. McClure, supra; Younger v. Board of Supervisors, 68 Cal. 241, 242 [9 Pac. 103] ; Cooper v. Chamberlain, 78 Cal. 450 [21 Pac. 14]; Dear v. Varnum, 80 Cal. 86 [22 Pac. 76]; Phelan v. San Francisco, 120 Cal. 1 [52 Pac. 38]; San Diego L. & T. Co. v. La Presa School Dist., 122 Cal. 98 [54 Pac. 528] ; Wheeler v. Ridenour, 149 Cal. 782 [87 Pac. 802] ; Warren v. City and County of San Francisco, 150 Cal. 167 [88 Pac. 712]; Justice v. Robinson, 142 Cal. 199 [75 Pac. 776] (see, also, Spencer v. City of Los Angeles, 180 Cal. 103 [179 Pac. 163]), and other cases, such as Hayes v. County of Los Angeles, 99 Cal. 74 [33 Pac. 766], and Stewart Law & Coll. Co. v. County of Alameda, 142 Cal. 660 [76 Pac. 481], The particular circumstances involved in the case of Whyte v. State, supra, relied on by the plaintiff, prevent what was said concerning the coercive features appearing in that case from becoming applicable here.

The ease of Hellman v. City of Los Angeles, 147 Cal. 653 [82 Pac. 313], recognized that the foregoing was the general common-law rule which, however, has been abrogated by the adoption of sections 3804 and 3819 of the Political Code so as to permit recovery although the payments were voluntary in all those cases coming within the provisions of the code sections. Section 3819 of the Political Code, allowing an action to recover a refund of certain taxes paid under protest, was involved in the Heilman case. In that ease the court stated that the statute in derogation of the common-law rule was “befitting to this more enlightened age”. It is obvious, however, from the language of section 3804.1, adopted in 1939, that the legislature had before it facts which satisfied it that the motives of justice which prompted a previous legislature to create the remedy for refund of illegal taxes voluntarily paid do not apply where the illegality attached by reason of a miscalculation in the tax rate and the resulting collections effected a proportionate decrease in the tax rate in a subsequent year. In such a case every taxpayer in the district is proportionately affected and has an equal right to recover the portion of the tax which is excessive by virtue of the erroneous calculation, or, if uniformly the excess is not refunded, all are proportionately benefited by a decrease in the tax rate in a subsequent year. Therefore, to obtain an orderly and economic routine in the collection of taxes the legislature was prompted to correct an existing condition by withdrawing the application of the Political Code sections creating the right of refund, and expressly terminating all pending actions based thereon, except where the payments were involuntary in accordance with the common law adopted in this state. The withdrawal of the remedy in such cases does not contravene the policy exemplified in sections 3804 and 3819 of the Political Code, but in fact is consistent therewith. This is so for the reason that equality among taxpayers is maintained more uniformly and economically by withdrawing the statutory remedy in the case of such blanket errors and permitting the application of the excess to reduce the tax rate uniformly on all affected property in a subsequent year. Therefore, the 1939 additions to the Political Code indicate the legislative purpose to declare that the policy denominated “justice”, which “requires the reimbursement of taxes which are illegally levied and collected” (Brandt v. Riley, 139 Cal. App. 250, 253 [33 Pac. (2d) 845]), does not necessarily extend to situations such as the present, but more correctly to those situations only where overpayment of taxes has resulted by reason of over-assessment ’ or other error affecting a particular person or piece of property as distinguished from other persons or property not similarly affected, thus resulting in an inequality. (See Hayes v. County of Los Angeles, 99 Cal. 74, 78, 79 [33 Pac. 766].) The legislature has now declared a rule to govern a situation which this court, because of controlling general rules of construction of tax statutes, was precluded from applying in the case of Otis v. Los Angeles County, supra. Every intendment, under well-known principles, is favorable to the validity of the enactment. What we have said indicates that the distinction made by the legislature is not one which may be held to violate the equal protection clause of the federal Constitution invoked by the plaintiff, but it is apparent that it is founded on a rational basis. The fact that the provision does not apply indefinitely in futuro is a matter solely of legislative concern and does not affect its validity.

The foregoing discussion and review leads to the conclusion that the plaintiff possessed no right or remedy pursuant to section 3804 of the Political Code which existed apart from the statute itself and which the legislature could not cut off by repeal. The general relationship of sovereign and taxpayer is not founded on nor does it create any contractual rights. (Perry v. Washburn, 20 Cal. 318, 350; Spurrier v. Neumiller, 37 Cal. App. 683 [174 Pac. 338].) A right to a credit or refund of taxes is purely statutory. (Spurrier v. Neumiller, supra; Bell v. County of Los Angeles, 90 Cal. App. 602 [266 Pac. 291], citing Brooks v. County of Tulare, 117 Cal. 465 [49 Pac. 469].) The legislature may withdraw such a statutory right or remedy, and a repeal of such a statute without a saving clause will terminate all pending actions based thereon. (Napa State Hospital v. Flaherty, 134 Cal. 315 [66 Pac. 322] ; Moss v. Smith, 171 Cal. 777 [155 Pac. 90] ; Callet v. Alioto, 210 Cal. 65 [290 Pac. 438] ; Penziner v. West American Finance Co., 10 Cal. (2d) 160, 170 [74 Pac. (2d) 252] ; Spurrier v. Neumiller, supra.) Our conclusion that the legislature had the power to enact a statute which would cut off the right theretofore accorded the plaintiff and terminate pending actions under section 3804 is also supported by the case of People v. Lindheimer, 371 Ill. 367 [21 N. E. (2d) 318], In that case the writ of mandamus was sought to collect a refund of taxes erroneously but voluntarily paid. Before final judgment the statute giving the right to the refund was repealed. It was said: “The obligation of the citizen to pay taxes is purely a statutory creation, and taxes can be levied, assessed and collected only in the method pointed out by express statute. ... So, also, any right to a refund or a credit of taxes is purely of statutory origin, and in the absence of an authoritative statute, taxes voluntarily, though erroneously, paid cannot be recovered, nor even voluntarily refunded by a county, although there may be justice in the claim. . . . there is no vested right in a public law which is not in the nature of a private grant, and, however beneficial a statute may be to a particular person or however injuriously the repeal may affect him, the legislature has the right to abrogate it.” The court concluded that the right to refund was cut off by the unconditional repeal of the statute creating it, saying: “The unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them. If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards, even if a judgment has been entered and the cause is pending on appeal. The reviewing court must dispose of the case under the law in force when its decision is rendered. ’ ’

In the ease before us, therefore, the legislature was acting within its constitutional powers when it withdrew the right to a refund of such illegal taxes and cut off the remedy by action including all pending actions, saving only the common-law right to a refund of taxes involuntarily paid.

