*1 prior August, 1945, at which ceased work- time plant unemployment in- ing in a defense and started draw August, during period surance. Thereafter between July 1946, de- and the death of the deceased on averaged petitioner’s $70 support ceased’s contributions to living per month, petitioner’s which was less than one-half expenses. typical
These show “partial” admitted facts case of de pendency commission, as found and it seems clear finding of “entire” or dependency “total” had been finding (London made, such could not have been sustained. Com., Cal.App.2d v. Industrial Acc. Guar. etc. Co. ; Com., Cal.App.2d Acc. Tuttle Industrial 7] J., Edmonds, concurred. Apr. 29, 1948.] F. No. 17507. In Bank.
[S. (a Corporation), BARBER COLLEGES, INC. MODERN Appellant, v. EMPLOYMENT STA CALIFORNIA al., Respondents. et BILIZATION COMMISSION *2 Ralph Robinson Appellant. for Attorneys Kenny, Howser, General, Robert W. Fred N. Linn, Johnson, A. H. Maier Clarence Doris and Charles W. Attorneys Deputy General, Respondents.
GIBSON, C. proceeding J. in mandamus com This is pel respondent findings commission to vacate its cer students, peti tain bookkeeper proprietor tioning corporation meaning employees within the Unemployment (Stats. 1935, p. 1226; 3 Insurance Act Deer ing’s Laws, amended) cancel 8780d, Gen. Act and to charges made of these find virtue ings. peti general The trial court sustained demurrer amend, petitioner appeals tion without leave and the judgment for respondent. petition alleges that E. M. the sole owner Robinson is petitioning corporation, never issued assets, and capital directors, stock and has no officers college corporation operating Robinson is a barber “as if no *3 according had ever been formed.” Students are admitted to requirements Board of Barber Examiners can the the regulations. only dismissed violation of the board’s be for present regular at required The students are not to be hours may they until instruction please but attend as the course of degree After have a certain completed. the students reached they practice patrons proficiency are allowed to on who a fee to Out these fees commis- pay petitioner. a small the form as a credit paid to each student the of cash or sion is may equipment purchase which the student the against part- services of a petitioner The has obtained the petitioner. only various bookkeeper obliged to maintain rec- who is time required regular employment. keep hours of is not to ords but respondents’ determination that challenges the petitioner The bookkeeper, are Robinson, and the em- the students E. M. act. meaning the of the within ployees however, Rob- question appeal, on is not whether this bookkeeper employees the are within inson, the students pro- or act, rather whether an action meaning of the but the respond- the a determination of ceeding judicial review of for may payment the of the contribu- prior be had board ent admitting due, petitioner the the board claims to be which tions paid any never contributions petition that it has in its the payment act. Such review in ex- advance pressly prohibited by 45.11(d) Unemployment of the follows; Act, provides part Insurance in- “No junction legal writ equitable proc- of mandate or other or any suit, ess shall issue in any action proceeding, against any court pre- this State or officer thereof enjoin vent or under this act collection of contribu- ’’ tions to be collected. petition Since the matter is before us on the com- demurrer, general mission’s presents record this case the single issue of availability of mandamus. questions fact, liability Other particularly law or beyond scope for contributions, proceeding. this dispose by
We at suggestion the outset proceeding “prevent or en not one join” the collection of contribution because relief prayed findings for is the vacation existence employer-employee relationship made the commission. judgment directing is obvious that a commission findings vacate its would in effect amount to a declaration relationship that the not exist; did commis judgment “properly sion after such could not undertake against plaintiff corporation enforce tax employer as an adjudication employer] of an defiance the latter [asserted relationship did not maintain parties.” with the other (Louis Unemployment Cal.App. Com., Eckert B. Co. v. R. 2d The Eckert case because held that quoted of the statute above for declaratory action relief cannot maintained em be to determine the existence of the relationship payment ployer-employee prior the tax. prayed Since net result of the would relief herein allegedly due, be to restrain the collection of the tax ac having purpose. (See tion must treated as Helms one Equalization, 53 .2d Cal.App Bakeries v. State Bd. of *4 422 P.2d [128 follows, in therefore, proceeding
