This is аn appeal from a judgment of the superior court granting the application of Seaside Memorial Hospital (herein called petitioner) for a writ of mandate directed to California Employment Commission (herein called appellant). The main issue involved is the same as that considered in Scripps Memorial Hospital v. California Employment Commission, ante, p. 669 [
Petitioner was organized in 1937 as a nonprofit hospital corporation, and all of its assets are devoted to hospital purposes. It treats both charity and pay patients, deriving practically all of its revenue from thosе who pay. Its facilities are open to any persons without discrimination. None of its revenues are received as profits by any individual. Without reciting in detail the provisions of its articles, or dеscribing the particular activities in which it is engaged, it may be said that the trial court correctly concluded that petitioner is a charitable corporation within the meaning of sectiоn 7(g) of the act, and it is likewise within the exemption provisions of section 7 (k) of the act., For a discussion of the law, see the opinion in the companion case of Scripps Memorial Hospital v. California Employment Commission, supra.
There are, howеver, procedural problems presented by the record herein, as a result of the following circumstances.
From November 1, 1937, to and including March 31, 1939, petitioner paid contributions to aрpellant, some with and some without protest. Its payment for the third quarter of 1938 was made under protest, accompanied by a claim of exemp
In August, 1939, petitioner applied to appellant for a refund of its contributions theretofore made. After protracted consideration, appellant in May, 1940, reversed its former decision and ruled that petitioner was an employer subject to the provisions of the act. On July 15, 1940, pеtitioner made written protest against this ruling.
On August 28, 1940, claims of certain employees of petitioner, co-respondents herein, for unemployment benefits were heard and denied by the claims dеputy, and appeals were taken. While these appeals were pending before the referee, the appellant commission transferred the cases to itself for hearing and consideration.
In January, 1941, a hearing was ordered by appellant on the matter of the assessment of contributions against petitioner, and appellant granted petitioner’s rеquest that its application for a refund be considered in connection with that hearing. After various intermediate proceedings, appellant on February 7,1942, ruled (1) that petitioner was nоt entitled to exemption from the provisions of the act, nor to any refund of past contributions, and (2) that the co-respondent employees were entitled to unemployment benefits.
In March, 1942, petitioner applied to the Superior Court of Los Angeles County for a writ of mandate to compel appellant to rule that it was exempt from the operation of the act, that it was entitled to a refund of past contributions, and that co-respondents were not entitled to benefits. While this matter was pending in the superior court, appellant applied to the District Court of Appeal, Second District, Division Two, for a writ of prohibition to restrain the superior court from proceeding further. The District Court of Appeal summarily denied the petition by a minute order, and subsequently this court by minute order denied a petition for hearing. Thereafter the superior court rendered its judgment in favor of petitioner, issuing a peremptory writ of mandatе as requested.
Section 45.10 of the act, which went into effect September
It is the contention of appellant that this prоvision furnishes a proper and exclusive remedy for petitioner, which petitioner was required to exhaust, and that the superior court was without jurisdiction to grant the remedy of mandamus. Petitionеr offers a dual answer: (1) the order of the District Court of Appeal denying appellant’s application for a writ of prohibition was a determination that the superior court had jurisdiction, which determination is now res judicata; and (2) properly construed and applied to the facts presented by the record herein, section 45.10 is not a bar to the relief sought in the superiоr court. We have reached the conclusion that the construction of the provision urged by petitioner is correct, and accordingly we rest our decision upon that ground, without expressing any opinion on the question of res judicata.
Section 45.10 is obviously designed to prevent the use of injunctive process against tax collections, and to provide an adequatе remedy in lieu thereof—payment of the tax under protest — which would safeguard the employer’s interests without interfering with the normal functioning of the act.
With respect tо the first part of the section, the prohibition is against the use of injunction or other legal or equitable process to prevent the collection of contributions sought to be collеcted, whereas petitioner is not trying to enjoin or prevent any such collection, but to secure a refund of payments already made. Obviously there cannot be any enjoining or preventing of a payment which has already been made. The second part of this section, which provides for the remedy of a suit within sixty days to recover payments made under protest, is not аpplicable, by its very terms, because it expressly states that, regardless of a failure to adopt the remedy of an action to recover payments made, “such demands may still be prosecuted in accordance with the provisions of section 45.11 of this act.”
Section 45.11 permits an “application for an adjustment” or “for a refund” of contributions if made “not later than three years after the date on which any contributions, penalties, or interest were paid” (the section originally read that the time ran from the date such payments “became due”), and provides that if the commission determines that contributions were erroneously collected “the commission shall allow ... an adjustment ... or if such adjustment cannot be made the commission may rеfund such contributions, penalties and interest from the clearing account.” As shown by the facts hereinabove recited, petitioner’s original applications for exemption and for refund of contributions paid were made well within the three-year period and were promptly renewed from time to time until the commission made its final ruling on February 7, 1942, that petitioner was not exempt from the provisions of the act and was not entitled to any refund of contributions paid. It thus appears that every necessary administrative step has been taken by petitioner, that the сommission has rendered its final decision, and that under section 45.11 it is the duty of the commission to refund the contributions paid, as was ordered by the trial court’s judgment herein. The right of petitioner to review by mаndamus is therefore clear. (See Bodinson Mfg. Co. v. California Em
Since the petitioner is exempt from the operation of the act, it necessarily follows that the trial court was correct in ruling that the co-respondents were not entitled to benefits.
The judgment is affirmed.
Shenk, J., Curtis, J., Edmonds, J., Carter, J., Traynor, J., and Sehauer, J., concurred.