The numerous cases upon which the plaintiff relies, such as Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56 [259 Pac. 444, 56 A. L. R. 264]; Callet v. Alioto, 210 Cal. 65 [290 Pac. 438] ; La Forge v. Magee, 6 Cal. 650; Grimes v. County of Merced, 96 Cal. App. 76 [273 Pac. 839] ; Chapman v. City of Brooklyn, 40 N. Y. 372; Pacific Mail Steamship Co. v. Joliffe, 69 U. S. (2 Wall.) 450 [17 L. Ed. 805] ; Ettor v. City of Tacoma, 228 U. S. 148 [33 Sup. Ct. 428, 57 L. Ed. 773] ; Forbes Pioneer Boat Line v. Board of Commrs., 258 U. S. 338 [42 Sup. Ct. 325, 66 L. Ed. 647] ; Coombes v. Getz, 285 U. S. 434 [52 Sup. Ct. 435, 76 L. Ed. 866], and similar cases, involved either rights which existed independently of the statute, or so-called validating acts (which the statute here considered does not purport to be), and the conclusions there announced under the particular facts are neither pertinent nor controlling in the present case.

No serious consideration may be accorded the contention that the foregoing stated principles do not apply herein because the 1939 act does not repeal section 3804 of the Political Code. True, the words of the 1939 statute are not expressly words of repeal without a saving clause, but the effect is the same in so far as the application of the principles is concerned when the legislature by apt expression has withdrawn the right and remedy in particular cases, including all pending actions based thereon. The legislature, no doubt having in mind the holding of this court in Krause v. Rarity, 210 Cal. 644, 654, 655 [293 Pac. 62, 77 A. L. R. 1327], expressly provided that the withdrawal of the right to refund in the particular class of illegal taxes specified should terminate all pending actions. Its expression in this respect is sufficient to accomplish the declared intent and purpose.

The foregoing likewise answers the contention, made in reliance upon such cases as Puterbaugh v. Gila County, 45 Ariz. 557 [46 Pac. (2d) 1064], and Frink v. Clark, (Iowa) 285 N. W. 681, that the statute is invalid because it attempts to prohibit the courts from hearing pending actions and deprives them of jurisdiction. The statute does not so purport to do. In those cases, as well as other cases cited herein, it is recognized that the legislature may take away the right of action itself. The fact that the statute here involved does take away the right of action distinguishes it from the legislation involved in the cases relied upon by the plaintiff.

We conclude that the application of the provisions of chapter 159 of the 1939 statutes to terminate the action here pending violates none of the constitutional rights of guaranties invoked by the plaintiff.

No merit may be accorded the contention that the act is invalid as a violation of section 24 of article IV of the state Constitution providing that every act shall embrace but one subject which shall be expressed in its title. The title contains a general reference to “property taxation, in eluding refund and actions for recovery of taxes theretofore erroneously or illegally levied’’. The plaintiff states that the title should have more fully indicated the nature of the legislation, that is, that it prohibited or withdrew the right of refund and abated pending actions in certain cases of taxes heretofore erroneously or illegally levied. The plaintiff argues that the wording is deceiving and misleading within the meaning of the language used in Ex parte Liddell, 93 Cal. 633, 636 [29 Pac. 251], and Jackson v. City of Santa Monica, 13 Cal. App. (2d) 376, 390 [57 Pac. (2d) 226], The general references contained in the title were sufficient. Anything more specific would have led to a prolix or complicated statement of the context of the act itself. The act has but one general object and therefore does not embrace more than one subject. By the general statement of the subject-matter, which is property taxation and specifically refund and actions for recovery of certain illegal taxes indicated, the reader is put on notice that the context of the act affects such refunds and actions therefor, which, under accepted formulae, is sufficient. (Ex parte Liddell, supra; Abeel v. Clark, 84 Cal. 226, 229 [24 Pac. 383]; O. T. Johnson Corp. v. City of Los Angeles, 198 Cal. 308, 323 [245 Pac. 164]; Estate of Phillips, 203 Cal. 106, 115 [263 Pac. 1017] ; Heron v. Riley, 209 Cal. 507, 510 [289 Pac. 160] ; Evans v. Superior Court, 215 Cal. 58, 62, 63 [8 Pac. (2d) 467].)

It is also contended that chapter 159 of Statutes of 1939 does not apply herein because all of the taxes levied in the tax year involved have not been collected. The plaintiff urges that the words “the taxes collected’’ appearing in section 3804.1 of the Political Code as adopted by the legislature refer to all “the taxes’’ which have been levied. Inasmuch as the word “collected’’ must be given the force which the plain language implies, we must conclude that its employment to modify the word “taxes’’ is sufficient answer to the plaintiff’s contention.

The plaintiff also contends that the provisions of section 15 of article XIII of the California Constitution guarantees to it the right to maintain the present action to recover the taxes herein claimed to be illegal. The language of that section is: “No injunction or writ of mandate or other legal or equitable process shall ever issue in any suit, action or proceeding in any court against this State, or any officer thereof, to prevent or enjoin the collection of any tax levied under the provisions of this article; but after payment thereof action may be maintained to recover, with interest, in such manner as may be provided by law, any tax claimed to have been illegally collected.” The plaintiff's argument is that the portions of the sentence separated by the semicolon are separable and separate; therefore that “any tax” as used in the latter portion is not limited by and has no reference to the words “any tax” as used in the first part of the sentence, and that the second part of the sentence constitutes a guaranty of the right to maintain an action for the recovery of any tax, without limitation, which may be claimed to have been illegally collected. It appears too obvious to merit extended discussion that the quoted section comprises but a single sentence, whose subject-matter is stated in the first portion thereof and that the words “any tax” used in the latter portion refer to that subject-matter. Prior to June, 1933, the words “this section” appeared in the place of the words “this article”, used in the sentence as amended in 1933. Article XIII relates to the revenue and taxation system of the state, and in general terms requires taxation of all personal and real property in the state with certain exemptions. However, the plaintiff’s further argument based on the change of wording cannot avail it here. The provision withholding the equitable remedy and restricting the taxpayer to an action at law for a refund does not have the effect claimed by the plaintiff. The provision may not be construed to extend the remedy by action at law to cases other than as provided by statute or under the common law.

The foregoing disposes of all of the contentions raised by the plaintiff.

The additional factual showing by the defendants, which brings the present case within the provisions of said section 3804.1, and our conclusion that the 1939 enactment does not contravene any constitutional provision require that the motion to dismiss the appeal and to abate the action be granted. Accordingly, the appeal of the plaintiff herein is dismissed, and to accomplish the abatement of the pending action the judgment in favor of the plaintiff is reversed with directions to the trial court to dismiss said action.

Waste, C, J., Gibson, J., Knight, J., pro tem., Spence, J., pro tem., and Curtis, J., concurred.

Carter, J., deeming himself disqualified, did not participate.

Rehearing denied. Edmonds, J., and Carter, J., did not participate.


source: Caselaw Access Project

author: THE COURT.

license: Public Domain

text:
    [L. A. No. 17296.
    In Bank.
    January 5, 1940.]
    CITY OF LOS ANGELES (a Municipal Corporation) et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent.