It that this mandamus statute, prohibited and, void, unless statute is connection, appropriate writ In this it is must be denied. respondent. It pass upon a minor contention of argued action, bar for that the statute is not the to this merely declaratory of section 15 of XIII of the article provides: injunction writ That “No or Constitution. section equitable legal process or other issue mandate or shall ever any suit, any in or this proceeding action in State, any enjoin thereof, prevent officer or collec- provisions tion of tax levied under the article.” this seem, however, would that contributions under the Unem- taxes, ployment Act, Insurance nature are while They provisions not taxes levied of article XIII. they appear not specifically therein, are mentioned do not XIII general provisions within be included article to relating spe- contrary, to taxes for revenue. On the the act cifically (§19) shall held provides contributions be moneys separate apart public specific fund, from all exclusively state, funds and shall be administered con- purposes of the act. The contributions therefore for special purpose distinct from special stitute taxes for this, as other general revenues of the state. For well as pro- reasons, the constitutional see no basis which we apply can to this case. vision us to clarifying also the issue before
It will assist briefly this the contention notice at time remedy solely ground on that his mandamus entitled to inadequate. for allegedly The cases cited at law is E. e.g., (see, Mfg. Bodinson Co. v. proposition California Wolden, 935]; Lockhart v. Com., 17 Cal.2d [109 Daniels, ; 190 Cal. 319] Dufton general rule set merely declaratory of the 949]) are Procedure of the Code Civil forth section specific where no clearly to the normal situation applicable concede, may remedy We of mandamus. statute bars Un 45.11(d) were it not therefore, that in in the might lie Act, Insurance mandamus employment holding the cases case, and that is the extent stant might be cited. numerous others cited and of principle, however, application has no This instant remedy ease, expressly of mandamus has which the been remedy of suit recover has prohibited, paid and the taxes obtaining made means of expressly been the exclusive legality the assessment. decision review No our attention it has been where been held called despite express statutory pro be issued mandamus may deem merely because the court normal hibition holding satisfactory than mandamus. Such a less equivalent declaring above, statute would, as stated
725 unconstitutional; therefore, inquiry the ultimate in this case Legislature may constitutionally is whether limit the use of mandamus as it has 45.11(d) done section of Un employment Insurance Revised Statutes, Act. Unlike section (53 446, 3224 26 U.S.C.A., 3653) (restricting Stats. the use injunctions prevent taxes), of the collection of federal 45.11(d) Unemployment section Insurance is not Act merely declaratory practice equity the traditional injunction might which an granted exceptional in various just circumstances. As this Eisley court has said in Mohan, v. ante, p. 637 5], discussing arti Constitution [192 XIII, provision cle “The of the California Con much more stitution is than a mere declaration of the rules generally applicable in proceedings for injunction, mandamus, legal equitable or other relief.” The same is true sec 45.11(d) Unemployment tion Insurance Act which duplicates almost the language of XIII, article section 15. such follows cases Miller Margarine as v. Standard Nut Co., 284 422], U.S. S.Ct. L.Ed. which discuss [52 instances an injunction various under which may be according available to the common-law equity rules of restating under statutes them not relevant here. Even however, statute, under the federal the financial hardship by remitting taxpayer remedy caused to his a suit to payments recover exceptional excess not an circumstance warranting injunction (Kaus of an Huston, issuance v. 183), 120 F.2d principal ground financial distress is the urged of relief here.
Implicit
in the contention that
is un
statute
the assumption
petitioner
constitutional
has some
right
protected
constitutional
which can be
mandamus.
petitioner
The
strongly
relies
on Laisne v.
Board
State
Optometry, 19
That case held
457].
process
that under
due
clauses
the federal and Cali
Constitutions,
fornia
separation
under the doctrine of
powers in
Constitution,
our
entitled to
type
activity which,
of review of administrative
under our
practice,
provide.
present
alone
But in
mandate
could
depriving
remedy
case it is clear
deprive
process
law,
him of
mandate would not
due
right
he might
and no other constitutional
under which
claim
particular
suggested.
form of relief has been
The
judicial
process
guarantee
due
does
clause
liability
payment.
review tax
before
of a state
provide
alleged overpayments
suit
recover
proceedings
the exclusive means of
review of tax
long
unquestioned.
(Cary
Curtis,
been
(U.S.)
3 IIow.
Steinhagen
Milling
;
L.Ed.
Rice
v.Co.
