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District Court of Appeal, First District, Division 2, California.


Civ. 10939

Decided: January 27, 1939

Griffith & Thornburgh, of Santa Barbara, for appellant. Percy C. Heckendorf, Dist. Atty., and Rigmor O. Carlsen, Deputy Dist. Atty., both of Santa Barbara, for respondent. Stater & Dawson, John H. Dawson, Holbrook & Tarr, W. Sumner Holbrook, Jr., Miller, Chevalier, Peeler & Wilson, and Melvin D. Wilson, all of Los Angeles, amici curiae in support of appellant. J.H. O'Connor, Co. Counsel, S.V.O. Prichard, Asst. Co. Counsel, and A. Curtis Smith, Deputy Co. Counsel, all of Los Angeles, amici curiae in support of respondent.

Plaintiff sued to recover taxes paid under protest. The county's demurrer was sustained without leave to amend. In affirming the judgment we confine our reasons to the single ground that the complaint fails to state a cause of action be cause it does not allege a prior demand upon the county.

Section 3819 of the Political Code provides the method for payment of taxes under protest and authorizes a suit against the county to recover. Section 4075 of the Political Code, as amended in 1931, St.1931, p. 197, provides that “All claims against any county * whether such claim be founded upon contract, express or implied, or upon any act or omission of the county or any officer or employee thereof, * shall be presented to the board of supervisors as herein provided before any suit may be brought on any such claim, and no suit shall be brought on any such claim until said claim has been presented as herein provided and rejected in whole or in part. *” (Italics ours.)

By this amendment the legislature has changed the rule of Birch v. County of Orange, 186 Cal. 736, 200 P. 647, and similar cases decided before the amendment to section 4075 and when no statute made the presentation of a demand a condition precedent to suit filed. The amended section is just as sweeping and just as explicit as the provisions of section 24 of the old County Government Act, which was construed in McCann v. Sierra County, 7 Cal. 121, and of the provisions of the Los Angeles city charter construed in Farmers' & Merchants' Bank v. City of Los Angeles, 151 Cal. 655, 91 P. 795. The code section involved in the McCann Case read: “no person shall sue a county in any case, for any demand, unless he or she shall first present his or her claim to the board *.” St.1855, p. 56, § 24. The court simply held that “in any case” meant that demands must be made in all cases, and that the court could not read an exception into the section. The charter section involved in the Farmers' Bank Case read [page 796]: “No suit shall be brought upon any claim for money or damages * until a demand for the same has been presented *.” The court there held that the language of the charter did not admit of judicial exceptions.

Following the McCann Case come People v. Supervisors, 28 Cal. 429; Alden v. Alameda County, 43 Cal. 270; Rhoda v. Alameda County, 52 Cal. 350, and Arbios v. County of San Bernardino, 110 Cal. 553, 42 P. 1080; all holding that under those provisions of the County Government Act the filing of a claim was a condition precedent. Then come Keyes v. San Francisco, 177 Cal. 313, 173 P. 475, and Birch v. Orange County, 186 Cal. 736, 200 P. 647; after the repeal of those provisions, holding that the statutes did not then require such claim to be filed. Following these cases come Rhoda v. County of Alameda, 134 Cal.App. 726, 26 P.2d 691, and Johnson v. City of Glendale, 12 Cal.App.2d 389, 55 P.2d 580, both decided after the 1931 amendment to section 4075 and both applying the rule of the early cases herein cited; and Phillips v. Huntington Beach Elementary School Dist., 8 Cal.2d 553, 66 P.2d 657, where a similar requirement in the General Statutes was recognized as jurisdictional. Upon this historical review it follows necessarily that the “rule of decision” is that stated in Spencer v. Los Angeles, 180 Cal. 103, 119, 179 P. 163, 170, as follows: “It has been decided, and must now be considered as settled, that where the charter of a city provides that demands must be presented to its council or some officer of the city for approval or rejection, and that no payments can be made nor suit be brought thereon until after such presentation and rejection, that the cause of action does not accrue until such presentation has taken place.”

The argument contra is that, since 3819 authorizes the taxpayer to sue the county to recover taxes paid under protest, this should be treated as a complete declaration of his rights, unlimited by any other statutory restrictions. But it is common in municipal charters to provide simply that the city “may sue and be sued”. Suits against cities and other public corporations for certain classes of torts are permitted by the general statute—Deering's Gen.Laws, Act 5149, and by section 400 of the Vehicle Code, St.1935, p. 153. It would be as reasonable to say that these statutes are not governed by other statutory and charter restrictions relating generally to suits against these public corporations.

In the final analysis the question resolves itself into the simple one of the powers of the legislative and the judicial departments—whether the latter may substitute its views as to what would appear the more reasonable mode of procedure. When a statute in clear terms provides that “no suit shall be filed” unless a claim has been first presented, the courts may not, under the guise of judicial construction, or judicial interpretation, declare that the statute means that “some suits” may be filed without prior claim, though it may appear to judicial minds that that would be a more reasonable mode of procedure. Plain words used in a statute employed according to their common and accepted meaning do not call for judicial construction, and when the express declarations of the legislative body are nullified by what is termed “interpretation” it becomes judicial legislation, rather than judicial construction.

The judgment is affirmed.

NOURSE, Presiding Justice.


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