      Ray L. Chesebro, City Attorney, Leon T. David, Assistant City Attorney, and Franklin W. Peck, Robert W. Anderson, and Robert A. McMillan, Deputies City Attorney for Petitioners.
    J. II. O’Connor, County Counsel, Douglas DeCoster, Deputy County Counsel, and Walter L. Bruington for Respondent.
   THE COURT.

This is a proceeding in mandamus to compel the dismissal of an action under the provisions of section 583 of the Code of Civil Procedure, on the ground that the cause had not been brought to trial within five years from the time the plaintiff in said action had filed, its complaint in the Superior Court, and on the further ground that the plaintiff had failed to prosecute the action with due diligence. An alternative writ issued and a demurrer to the petition was interposed by the respondent Superior Court.

From the petition it appears that on August 5, 1931, Crown Body Corporation, Ltd., a corporation, commenced an action in the Superior Court against the City of Los Angeles, its Board of Public Works and the City Engineer to enjoin and restrain the city from operating an asphalt plant within the City of Los Angeles, which said plant was situated on the opposite side of the street from the plaintiff’s place of business, the operation thereof allegedly constituting a nuisance. The defendant’s answer was a denial of the material allegations of the complaint. After several continuances, on December 28, 1931, the court ordered the said action off calendar. Pursuant to a second motion by the plaintiff the court set the action for trial, which was continued to January 18, 1932; and at the hearing held on that date the plaintiff appeared in court with several witnesses and proceeded with the introduction of evidence in support of the allegations of the complaint. After one witness—the vice-president of the plaintiff corporation—had testified, and two photographs had been introduced as exhibits, the proceedings in the said action were continued to the following day. When the hearing was resumed on January 19, 1932, and before any further testimony on the part of the plaintiff had been introduced, the defendants in the action suggested that a stipulation be entered into between the parties litigant whereby the action would be continued to a later date for trial and whereby an injunction pendente lite would be issued by the court restraining the city from operating the asphalt plant until a dust collector had been installed therein; from allowing sand and gravel to be deposited in the street on which the plant fronted as well as the plaintiff’s place of business; and from allowing or causing to be allowed on said street in front of the plant or the plaintiff’s premises more than a single line of trucks and trailers such as theretofore had been used by the city in loading or unloading material destined to or proceeding from the said plant. Pursuant to such proposal by the defendant’s attorneys, a stipulation to the effect herein-before outlined was entered into by the parties to the action. Following the execution of the stipulation the court made the following minute order:

"Trial of cause resumed with all parties present as before. It is stipulated that an injunction pendente lite issue to enjoin the operation of the asphalt plant in question; that plaintiff may file an amended or supplemental complaint; stating a new cause of action as to the reconstructed plant at the present location; that the injunction limit defendants trucks to one line formation about the premises in the streets; "

An order of the court was thereupon entered which, in substance, followed the provisions of the stipulation. For purposes of trial, the action was continued to April 23, 1932, on which date the cause was again ordered off the calendar,— at which time the court made a minute order which recited that "On stipulation, cause is ordered off calendar and the ‘preliminary injunction’ pendente lite is ordered in full force and effect until cause is tried.” (Emphasis added.)

Thereafter, the following proceedings took place: On October 20, 1937, the plaintiff filed a motion to set the action for trial. On October 22, 1937, by means of a motion therefor the defendants sought to procure a dismissal of the action specifically under the provisions of section 583, Code of Civil Procedure; on October 23, 1937, the plaintiff filed another motion to set the cause for trial; and on October 27, 1937, the motion to dismiss was denied without prejudice. On November 4, 1937, the defendants filed another motion to dismiss the action, which motion was denied on November 10, 1937. Thereafter, and on February 1, 1938, the action was set for hearing on the pretrial calendar of respondent court and, on February 8, 1938, after a pretrial hearing had been held, the cause was again placed off calendar. On April 28, 1939, a third motion to dismiss the action was made by the defendants therein, which was accompanied by a motion to dissolve the preliminary injunction “on the ground that no bond was ever posted by plaintiff on the granting of the ‘preliminary injunction’ ”. On May 3, 1939, each of those two motions was denied with prejudice. It further appears that on June 28, 1939, the defendants caused to be filed another motion to dismiss the action,—which motion again was based on the specific ground that, within the meaning of the second sentence of section 583, said action was not brought to trial within five years after it had been commenced. The pertinent language of said section is as follows: “ . . . Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have stipulated in writing that the time may be extended.” (Emphasis added.)

Following the denial of the last of said motions the defendants sought a writ of mandate to compel the Superior Court to dismiss the action and to refrain from taking any further steps either therein or in specified contempt proceedings then pending against them in connection therewith.

The principal contention of the petitioners herein is that the action was not “brought to trial” within the five-year period provided for by section 583, Code of Civil Procedure, by reason of the fact that, assertedly, the hearing that was held on the issuance of the “preliminary injunction” did not constitute a trial within the meaning of the provisions of that section. Although in the case of Superior Oil Co. v. Superior Court, 6 Cal. (2d) 113 [56 Pac. (2d) 950], it was ruled that an ordinary hearing on affidavits in connection with an order to show cause as to why a preliminary injunction should not be granted is not a trial within the meaning of the provisions of section 583, Code of Civil Procedure,—in the instant case it is shown by the record that the procedure outlined by statute as incidental to the procuring of a preliminary injunction was not adopted or followed by the plaintiff in the proceedings had in the Superior Court. Nor does it appear that at or prior to the time the proceedings were had on January 18 and 19, 1932, the plaintiff was seeking to procure the issuance of a preliminary injunction, or that the plaintiff intended to do anything other than to proceed to a trial on the merits. The hearing date in the action was secured by means of a motion to set “for trial”; on the date of trial, January 18, 1932, as above has been indicated, the parties were present in court; and several proposed witnesses for the plaintiff likewise were in attendance. Thereupon, the plaintiff proceeded with the production of evidence in support of the allegations of the complaint; and in the course thereof one of its officers gave testimony in connection with which he identified two photographs as exhibits in the case. And although the consent order which was issued by the court on stipulation of the parties was subsequently referred to, by both the court and counsel, as a “preliminary injunction”,—as far as the statutory procedure is concerned with respect to procuring the usual preliminary injunction, the order was not made pursuant to such proceedings. Contrary to the situation which prevailed in the case entitled Superior Oil Co. v. Superior Court, supra, in the instant case no hearing was had on an order to show cause. In the cited ease no oral evidence was introduced or permitted at the hearing, but the court required the parties to make their showing by affidavits.

The record further shows that it was the contention of the respondent Superior Court that the proceedings held on January 18 and 19, 1932, amounted to a partial trial of the action on the merits. In that connection it is argued that the five-year limitation in which an action must be brought to trial after filing of a complaint, as provided for by section 583, Code of Civil Procedure,—except where the parties have stipulated that the time may be extended,—was not applicable to the circumstances shown to have existed in this case and, therefore, that the court’s orders denying the motion to dismiss were not improper. Under the authorities to be cited hereinafter, the conclusion which was reached by the trial court must be upheld.