576]
Scofield
(C.C.A. 5th),
Plumb,
It clear that any funda on the violation of predicated cannot be statute federal Con right protected by either the state or mental only other stitution, proceed we to consider the now purports to statute, namely, that it ground on the of attack as out jurisdiction of courts state interfere with the the superior gives the The Constitution lined in the Constitution. legal extraordinary mandate and other power courts to issue argued remedies that these VI, 5), it is (art. remedies § the court always available case power has no appropriate and that the deem them under which define, enlarge the circumstances curtail or they may issued. to dis- in the failure argument lies fallacy in this The the the grant
tinguish jurisdiction to between Except as the Constitution right to be vindicated. which is power to complete Legislature has provides, the otherwise Lowery, Delaney v. (See rights individuals. determine the rights may create new 25 no shall previously existed rights which have provide or circum- regulate power has full longer arise, and it rights, so enjoying those means of methods and scribe guaranties. constitutional with no interference long as there would is invalid we statute conclusion To reach the disapprove have to the course of for more than a decision century power given hold courts to issue (Const., VI, 5) writs of mandate art. 4b and confers §§ on parties rights unrecognized constitutional elsewhere in the Constitution. The mere statement the Constitution however, grant remedies, court has the certain does not in- rights mean that the which those remedies were protect tended to have been fixed in the as Constitution time adoption legis- of its and are thereafter immune from change regulation. lative reasoning fortified, This position wholly untenable, seen to be bearing examination on analogous authorities involving right situations to civil relief generally, right appeal, right- injunctions and the corpus. habeas (art. VI, 5) giants superior Constitution
jurisdiction cases,” except “in all Legis civil insofar places jurisdiction lature or Constitution in other courts. Notwithstanding grant constitutional over (“in remedies all cases”), civil consistently been held, in overwhelmingly majority accordance with view, *7 Legislature has complete power rights over in in may volved such actions and par either create or abolish ticular causes Thus, Langdon of action. in Sayre, Cal. v. 74 App.2d 41 57], P.2d it Code, was held that Civil [168 43.5, abolishing the promise cause of action for to breach of marry, was Hanfgarn constitutional. And in 274 Mark, v. 22 47], constitutionality N.Y. upheld N.E.2d the court [8 of a abolishing statute the cause of prom action for breach of ise, observing contrary that a “if logical decision carried its to conclusion, would stagnation result di of law and be rectly in many (274 conflict with decisions of this court.” (See p. 26.) note, N.Y. at also, 158 617; A.L.R. 32 Ill.L.Rev. 738 upholding of a similar . . statute Indiana. “. [on accept argument by in advanced those who seek to legislation validate this in leaving would result power rights courts.”].) to alter law common in the
A similar development place respect taken with in has junctions. (art. VI, formerly 5) provided The Constitution superior “original jurisdiction should have all in equity.” consistently cases it Nevertheless, has been Legislature held that power what are determine grounds equitable cir relief and when and what may granted. typical example injunctions be A
cumstances Code, -the of the Civil restated in the Code of provision is injunctions public Procedure, forbidding restrain Civil (See in a of cases. officers,held constitutional number Loftis 491].) As Superior Court, Cal.App.2d 346 P.2d v. [77 Sugar Co., Hawaiian s& 117 Cal. Spreckels was said v. Com. : [49 353] “Statutory changes perpetual. rights are are almost New equities make new under which new arise. These created cognizance. take equity, cases in of which the courts at once thereby jurisdiction equity enlarged. The of courts is not statutory by changes rights Neither is diminished when some equity and certain cases which courts once cease to exist grant power longer no arise. The entertained can [to which equity equity is not confined to court in cases cases] under the law as stood when constitution could exist equity all cases in at all times. adopted. It includes legislate upon intended as a limitation was not 381.) rights persons.” (117 p. at Cal. hand, right if be is one the other vindicated On granted Constitution, injunction an granted injunction appropriate rem- regardless of the statute right cannot edy, because the one Cal.Jur., 202.) abridge. (See p. fallacy petitioner’s position again exposed when
The
governing appeals.
law
Constitution
we consider the
and the
4b) provides
Supreme
that the
Court
(art. VI,
4,§§
Appeal
appellate
“shall have
District Courts
interpreting
In
Superior
. .
on
from the
Court.
appeal
Legislature has
the courts
held that the
provision,
have
appealable,
power to declare
statute what orders
appeal-
and,
declare,
a statute does
the order
unless
so
County
Co., 169 Cal.
(Gale
Water
v. Tuolumne
able.
Court, 21
;
Superior
v.
see Trede
P. 532]
[145
Byers
Smith,
cf.
There is no foregoing between the authorities and decisions which declare, substance, Legisla- that the ture cannot extraordinary alter the over writs prescribed by controlling the Constitution. The dis- tinction between an enlargement unconstitutional juris- diction of a court regulation rights and a mere private remedies, or the substitution of another, one be- comes obvious an examination of these decisions. Mauer Mitchell, apparently Cal. leading case, typical group. applied for a writ prohibition prevent respondent (a tax non- collector judicial officer) petitioner’s from selling property for non- payment delinquent taxes. theory Petitioner’s section 1102 of the Code of Civil Procedure made prohibition the “counterpart” of mandamus, and that mandamus since compel could be used to nonjudicial action officer, prohi- bition, counterpart, its similarly would lie restrain action by nonjudicial rejected officer. The interpretation of the code as unconstitutional, untenable and also pointing out prohibition that the writ of mentioned the Constitution is the writ law, known to the common and that its “office” or function was to restrain subordinate tribunals.