In an action for an accounting, entitled Mussat v. Superior Court, 16 Cal. App. (2d) 291 [60 Pac. (2d) 323], a referee had been appointed to take such accounting; the cause was set for trial and on the date thereof was continued for further trial, at which time the referee’s report was offered and he testified as a witness; documentary evidence also was received; but thereafter the appointment of the referee was set aside and his report was rejected. Under those circumstances, it was held that a motion to dismiss the action because of failure to bring it to trial within the statutory period of five years had been properly denied. There the court said: “We are satisfied that these partial hearings were sufficient to take the case out of the statute though it may be conceded that, aside from the documentary evidence received, the proceedings may not have contributed materially to a final determination of the issues because of the subsequent rejection of the referee’s report. In Mercantile Investment Co. v. Superior Court, 218 Cal. 770 [25 Pac. (2d) 12], . . . it was held that when a case had been partially tried within the five-year period the statute would not require a dismissal. In Miller & Lux, Inc., v. Superior Court, 192 Cal. 333, 342 [219 Pac. 1006], it was suggested that plaintiff could have avoided the statute by merely having one witness sworn before a continuance was granted beyond the five-year period. Upon these authorities the trial court properly denied the motion to dismiss. ’ ’

To the same effect is the case entitled Krasnow v. Superior Court, 15 Cal. App. (2d) 141 [59 Pac. (2d) 442], where the petitioner sought a rehearing following the denial of a petition for a writ of prohibition to restrain the Superior Court from proceeding with the trial of an action, and where the matter was partially tried a little less than two years after the complaint was filed. There, also, the court said: “That the question before this court has been squarely decided by the Supreme Court appears from the following excerpt which we take from the opinion in the case of Mercantile Investment Co. v. Superior Court, supra, to-wit: 1 There is an additional reason, applicable alike to all the petitioners herein, suggesting the denial of a writ of mandate to compel a dismissal. That portion of section 583, supra [Code Civ. Proc.], relied on by petitioners, has application to such cases only as are not brought to trial within five years after answer filed. The chronological history of the cause which it is here sought to have dismissed shows that the action was commenced November 5, 1924, and was partially tried on April 12, 1926, within two, years after its commencement. The mandatory provisions of section 583, supra, are therefore without application. . . . The cause which it is here sought to have dismissed was tried, though only partially, within the five-year period. The section is without application to the circumstances with which we are here confronted. It is not our province to read words into the statute in order to cause it to cover a situation where there has been a trial, though incomplete, within five years . . . ’ Here the cause has been partially tried within the five-year period, just as was had in the ease passed upon by the Supreme Court, supra.” (Emphasis added.) See, also, Allyne v. Superior Court, 200 Cal. 661 [254 Pac. 564]; Mercantile Invest. Co. v. Superior Court, 218 Cal. 770 [25 Pac. (2d) 12], and Miller & Lux, Inc., v. Superior Court, 192 Cal. 333, 342 [219 Pac. 1006].

With regard to the further contention of the petitioners herein to the effect that even if it be assumed that the case had been partially tried so that the five-year limitation provided for in section 583, Code of Civil Procedure, would not be considered applicable to the circumstances of this case,—nevertheless, it should be held that under other provisions of that section, the Superior Court had abused its discretion in that regard by not ruling that the plaintiff had failed to prosecute the action with reasonable diligence. However, it appears from an excerpt of the proceedings had on January 18, 1932, and which is made a part of the instant petition, that the testimony given by the vice-president of the plaintiff corporation was to the general effect that offensive odors, smoke and dust were emitted during the operation of the plant of the defendants and had entered the plaintiff’s place of business to such an extent as to constitute a nuisance • also that the street on which both the asphalt plant, and the plaintiff’s place of business abutted ha,d been allowed by the defendant city to become congested with automobile trucks used in connection with the asphalt plant to such an extent as to hamper or interfere with the conduct of the plaintiff’s business. Following the introduction of that testimony, and when the hearing was resumed on January 19, 1932, counsel for the defendant city stated that the defendants were willing to stipulate that the operation of the asphalt plant might be eh joined,—one of the reasons therefor being that the plant as then equipped was no longer in operation, but was in the course of being dismantled, preparatory to the installation of new machinery or equipment, ‘ ‘ for the avowed purpose of taking care of any dust or smoke nuisance that has heretofore occurred in the operation of the plant”; that the defendants were ready and willing to offer evidence to that effect, and were ready to “allow any order of this court to be made enjoining the operation of this plant under its present condition; [or to] abate the thing absolutely as far as its present method of operation is concerned”. It was also stated that the city had nothing to gain by trying the action, as it was not then operating the plant, and that it desired to avoid further court costs. In the light of the stipulation that was thereupon entered into by the parties in the Superior Court action, and considering the various court proceedings that had taken place in the course of the litigation, together with the reasons asserted by the city for desiring that the said stipulation be entered into,—as well as the further fact that the cause then pending before the court was an equitable action,—it cannot be said that the court abused its discretion in denying the motions to dismiss.

Nor is it the opinion of this court that the petitioners may now complain of the fact that no bond was filed at the time the injunctive order was entered. In view of the facts and circumstances which gave rise to the execution of the stipulation, and considering the length of time which had elapsed during which no complaint was made by the petitioners concerning the lack of any bond, they must be deemed to have waived any rights which theretofore they may have had in that regard.

The demurrer is sustained, the alternative writ discharged and a peremptory writ denied.


author: SHENK, J. EDMONDS, J., Dissenting. CURTIS, J., Dissenting.

text:
    [Sac. No. 5143.
    In Bank.
    January 8, 1940.]
    J. E. VOTAW, Respondent, v. FARMERS AUTOMOBILE INTER-INSURANCE EXCHANGE et al., Appellants.
    James W. Hughes and J. Joseph Sullivan for Appellants.

      Lasher B. Gallagher, W. H. Stammer, Galen MeKnight, Morgan J. Doyle, J. Joseph Sullivan, Bronson, Bronson & McKinnon, Finlayson, Bennett & Morrow and Henry L. Knoop, as Amici Curiae, on Behalf of Appellants.
    J. Calvert Snyder, Ralph McGee, Harold Raines and T. P. Wittschen for Respondent.
   SHENK, J.

The defendants have appealed from an adverse judgment in an action on an insurance policy.

The plaintiff, as the owner of an automobile, was insured against so-called public liability by a policy issued February 6, 1931. The defendant insurance companies were the insurers. After the policy was issued the plaintiff sold the automobile to one Kin on an oral contract of conditional sale under which Kin paid a portion of the purchase price and received possession of the car. The plaintiff retained both the certificate of ownership and the certificate of registration which had been issued to him pursuant to the California Vehicle Act. (Stats. 1923, p. 517, as amended.) Neither the plaintiff nor Kin made a report of the sale to the department of motor vehicles, as required by the statute. Such was the status of the several parties on June 3, 1933, when the automobile, in the possession of and being operated by Kin, caused personal injuries to one Bunch, who • sued the plaintiff and Kin for damages for alleged negligent operation of the car. Judgment was rendered against Kin in the sum of $4,341.27 and in favor of Mr. Votaw. On appeal by the plaintiff therein Mr. Votaw was held to be equally liable in that amount on the ground that no notice of the sale had been given as required by law and that Mr. Votaw continued to be liable for injuries to a third person under the provisions of section 17143/4 of the Civil Code. Judgment was directed accordingly. (Bunch v. Kin, 2 Cal. App. (2d) 81 [37 Pac. (2d) 744].) Upon the issuance of execution, Mr. Votaw satisfied the judgment and brought the present action to recover the amount paid by him.

By the terms of the policy as originally issued the defendants herein were relieved from liability “if the interest in the automobile described herein is at any time other than sole and unconditional ownership”. The defendants eon-tend that upon the sale to Kin the insured ceased to possess the ownership required by the provisions of the policy. Much argument is addressed to that point, but it is unnecessary to consider it because of our conclusion that the judgment in any event should be affirmed.

Prior to the accident involved in Bunch v. Kin, supra, the defendants sent to Mr. Yotaw a rider having the heading “Extended Coverage (omnibus clause) ”, to be attached to and to become a part of the policy. The pertinent portions of that rider read as follows:

“It is made a condition of the policy to which this endorsement is attached that, beginning at noon, standard time, January 1, 1933, at the address of the named insured stated herein, the insurance granted to the named insured under Part II relating to Property Damage and Public Liability and subject to all the terms, conditions and limitations of the policy, shall also inure to the benefit of any person or persons while riding in or legally operating the automobile described herein, and to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named insured.”

In transmitting the foregoing endorsement or omnibus clause the defendants addressed a letter to Mr. Yotaw in which it was stated:

“We are enclosing an endorsement form which you will please attach to your policy. It is for the purpose of broadening the terms of the same to meet present automobile driving conditions. This endorsement provides for the extension of insurance under your policy to others who may be driving your ear (with your permission), and gives to them all the protection afforded you by your policy. It also provides for compliance with the Owners Responsibility Laws of the various states in which the Exchange operates or in which you may be traveling at the time of an accident involving your insured car. There will be no additional charge for the extension of this coverage. In granting the extension of this coverage the Governing Board of the Exchange is keeping to the policy of providing its members with adequate coverage to meet the various changes in laws and conditions affecting the driving of automobiles.”

It is the contention of the defendants that the provisions of the rider had no effect upon the coverage of the original policy for the reason that the terms of the rider were to be “subject to all the terms, conditions and limitations of the policy”, including the sale and unconditional ownership clause.

The plaintiff contends that the purpose of the rider was fairly expressed by the letter of the defendants in transmitting it; that such purpose was to “broaden the terms” of the policy “to meet present day driving conditions”, and to make the “endorsement” cover “Owners Responsibility Laws of the various states in which the Exchange operates”, and that this “extension of coverage” was to furnish the insured with protection “to meet the various changes in laws and conditions affecting the driving of automobiles”.

The letter of transmittal undoubtedly described the purpose and effect of the omnibus clause correctly, at least in so far as it applies to the facts in this ease. By its terms the rider was intended to protect the insured in the event that he be held liable under any “Owners Responsibility Laws” of the states in which the defendants operated, which would include this state. If the language of the rider did not have that effect, it was meaningless.

It should be noted that section 171414 of the Civil Code had recently been enacted (1929) and was, very significantly, an “Owners Responsibility Law”, as reasonably contemplated by the omnibus clause. That section made it possible to impose liability by reason of ownership of the mere legal title of the car provided at the time of the injury the car was being operated with the consent of such owner. There can be no doubt that at the time of the accident the automobile in question was being operated by Kin with the consent of the plaintiff. (Sly v. American Indemnity Co., 127 Cal. App. 202 [15 Pac. (2d) 522]), and it had been established by final judgment that the plaintiff was “legally responsible” for such operation, notwithstanding the fact that he had contracted to sell it and had delivered it to Kin.

The effect of the omnibus clause was to modify in favor of the insured the terms of the original policy. Instances where this result has been declared are cited in the briefs. For example, the case of Firkins v. Zurich General A. & L. Ins. Co., 111 Cal. App. 655 [295 Pac. 1051], involved the public liability provisions of a policy which provided that said policy should not cover “in respect of any automobile . . . while driven or manipulated by any person . . . under sixteen years of age in any event”. An endorsement attached to the policy provided: “The policy to which this endorsement is attached is hereby extended to apply to any person . . . legally responsible for the operation thereof, provided such use or operation is with the permission of the named insured, or if the named assured is an individual,' with the permission of an adult member of the named assured’s household ...” The accident occurred while the car was being operated, with the permission of the insured, by his fourteen-year-old son. The insurance company denied liability because of the age of the driver. In passing upon the effect of the rider the court said: “There appears to be no difficulty in reconciling the language of the policy with that of the rider on the subject of liability on account of the age of the chauffeur. It may be reasonably construed to mean that the surety company shall not be liable upon the policy ‘while [the machine was] driven or manipulated by any person . . . under sixteen years of age’ unless such minor was operating the car ‘ with the permission of an adult member of the assured’s household ’, in which event the company is liable. To construe the language of this instrument otherwise would defeat the apparent intent of the parties and render the quoted language of the rider valueless.” A like result was reached in Swift v. Zurich General A. & L. Ins. Co., 112 Cal. App. 709 [297 Pac. 578], where it was held that a policy providing that coverage should not apply when the car was being operated by a person under sixteen years of age was superseded by a rider attached to the policy which provided that the coverage was extended to apply to any person legally responsible for the operation of the car with the owner’s consent.

It must be conceded that the omnibus clause here under consideration, together with the letter of transmittal, rendered the contract of insurance as a whole ambiguous and consequently subject to construction, and that this ambiguity was caused by the insurer. Any fair and reasonable interpretation of the original contract as modified by the rider leads to the conclusion that the insured would be protected against any change in the laws of the state with reference to “Owners Responsibility”, such as the enactment of seetion 1714]4 of the Civil Code, especially when considered in connection with sections 45 and 45% of the California Vehicle Act in force at the time of the accident. Furthermore, any doubts arising by reason of ambiguities caused by the insurer must, under familiar rules of construction of insurance contracts, be resolved in favor of the insured.

The judgment is affirmed.

Houser, J., Gibson, J., and Waste, C. J., concurred.

Carter, J., deeming himself disqualified, did not participate.

EDMONDS, J., Dissenting.

In my judgment, the decision holding the insurer liable is based upon an erroneous construction of the contract between the parties. Moreover, it passes over, as unnecessary for determination, the question whether the named insured was the sole and unconditional owner of the automobile at the time of the accident which occasioned the present litigation. In effect, the court holds that regardless of the insurer’s contract that it will pay the named insured’s obligations only so long as the specified ownership continues, it is liable under a supplemental agreement which was made subject to all the terms, conditions and limitations of the policy.