Thus, propositions opinion the stands for the incontrovertible jurisdiction particu- that the of a prohibition to issue a writ meaning long jurisdiction, lar kind of the which was estab- that, in adopted; lished at the time the Constitution was using Constitution, "prohibition” the term in the the framers courts; particular jurisdiction conferred this ldnd on certain jurisdiction and that this kind of consisted of the particular judicial power to of a lower tribunal. restrain acts even clearer when we understand that The matter becomes case, seeking in to in the Mauer restrain the really asking officer, was another nonjudicial of a acts constitutionally remedy, traditionally established defined difficulty is, however, namely, injunction. an jurisdic- give appellate courts does Constitution injunction an injunction, and that to issue to issue an tion g., (see writ, supersedeas e. guise other McCann of some 283]) Co., 4 Cal.2d Bank & Trust v. Union [47 (Mauer Mitchell, 289), v. 53 Cal. would constitute prohibition jurisdiction granted interference with the unconstitutional an enlargement courts, as an unconstitutional trial well appellate jurisdiction of the courts. Mitchell, 289, was and reinforced v. 53 Cal. followed Mauer Kenfield, 550, prohibition v. 57 Cal. where was by Camron Controller, nonjudicial another prevent the State drawing payment of certain claims. officer, warrants interpreted 1102 were declared that Again it was prohibition such a situa of writ authorize issuance enlargement tion, would be unconstitutional the statute cases, too re Supreme Court. Later jurisdiction of the discussion, repeat prop justify basic in their facts mote enlarge the Legislature cannot constitutional that the osition (see Tel. Supreme Tel. & Co. jurisdiction of the Court Pacific 1119, P. Ann. 640, 648, 652, 694 Eshleman, 166 Cal. [137 652], [dealing with writ cer 822, 50 L.R.A.N.S. 1915C Cas. ; finding enlargement] Saxton tiorari, unconstitutional but no 998], Education, 206 v. Board Cal. [deal enlarge mandate, holding no such but ing with writ of Finally, Oil v. State Co. attempted]). Standard ment was 119], principle Equal., Board presented again similar to declared in a situation statutory for review of the acts case; provision the Mauer certiorari was nonjudieial board writ of administrative ground lies to review on the writ held invalid malting ap- tribunals, acts and that the statute nonjudicial enlarge plicable attempt bodies was an jurisdiction constitutional of the court. pronouncements
It is clear that in the various therefore attempts by of our condemning courts extraordinary interfere with to issue the constitutional court; writs, the matter involved was *10 and be en jurisdiction held that could not cases such by larged, occasionally of dictum that it could way added (see Equal., not be v. curtailed Oil Co. State Board Standard of supra, Legislature sought 562). here, Cal.2d So if the had provide compel judi might that the writ of mandate lie to court, cial act of a merits particular such as a decision on the particular manifestly litigated be an action, this would enlargement nature, unconstitutional of the function scope of mandamus; Legislature and if repealed section 1102 of the of Code Civil Procedure and the other statutes dealing with mandamus, providing and substituted a statute by that no ministerial action of officers could be compelled, legislation necessarily would fall as an uncon stitutional curtailment power of constitutional to issue performance compel duty. mandamus to But ministerial where enlarge has not either to or cur jurisdiction tail the writ, change to issue the nor nature its function, or nothing regulation there is unconstitutional its either of the procedure invoking for the writs of the sub rights stantive parties and the remedies available for their legislative enforcement. The proce enactment of reasonable precedent dural invoking remedy, conditions a particular or the remedy (such substitution of one as an action at law in superior court) (such for proceeding another as a mandamus), cannot be considered an interference with the by over such remedies vested in courts Con stitution. validity of section 45.11(d) Unemployment of the In
surance Act supported by authorities, these but by also long what has accepted been public policy as the federal, governments. state and local The fear per sistent interference with public revenues, the collection of reason, whatever will destroy govern the effectiveness ment expressed has been in many judicial opinions. (See People Skinner, (18 v. supra, 349, 488, A.L.R. As said Mr. Justice Field in Dows 65], City (78 Chicago, U.S.) 108,110 Wall. L.Ed. “Any delay proceedings officer, whom
duty collecting taxes, may op derange is devolved thereby government, erations of cause serious detriment XIII, public.” policy This is carried out article 15, Constitution, applying nearly section our all of important taxes, again in 45.11(d) state Unemployment Act, repeats Insurance which the constitu prohibition against tional mandamus. policy, applicable generally,