The endorsement provides that “the insurance granted to the named insured . . . and subject to all the terms, conditions and limitations of the policy shall also inure to the benefit of any person or persons while riding in or legally operating the automobile described herein and to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named insured”. By this addition to the policy the insurer extended the original coverage to include persons other than the insured; that is to say, so long as the policy was in effect “and subject to all the terms, conditions and limitations” of the contract, the insurer agreed to indemnify any third person driving the automobile or responsible for its operation with the permission of the named insured. As stated by the appellant in its letter transmitting the endorsement, it “provides for the extension of insurance under your policy to others who may be driving your car (with your permission) and gives to them all the protection afforded you by your policy”.

The two insuring agreements are separate and distinct provisions embodied in the one contract. By the policy as originally written the named insured was the only person insured against loss. Under the endorsement the insurance was extended to protect any unnamed person using the automobile or being responsible for its operation under specific conditions. It provided that the insurance granted to the named insured should also “inure to the benefit of” certain other persons, or, in other words, that such insurance should devolve by law as a right and be available to anyone who came within the specific conditions. But it gave the named insured no rights which he did not have before and the added protection was" specifically made “subject to all the terms, conditions and limitations of the policy ’ ’.

It is this provision of the omnibus clause which distinguishes the present case from Firkins v. Zurich General Acc. & L. Co., 111 Cal. App. 655 [295 Pac. 1051]. There was no dispute presented by that case concerning who was insured at the time of the accident, but the controversy was whether the judgment creditor of the named insured could recover against the insurer because of an accident which occurred when the insured’s automobile was driven by a fourteen-year-old boy. The policy excluded coverage when the automobile was driven by any person under sixteen years of age. By the endorsement coverage was extended to “any person” using it with the permission of the named insured. It was held that this provision made the insurer liable to the plaintiff because at the time of the accident the automobile was being operated with the insured’s consent.

The action of Swift v. Zurich General Acc. & L. Ins. Co., 112 Cal. App. 709 [297 Pac. 578], was brought by a named insured, against whom judgment had been rendered, against the insurer. The policy included an endorsement identical with the one before the court in the Firkins case. It was held that the insured might recover the amount of the judgment which was awarded because of an accident in which a minor was driving the automobile with her consent, notwithstanding the age limitation. The recovery was not upon the extended coverage agreement but Under the ordinary policy terms. Because of statutory provisions, the insured was liable for the damages resulting from a collision which occurred while the automobile was driven by a minor with her consent, and the court held that the provision limiting coverage to persons under sixteen years of age had been superseded by the endorsement which extended insurance to any person without restriction.

It is difficult to see the logic of this reasoning. Had the judgment been against the minor driver, as the endorsement applied to “any person” without limitation as to age, then he could recover against the insurer. But the court measured the liability of the insurer to the insured by reading into the terms of the contract under which it agreed to protect him, provisions concerning insurance granted to a third person, one driving the automobile with the consent of the insured.

However, that presents a situation entirely different from that of the plaintiff in the present case who must recover if at all as a person insured by the omnibus clause but not by the policy. Here there is no inconsistency or ambiguity between the two insuring agreements. “Where the terms are plain and explicit and the meaning clear, courts indulge in no forced construction in order to cast a liability upon the insurer which it has not assumed.” (14 Cal. Jur. 446; Maryland Cas. Co. v. Industrial Acc. Com., 209 Cal 394, 395 [287 Pac. 468].)

When the accident happened, Votaw was not riding in or legally operating the automobile with the consent of the named insured; it was Kin who was doing this. Under these circumstances, if the policy was then in effect Votaw was covered as the insured named in it and the extended coverage protected Kin, the driver of the car. Reading the policy of insurance and the endorsement together, it seems obvious that the same person could not be the insured under both agreements, nor could a person insured under one claim the protection afforded by the other.

On the other hand, it seems clear that the insurance was not in effect after Votaw sold his automobile to Kin. The California Vehicle Act (Stats. 1923, p. 517, as amended), in effect at that time, required that within ten days after a transfer of the title or interest of a legal owner in or to a registered automobile, the certificate of ownership be forwarded to the division of motor vehicles; thereupon the division “shall issue to the owner and legal owner entitled thereto, by reason of such transfer, a new certificate of registration and certificate of ownership respectively . . . Until said division shall have issued said new certificate of registration and certificate of ownership as hereinbefore in subdivision (d) provided, delivery of such vehicle shall be deemed not to have been made and title thereto shall be deemed not to have passed and said intended transfer shall be deemed to be incomplete and not to be valid or effective for any purpose.”

This section does not purport to limit or restrict the ownership of an automobile. One may have record title to property and not be its owner; likewise, transfer of the legal title to property may not have any effect upon the ownership. The statute expressly recognizes this distinction in providing for a “certificate of registration” to the “owner” and a “certificate of ownership” to the “legal owner”, and affects only the legal title to an automobile as distinguished from equitable ownership of it. (See Sly v. American Ind. Co., 127 Cal. App. 202, 207 [15 Pac. (2d) 522] ; Swing v. Lingo, 129 Cal. App. 518 [19 Pac. (2d) 56] ; Kenny v. Christianson, 200 Cal. 419 [253 Pac. 715, 50 A. L. R. 1297] ; Pendell v. Thomas, 95 Cal. App. 33 [272 Pac. 306]; Goodman v. Anglo Cal. T. Co., 62 Cal. App. 702 [217 Pac. 1078] ; 23 California Law Review, 557, 562.) Therefore, although by Mr. Votaw’s failure to comply with the provisions of the California Vehicle Act, supra, the legal title remained in him, yet Mr. Kin acquired an interest in it which, according to the law as I read it, relieved the insurer from liability under its contract in the circumstance shown in this case.

The respondent lays great stress upon the statement in the insurer’s letter concerning the endorsement that it “provides for compliance with the Owner’s Responsibility Laws of the various states in which the exchange operates, or in which you may be traveling at the time of an accident involving your insured car”. This comment is not an insuring agreement and may not be construed accordingly. If it may properly be considered for any purpose it adds nothing to the plaintiff’s cause of action.

In California the owner of an automobile is liable for the death or injury of a person or for damage to property oceasioned by any person using it with the permission, express or implied, of such owner. (Sec. 171414 Civ. Code, now Vehicle Code, sec. 402.) Under this statute, which is substantially the same as those of many other states, responsibility is limited to the amount of five thousand dollars for the death of or injury to one person in any one accident. It also provides “that in any action against an owner on account of imputed negligence as imposed by this section, the operator of said vehicle whose negligence is imputed to the owner shall be made a party defendant provided personal service of process can be had upon said operator within this state, and upon recovery of judgment, recourse shall first be had against the property of said operator so served”.

Under this statute the operator remains primarily liable for all damages suffered as a result of his negligence. The owner has a limited responsibility, which is secondary in the sense that execution of a judgment shall first be levied upon the property of the operator. The ability of the operator whom an owner has allowed to drive his car to respond in damages is, therefore, of much interest to the owner in many ways. Undoubtedly, the desire of owners to make certain that any persons to whom they entrust their automobiles have insurance coverage in their own right leads insurers to adopt the omnibus clause as a standard form. By a policy containing that clause the owner has provided insurance protecting any person driving his automobile with his permission. With such a contract in force, he has complied with the statute by making certain that recourse may be successfully had upon the operator for any judgment rendered in an action for damages suffered by reason of the operator’s negligence.

According to these views the judgment should be reversed with directions to enter judgment for the defendant.

CURTIS, J., Dissenting.

I concur in the dissenting opinion of Mr. Justice Edmonds. It is conceded by the majority opinion that the plaintiff may not recover under the policy as originally written as he was not the unconditional owner of the automobile at the time of the accident, he having disposed of the automobile to Kin under a conditional contract of sale. The right of plaintiff to recover is accordingly predicated solely upon the terms of the rider issued by the insurer and the letter written to the insured enclosing the rider. By the rider the terms of tlie policy are made to inure to the benefit of all persons operating the automobile “With the permission of the named insured”. By no reasonable construction of this language may it be made to refer to the owner of the car as it is specifically limited to those persons driving the car with the permission of the owner. That it was intended by the rider to broaden the terms of the policy so that it would include third persons and third persons only is made clear by the terms of the letter which definitely states that the rider, or endorsement as it is called by the writer of the letter, provides “for the extension of insurance under your policy to others who may be driving your ear (with your permission).” I am unable to see how this language which purports only to extend the terms of the policy to third persons can be construed as a waiver by the insurer of the terms of the policy which relieve the insurer of liability to the owner of the car if the latter’s interest is at any time other than a sole and unconditional ownership.


author: CURTIS, J.

text:
    [Sac. No. 5324.
    In Bank.
    January 17, 1940.]
    TYRE H. WATERLAND, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY et al., Respondents.

      Busick & Busick and O. F. Meldon for Petitioner.
    Johnson & Curtright, P. IT. Johnson, C. K. Curtright and Charles A. Bliss for Respondents.
    Evan J. Hughes, as Amicus Curiae, on Behalf of Respondents.
   CURTIS, J.

The sole question presented upon this application for a writ of prohibition is whether the superior court, sitting in probate, has the jurisdiction to determine, as an incident to the settling of a final account of an executor, who previous to the rendering of said account has filed his resignation as executor, title to certain personal property formerly owned by the decedent, but claimed by the said executor as his own personal property by virtue of the fact that said personal property consists of a fund on deposit in a joint tenancy account in the names of the decedent and the executor. Or to phrase the question differently, does the filing of a resignation by an executor, who claims property in his individual capacity adversely to the estate of which he is executor, divest the superior court sitting in probate of jurisdiction to hear and determine, upon the settlement of his final accounts, title to personal property claimed by the executor, for the purpose of determining whether said executor should be required to account therefor?

The facts which give rise to the present proceeding are as follows:

Laura Antoinette Grafmiller died on the 24th day of March, 1937, leaving an estate in the county of Sacramento, and in the county of Alameda, variously estimated as of the value of about $20,000. On the 12th day of April, 1937, petitioner, Tyre H. Waterland, was appointed the executor of the last will of said decedent, and letters testamentary were issued to him. He thereafter duly qualified as such executor and entered upon his duties as such executor. Thereafter, on May 4, 1937, having become involved in a controversy with the heirs and devisees of said decedent over his claim of ownership in his own right of a bank account in the sum of $9,052.47, on deposit in the Capital National Bank of Sacramento, in a joint tenancy account in the names of himself and the decedent, he filed his written resignation as executor with the court. On the same day, Albert E. Stearns, who had been named as alternate executor in the last will and testament of said decedent, filed a petition for his appointment as executor. At or about the same time, Annie Gertrude Van Tine and Ella May Tuttle, residuary legatees under the last will and testament of decedent, filed a petition in said superior court seeking the removal of said Waterland as executor of said will on the ground of fraud and his asserted adverse interest in said fund. Thereafter, Waterland attempted to recall his resignation as executor, and resisted the application of Stearns and the two residuary legatees for his removal. The probate court refused to revoke the letters testamentary theretofore issued to Tyre H. Waterland, and two appeals were taken from said order. One appeal was taken by Albert E. Stearns from the order failing to appoint him as alternate executor of said will, and the other appeal was taken by Annie Gertrude Van Tine and Ella May Tuttle from the order refusing to revoke the letters testamentary already issued to Tyre H. Waterland. In the opinion of the District Court of Appeal, Third Appellate District, written by Justice Plummer, deciding both appeals (Estate of Grafmiller, 27 Cal. App. (2d) 253 [81 Pac. (2d) 181]), the court held that, although under the common law an executor had no right to resign or relinquish his position without having first received permission of the appointing power, by virtue of the enactment of section 520 of the Probate Code, the right to resign was conferred upon an executor, and such resignation became effective without the necessity of its being accepted by the probate court, and was not thereafter subject to withdrawal. The court further held that, a written resignation having been filed by the executor, the only remaining power of the probate court was the power, under said section 520 of the Probate Code, to compel a rendition of an account by said resigning executor and to appoint a successor. The opinion concluded with the following direction to the probate court: “The cause is remanded for further proceedings in accordance with the provision of section 520 of the Probate Code relative to enforcing a settlement of his accounts by the respondent Waterland, and the appointment of his successor.” During the pendency of the appeal, Waterland had continued to act as executor of the will of the decedent, and on December 29, 1937, had filed an account entitled, “Final Account of Executor and Petition for Final Distribution of Estate.” The decision of the appellate court was rendered on June 23, 1938, and on August 26, 1938, Albert E. Stearns was appointed executor of the will of Laura Antionette Grafmiller, deceased. Thereafter on September 30, 1938, Waterland filed a supplemental account, entitled, “Supplemental Account of Tyre H. Waterland, as executor of the estate of Laura Antoinette Grafmiller, deceased.” Exceptions to said accounts were filed by Albert E. Stearns. On October 14, 1938, Water-land filed another account entitled, “Account of Tyre H. Waterland, formerly executor of the Estate of Laura Antoinette Grafmiller, deceased.” Exceptions to these three accounts were filed by Albert E. Stearns, on October 17, 1938. All the accounts filed by Waterland failed to make any mention of the bank account of $9,052.47 claimed, by the residuary legatees and by Stearns, as executor, to be part of the estate of said decedent. All of the exceptions to the accounts of Waterland specified his failure to account for this sum as one of the grounds for the objections to the accounts. On October 27, 1938, a demurrer to said exceptions and a motion to strike was filed by Waterland, based upon the ground that the probate court was without jurisdiction to determine title to the personal property in controversy. On November 7, 1938, Stearns, as executor, filed another document entitled, 1 ‘ Petition for an Order Requiring Former Executor to Account for Funds of Estate.” Thereafter, on December 8, 1938, Waterland filed a demurrer to said petition and motion to strike upon the ground that the probate court was without jurisdiction to determine title to said bank account.. On November 12, 1938, a minute order entitled, “Objections to Former Executor’s Account— Demurrer to Petition Requiring Former Executor to Account for Funds and Motion to Strike Out, Etc.”, was made and entered by the trial court wherein the demurrer was overruled, and the motion to strike out portions of said petition was denied. The minute order ended with the direction that the “question of delivery of certain estate property now in possession of former executor Waterland”, be continued to a later date.