This to taxation more even system vital in connection with the administration Unemployment unemployment insurance. The Act Insurance creation, deposits of in- expressly provides for the from the contributions, specific fund dividual which to be If paid. 25.) (See source of benefits thereafter §§ proceedings which halt collection of the tax were allowed brought payments made, would to be before the are employers delay creation placed in the hands of so be purposes It has as to frustrate the of the act. of the fund purposes these expressly declared this court been importance, procedural obstacles great public are of delay prevent fulfillment their would *11 17 Cal.2d (Abelleira Appeal, v. District Court avoided. A.L.R. 298 [109 as- allegation payment of the claims that petitioner’s The which could against will render it insolvent one it serted relevancy any tax can no have be made by express legislative provision, court, this where situation the interfering payment in advance prohibited from compliance with the statute argument that The tax. ad- which be hardship in instances is one can some cause allegations Furthermore, the only Legislature. the dressed required paid any of the sums petitioner that never show financially so when although it able do was the act strange It paid. would be have been should the contributions whereby practice were to sanction if this court indeed ob- paying taxes, the regularly refrain from taxpayer could urge that, by reason disputes, he and then ligation of which provided ordinary delinquency, remedies large the his inadequate particular in his case. liability reviewing his accept conclusion, that emphasized, It should impeding result would not petitioner position the state’s jeopardizing contributions these collection of system of security social benefits; it would also a far- have reaching and destructive effect on the administration of justice. every right formerly would mean now, It which might or in the future be enforceable mandate extraordinary right beyond writs would be a constitutional Legislature solely reach the control of prospect courts. alarming by This is made more the fact extraordinary scope clearly writs was not (See Gordon, defined at common law. An Certiorari to Ec- Court, L.Q.Rev. 208, note, clesiastical 212; 14 U.Chi.L.Rev. 270; Freund, Administrative Prop- Power Over Persons and erty, p. 261.) appears petitioner right
Since that the no under the federal or California Constitutions to obtain review liability of his tax paid before he allegedly had amount due, constitutionally provide can that his only remedy alleged is the suit to overpayments, recover prohibit can the use of mandamus in payment. advance of judgment be, follows that must hereby, and it is affirmed.
Shenk, J., Edmonds, J., J., Traynor, J., and Spence, con- curred.
SCHAUER, J. I dissent. appeal judg This is an from a ment of dismissal after sustaining order a demurrer to the petition amend; without leave to accordingly, upon appeal pleaded all of the accepted well facts must be as true. It is disputed not pleaded the facts all at employer, times was not an subject concerned contributions under act, and the assessment to be by respondent wholly illegal. collected majority opinion respondent holds commis sion has the absolute and the petitioner’s to cause summarily public assets to be sold at auction in order col illegal exaction, lect from amounting, with penalties, $3,000, claimed to over commission ar *12 bitrarily against undertook to assess it* as “contributions” assertedly January accruing 1, since under the Cali Unemployment (3 fornia Leering’s Laws, Insurance Act Gen. ego Colleges, Inc., Robinson; is the alter *Modern Barber of E. M. corporation may either or Mr. Robinson deemed to constitute be petitioner. 8780d) although, indicated, is Act above it admitted that subject any “employer” not at time an petitioner was act; is further held that the courts of this state are with- power stay any way out or in interfere with the collection though illegally even ad- assessed “contributions” mittedly “receiver- such collection will force into ship bankruptcy.” majority frankly question opinion
The states “The ., on . but rather appeal this ... . is merits] [on de- proceeding judicial whether for review of a an action or prior had respondent termination of board payment that the cannot it is admitted [which reality which the board claims of the contributions make] illegal] . . pleadings be due on to be . Such admits [but payment expressly prohibited review in advance of by Unemployment Act, Insurance 45.11(d) of the injunction provides ‘No or writ of part as follows: process any legal equitable mandate or shall other or issue suit, any against proceeding, this action State any enjoin prevent or this officer thereof to ’ ’’ sought act the to be collected. collection contributions opinion The then admits that the relief not barred Const., XIII, provision (Cal. 15) constitutional art goes may concede, therefore, on to “We that were it declare Act, 45.11(d) Unemployment not for section Insurance ...” might opinion mandamus lie in the instant case declaring then undertakes to sustain the statute tech- grant nical distinction “between right which to be vindicated.” and the [mandate] Apparently argument is that while the thesis concededly deprive cannot the courts of constitu deprive persons tionally powers vested can powers. me; That distinction is too fine invoke those (33 American holding I think words of Dean Pound 1947) p. 1094) No. his article (Nov. Bar Assoc. Journal Some Survey Show of Law: Decisions Courts “Annual says: Pound Trends,” appropriate. Mr. Dangerous Also, . swallowing up private law . . law “[P]ublic steady subjects to reflect a of the different seem reviews growth extra-legal lawless exercise of official not often with, In ... connection rise of official absolutism freedom from tendency power and to concede the widest agencies, suggests judicial scrutiny to administrative *13 change in polity our in the direction of centralized absolutism . . [p. . complacent acceptance remaking of [T]he 1097] the abrogation through Constitution or of it decision significant. ... general is in line with rejection a law and with cult of a absolute exercise of throughout Certainly the world.” the lawless assessment of contributions person subject a not act, to summary the sale petitioner’s to illegal assets collect exaction, result- ant destruction petitioner’s business, and im- the avowed potence of the courts process to interfere in the because the beyond administrative commission is equity the reach of the powers courts, of the all suggest combine that the “cult power” gained absolute exercise of has a hold in California. Petitioner has through relief from the courts petition for writ of mandate, in superior filed September, petition alleges petitioner 1945. The that corporation engaged, California with approval state, State Board Barber Examiners of this laws teaching city county the barber trade in the of San Francisco; capital no that by stock has ever been issued corporation and that one E. M. Robinson owns all of its assets operates college the barber if corporation as no had been formed; January 1, (the that since employer’s date liability began accrue, act), contributions 37 of the petitioner employed has at all times one two instructors during “employed” part-time most of the has time bookkeeper; college part that students as of their train ing barbering practice paying patrons on per and receive a centage paid by patrons; respondent of the fees such petitioner employer found that is an as defined subdivision (a) petitioner’s 9 of act* and has of section counted as employes persons: following E. (alleged M. Robinson petitioner assets, own all of and to be in fact the sole operator college), instructors, part-time two bookkeeper, who described students received above during performed for services in commissions course of petitioner ; persons contends that none of such struction that, (a) in subdivision *It should be noted as set forth of section “ ‘Employer’ (a) Any employing act, unit, means: which . . . employment ., provided prior one or more individuals . . has ... to January 1, 1946, any employing employer unit means which . . has . added.) (Italics employment or Thus, or more had ... individuals." four employes period petitioner than for the had less four of time subject controversy, it was then to the act. involved except employes therefore, the two instructors were theory employer (since that was not an under the act individuals), petitioner neither employed than four less any persons paid respondent nor collected from such respondent attempting collect contributions; (in- alleged due $3,000 as contributions over assertedly cluding penalties) interest and *14 paid employes; and its asserted should on behalf of itself have pay de- petitioner that has no funds with which the sum portion that of such sum is barred the statute manded; a act; former 45.2 of and see (§45.5 of limitations the § Proc., petitioner informed and 338); Code Civ. that § payment is upon ground alleges that that unless believes granted) (or, impliedly, made unless the relief here summary as a certificate respondent will issue commission (see 45.10) of the provided present 45.9 also under section petitioner’s public act and be sold at auction cause assets to receivership and bank- thereby forcing petitioner “into plain, speedy adequate ruptcy”; petitioner that has no prevent issuance ordinary in the of law to the course requested summary petitioner “has certificate; of the that departments Respondents and various petitioned the the al- Appeals Board to withdraw thereof, including the their petitions re- leged claim, of have been denied and all which all the administra- your petitioner has exhausted of fused, provided for under the Un- appellant provisions as tive and Regulations employment Act and the rules and Insurance various petition included the are Respondents.” Also the and circumstances allegations concerning the conditions hand petitioner college on the one relationship between bookkeeper as in- as well part-time and its students and Robinson, on the other. dividual B. M. . . appeal “The sole issue .
Respondent that on this states for holding petition that court erred is whether trial petition lie where the does mandate would not writ of spe- question view of the allege payment of the tax Unemploy- California 45.10 of the provisions cific Section stage course, demurrer, at this Of Insurance Act.” ment allegations pe- factual admits all proceeding, that respondent not contend does tition, and inasmuch for true, not establish that taken to be do alleged, facts when employer not an petitioner period involved here predicated deemed to be must be act, this court’s decision upon assumption petitioner actually por- owes no tion respondent whatsoever the sum seeks to collect. opinion, despite majority
The the nature now the issue despite before this court and remark in opinion that con-, “question liability . . . the for the ’’ beyond tributions, . scope proceeding, . . [is] in part based al- petitioner’s assertions that “The legation payment claims asserted it will against any render it insolvent . . . could be made tax . . . argument compliance with the cause statute hardship Legis- ... is one which can be addressed Furthermore, allegations lature. show that paid any although never required the sums under the act financially it was able to so when the do contributions should strange paid. have been would ... this court were practice whereby taxpayer regularly to sanction could paying taxes, urge that, by refrain from . . and . then reason large delinquency, ordinary of his provided remedies ’’ reviewing liability inadequate his particular in his case. (Italics quoted added.) The assertions are abhorrent to appraisal controversy accurate or fair this court; before *15 they assume, utterly without contrary foundation and to all presumptions controlling ruling admissions and when upon demurrer, petitioner required owed and was pay the sums by respondent, now claimed petitioner and that actually they ignore delinquent-, is fact that for the 10- year period involved, petitioner may actually (and not should presumed be to) required pay not any have been sums any whatever under the act not time, now, at delinquent any respect any they in amount; would, upon or in legally premises illogical deductions, false compel a small businessman to ruin endure financial because he has not cash with which is, to meet exaction which under rules pleading, presumptively (respondent unlawful not does urge even appeal), get otherwise on this before he can before issues, courts of this state to determine the factual there should be.