On December 21, 1938, Waterland filed his answer to said petition for an order requiring him, as former executor, to account for funds of the estate, theretofore filed by Albert E. Stearns on November 7, 1938. On February 16, 1938, he sought a writ of prohibition to restrain the probate court from proceeding with the hearing of said petition upon the ground that as he is now a stranger to the estate, the superior court, sitting in probate, is without jurisdiction to determine title to this personal property claimed by him in his own right adversely to the estate. No mention of the exceptions to said accounts previously filed by Stearns, as executor, is made by Waterland in his application for the writ of prohibition.

Petitioner’s application for said writ of prohibition is based upon the premise that by the filing of his resignation, he immediately became a stranger to the estate, and he relies upon the rule in California that title to property cannot be tried in probate proceedings as between the estate, or heirs or devisees, and a stranger to the estate. It is conceded that this rule is well settled in California. (Ing hilleri’s Estate, 27 Cal. App. (2d) 664 [81 Pac. (2d) 568] ; McCarthy v. McCarthy, 205 Cal. 184 [270 Pac. 211]; Bauer v. Bauer, 201 Cal. 267 [256 Pac. 820] ; Estate of Wenks, 171 Cal. 607 [154 Pac. 24] ; Estate of Klumpke, 167 Cal. 415 [139 Pac. 1062].)

Respondents oppose said application for a writ of prohibition upon the premise that the probate court has jurisdiction to settle the final account of an executor and until such account is settled an executor is amenable to the authority of the probate court. Respondents rely upon the rule that the superior court, in the exercise of its probate jurisdiction, may try and determine, as an incident to the final account of an executor, title to personal property claimed by the executor in his own right adversely to the estate. This rule is equally well settled in California. (Stevens v. Superior Court, 155 Cal. 148 [99 Pac. 512] ; Bauer v. Bauer, supra; Estate of Roach, 208 Cal. 394 [281 Pac. 607]; Estate of Ginsberg, 11 Cal. App. (2d) 210 [53 Pac. (2d) 397] ; Estate of Vucinich, 3 Cal. App. (2d) 235 [44 Pac. (2d) 567].) Does the fact that the executor, prior to rendering his final account, files his written resignation with the court, change the rule ?

We are satisfied that the answer is in the negative. Section 520 of the Probate Code is the section which governs the procedure relative to the resignation of an executor and defines his liability upon resigning. The express language of this code section compels the conclusion that the superior court, sitting in probate, retains jurisdiction to settle the final account of an executor after his resignation as executor. It follows as a necessary concomitant thereto, that the said court retains jurisdiction to determine all questions necessary to be determined as an incident to the final settlement of said executor’s account. Section 520 of the Probate Code reads as follows: “An executor or administrator may resign his appointment at any time, by a writing filed in the superior court, to take effect upon the settlement of his accounts. If, however, by reason of any delay in such settlement, or for any other cause, the circumstances of the estate or the rights of those interested therein require it, the court, at any time after the tendering of the resignation, may revoke the letters of such executor or administrator and appoint in his stead an administrator, either special or general, or with the will annexed, in the same manner as is directed in relation to original letters of administration. The liability of the outgoing executor, or administrator, or of the sureties on his bond, shall not in any manner be discharged, released, or affected by such resignation or appointment, but shall continue until the executor or administrator has delivered up all the estate to the person whom the court shall appoint to receive the same.” The provision that his resignation shall take effect upon the settlement of his accounts, can mean nothing else than that his resignation shall not become effective prior to the settlement of his accounts. It is true that there is language in Estate of Grafmiller, supra, which may be construed to mean that the resignation of an executor becomes effective immediately upon the filing of his written resignation. Having in mind the fact that the question there involved was whether the resignation of an executor required an acceptance by the superior court as a condition precedent to its becoming effective, and the question of whether the executor retained the right to withdraw his resignation prior to an acceptance by the probate court, it is apparent that the language employed in said opinion merely meant that the filing of the executor’s resignation established the fact of his resignation, and deprived him of the power, from said time of filing his resignation, to withdraw his resignation. Said language was not specifically directed to the solution of the problem of the exact time the resignation became effective. If it was intended to imply that the resignation become effective for all purposes at the moment of its filing, such holding is directly contrary to the express language of section 520 of the Probate Code which provides that said resignation is “to take effect upon the settlement of his accounts”.

It is also to be noted that the last sentence of said section 520 of the Probate Code provides that the liability of a resigning executor shall not in any manner be discharged, released, or affected by such resignation but shall continue until the executor has delivered up all the estate to the person whom the court shall appoint to receive the same. As an incident to a determination of whether or not the executor is turning over “all the estate” to his successor, it is necessary for the court to determine whether or not the fund claimed by the executor belongs to him in his own right or belongs to the estate. We can see no escape from the conclusion that the probate court is the reasonable and logical forum for the determination of this question.

It may well happen that a resigning executor’s active duties as executor may cease immediately upon the filing of his resignation, in which event he would not be entitled to executor’s fees for work performed subsequent to the filing of said resignation. But once having accepted the duties and responsibilities, and privileges, of an executor, he cannot thereafter by filing his resignation, oust the superior court, sitting in probate, of jurisdiction to hear and settle his final accounts. By express provision, section 520 of the Probate Code provides otherwise.

As before pointed out, petitioner seeks the writ of prohibition only to restrain the probate court from hearing the petition to compel an accounting filed by Albert B. Stearns, as executor, on November 7, 1938, and wholly ignores the exceptions to said accounts theretofore filed by Stearns, as executor. It is apparent from the answer filed by the respondents that the filing of the petition to compel an accounting by the executor Stearns was a part and parcel of the objections to the final account of said resigning executor and was not intended to initiate a separate proceeding. It is also apparent from the title of the minute order made by the probate court on December 12, 1938, that the probate court was considering said objections to the accounts of Waterland as executor and the petition to compel an accounting by him at one and the same time. The title to said minute order, as previously quoted, is as follows: “Objections to Former Executor’s Account—Demurrer to Petition Requiring Former Executor to Account for Funds, and Motion to Strike Out, Etc.” This court in determining the merits of the application for the writ of prohibition, is, of course, not bound by the petitioner’s statement of the facts when the record shows a different state of facts.

To sum up: The superior court sitting in probate, is vested with jurisdiction to try and determine, on the settlement of the accounts of a former executor, questions of title to personal property claimed by such former executor, adversely to the estate, and the resignation or removal of such executor does not divest the superior court, sitting in probate, of jurisdiction as long as the matter of said accounts remains pending.

The writ of prohibition is denied.

Shenk, J., Edmonds, J., Gibson, J., Carter, J., and Waste, C. J., concurred.