It seems to also if it me is the view of this court pleadings petitioner delinquent is liable for and paying by in respondent, contributions then in parties unequivocally should reason and fairness both time, subject so declare at than to parties rather and the courts to the burden of another suit 738
(provided prosecute able raise the funds to to re- it) cover appeal, applicable contributions which on this law, respondent rules of concedes it is not entitled to. (and expounded unchallenged As is stated with documenta- my tion) concurring opinion in Eisley Mohan, ante, in v.
p. 5], pro- P.2d my it is view that it is sounder [192 cedure, and law, general better to follow the rule many federal, jurisdictions, other and to maintain the extraordinary extraordinary remedies as when cir- available presented remedy adequate cumstances are another when provided. is not
Concerning petitioner’s contention that it is entitled ground remedy is in- mandamus on the its at law adequate, opinion recognizes that the Chief Justice Mfg. (1941), cases of Bodinson v. E. Co. Com. California 935], (1941), Cal. 2d P.2d Lockhart v. Wolden [109 319], (1923), Cal.2d 628 v. Daniels [111 Dufton relies, 949], upon Cal. “merely declaratory general in rule forth set ’’ It me 1086 of the Procedure. that the Code Civil seems (Unemployment Act, 45.11 question in Insurance statute § general “merely declaratory” rule (d) is also of the same lie, in and that we situations which mandamus will as to the presented just situation. are here with such a n concurring my appears As from the authorities discussed 5], Eisley ante, p. 637 opinion Mohan, formerly U.S.C.A., 3653(a), (26 federal statute a similar § including courts, 3224), construed federal E.S. declaratory merely Supreme Court, being the United States suit equity prohibit prior rule in and does il the tax is tax where collection equity to restrain the adequate taxpayer has no legally exacted and the law. at legislation adopting principle that a familiar existing knowledge of presumed to have “had
Legislature is light such statutes decisions and enacted *16 (23 bearing upon them” Cal.Jur. as have a direct decisions of another that a statute “It is settled 159, 783), and p. the courts construed country, has been which state presumed California, will be it adopted jurisdiction, is it, un- given construction so adopted with been to have way express a different changed some language less statute, decisions construing In such intent. country of the courts state or from which the de- statute was great rived consideration, interpreta- are entitled to their ordinarily ap- tion the statute will be followed. This rule plies construing a California statute modeled adopted (23 from a federal pp. 794-795; act.” 172, Cal.Jur. § see 1065-1069; Am.Jur., pp. 357.) also C.J. 315,
I would follow the federal construction the federal statute and hold that the California statute under discussion merely declaratory prior equitable principles his- torically applied by courts and was intended to forbid principles involving resort those exceptional cases cir- respondent cumstances. Here seeks to exact from contributions, plus penalties,' extending interest back for approximately years—contributions period re- spondent steps no during took to claim which, that period, by the manner of its attack on the it petition, now concedes legally owing, aggregate are not and which now such a total payment will force “receivership into bankruptcy,” with the result that may inevitable never be able to secure refund. To hold such circum- not apply stances to the courts for appropriate relief appears contrary to me to be justice to natural and to the principles fundamental system government of our aptly courts. As Higgins declared in Mfg. Page v. Co. (1927; D.C.), 20 (where F.2d defendant though a tax collect even such tax judicially determined illegal) adequate to be “where there remedy law, is no at power grant relief; the court should have otherwise, the mercy citizen will be at the departments more government . . than is . consistent with in a free life coun- try.” judgment
I would ground reverse on the further issue expressly writs of mandate is confirmed (Const., the courts of California the state Constitution art. VI, 4, 4b, 5) and that the may not, independ §§ ently provision, of constitutional forbid the issuance man damus in in which adequate remedy. case there no other (See Supervisors Miller & Lux Board (1922), 189 Cal. “In . . state . the law is now established that mandamus is the remedial writ which will be used to correct those acts agen decisions administrative cies which are in law, adequate violation of where no other provided. . . . Thus the writ has been [Citations.] *17 compel not
used to administrative action which was re fused [Citations], in violation of law but also to or re annul already strain administrative action taken which is in violation ” of (Bodinson Mfg. law. Co. v. E. [Citations.] California (1941), supra, 321, 329.) Com. This court has de clared, parallel in a involving appellate jurisdic situation its “ tion, that ‘The of this state powers courts derive their jurisdiction from the constitution of state. The constitu by enlarged tional can neither nor be restricted legislative attempt away act. An to take courts judicial power by conferred them the constitution ’ (Pacific Telephone Eshleman, void. etc. Cal. Co. 640, 690 50 L.R.A.N.S. 822, P. Ann.Cas. 1915C 652].) . .. away right by legislature
“And if the di- cannot take this rect accomplish enactment neither can it result same has, ordinarily, the legislature indirect device. While power right a create new for the enforcement of a against wrong, cannot, guise or a defense under the creating statutory remedy, deprive litigant new ex- of an constitutionally isting guaranteed right defend, unto even alleged resort, against a court of last of an the enforcement right legislature In the crea- words, ... other cannot remedy deprive of a constitutional tion new court of its in the grant appellate jurisdiction if the involved very remedy' execution of the a character which in its equitable and char- equitable essence is and was of an nature pro- adoption the constitutional acter at the time gave appellate jurisdiction over vision which to this court (In By-Pass subject remedy.” matter of the re Sutter-Butte (1923), 190 536-537 Assessment Cal. attempts support to find opinion of the Chief Justice the constitutional purported curtailment of
for the statute’s that “Ex undisputed proposition powers courts in Legislature provides, the cept otherwise as the Constitution individuals,” rights of complete power to determine being used understood as “determine” be provided the word prospectively” or “defining in advance in the sense determination or decision in the either sense on the other. arbitrary termination hand, or one on the first course, not, Constitutionally, property, personal obligations, whether rights specify circumstances, then either defined arise under shall rights or provide obliga abolish enforcement tions, opportunity without a fair individual citizen protect himself, and, me, Legis heard and seems lature should be held to be without invest others— agencies government—the whether individuals or author ity arbitrarily enforce, regardless to make and to of both law *18 equity, illegal against any exactions individual person. Under the perform statute the commission is authorized to certain ministerial acts; purports levy law itself to certain upon employers specified contributions under circumstances authorizes collection of contributions; such but the majority opinion may levy holds that the commission unrestrainedly collect exactions not authorized act persons subject opinion recognizes from to the act. Such is, may be, illegal that the exaction or and that the “tax payer” legal right bring has a to to pay suit recover it after protest, ment under but holds in that the statute is valid de nying aggrieved person, showing, to the whatever the remedy injunction. (Cf., of Hospital mandate or Seaside etc. Emp. (1944), Com. 683 [151 California high degree P.2d 116].) holding, Such which vests ab powers my solutism in the commission, view is un sound and undesirable. my
In support holdings view are the in the situations provided right where it is particular that a or cause of action longer exist, shall no where a limitations shortened, statute is where adopted, curative taxation acts are etc.; in such cases Legislature must allow periods reasonable bring- for the ing existing rights, action to enforce is barred an arbitrary rights, etc. dissolution those seems trite but point to out that the so-called “abolition” of the cause of action for of promise, opinion breach relied in the Justice, was not an existing right the Chief abolition an rights provision proscribed but a that new nature action, should not arise in the future. existing As to causes of Legislature bringing could shorten the time for the them, shortening of action to enforce and such still was re- quired prior reasonable time for to allow the exercise of the existing rights. Furthermore, respect attempt majority opinion to so stout crutch of make the asserted grant distinction “between to right vindicated,” which is to be it is to be noted question the statute in purport does not lop on its face off rather, destroy right or “the which is but, vindicated” appears squarely i.e., be directed at the at the remedy; equitable powers pertinent language courts. The injunction “No statute is: writ or of mandate or other legal any equitable process any shall issue suit ... any prevent this state or officer thereof to enjoin under act collection of contributions Authority powers . . .” so limit the constitutional courts, already shown, Legis- been is not has vested in the lature. present provided
In certainly, case the observed, other constitutional limitations are had and to define the circumstances and the extent employer’s obligation which an to contribute under the Un cannot, employment That Insurance Act should arise.* fact so de however, further circumstance that after obscure the rights obligations Legislature is fining employer’s adequate providing power, without the absence another his resort legal remedy, to forbid to mandamus secure a he within those defini of whether falls determination authority to curtail constitu tions; without likewise *19 protect the to issue mandamus to tional courts where, here, it admitted or that rights of is shown person act, subject not that employer, that he is he not is damaged, irreparably illegal, that he will be assessment remedy And adequate available. other is no and that there any prescribed of whether determination case the legis adequate judicial function, remedy or is not E. Mfg. Co. v. Com. (See Bodinson one. lative California 321, 326; People v. Associated Oil supra, 17 (1941), Cal.2d I would not 93, 98 211 Cal. (1930), Co. responsibility escape from the seek function or abandon exercising it. be reversed. judgment should Carter, concurred. J., (1944), supra, Emp. Hospital Com. v. Cal. etc. Seaside *See proper was a mandamus 681, 683, it was held in which hospital] [petitioner it compel appellant rule [commission] “to bar, ."; in the case at operation act . . exempt from the remembered, upon is admitted the record
will be subject operation. to its “employer" is not the act and within not an