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District Court of Appeal, First District, Division 3, California.

GIBBONS & REED COMPANY, a Utah corporation, Guy F. Atkinson Company, a Nevada corporation, John Delphia, Plaintiffs and Respondents, v. DEPARTMENT OF MOTOR VEHICLES, State of California, Robert McCarthy, Director, Department of Motor Vehicles, State of California, A. J. Veglia, Registrar of Motor Vehicles, Department of Motor Vehicles, State of California, and Alan Cranston, Controller, State of California, Defendants and Appellants.

Civ. 20742.

Decided: October 11, 1963

Since our opinion was filed, respondents have asked the Court to state specifically whether the striking of interest applies to prejudgment interest only, or to postjudgment interest also. The subject of postjudgment interest was not particularly covered in the briefs, and respondents believe it is not disposed of in the opinion, and they have submitted, as has appellant, further argument. Respondents' claims to postjudgment interest, and our decision on each, are as follows:

1. That article XIII, section 15 of the California Constitution provides that after payment of any tax collected under that article, action may be maintained to recover, with interest, taxes claimed to have been illegally collected. Motor vehicle fees are not collected under article XIII (Ingels v. Riley, 5 Cal.2d 154, 53 P.2d 939, 103 A.L.R. 1). It does not apply.

2. That under section 1095 of the Code of Civil Procedure, where judgment for writ of mandate is granted, applicant may recover the damages he has sustained, and, say respondents, damages include interest. If this broad statement were true, interest would be allowable in every case in which damages are awarded. Benson v. City of Los Angeles, 60 A.C. 309, 33 Cal.Rptr. 257, 384 P.2d 649, is cited by respondents, but this was not a mandamus proceeding but an action for damages for breach of contract (p. 319 of 60 A.C., p. 262 of 33 Cal.Rptr., p. 654 of 384 P.2d). There is no contract by the state to refund taxes, whether collected illegally or not. (Southern Service Co., Ltd. v. Los Angeles, 15 Cal.2d 1, 11, 97 P.2d 963.)

3. That by section 1033 of the Code of Civil Procedure, the clerk or judge must include interest on a verdict or decision. This was not a money judgment in an action, but a writ in a special proceeding, and it does not bear interest. (Nilsson v. State Personnel Board, 36 Cal.App.2d 186, 97 P.2d 843.)

No award of interest, before or after judgment, is allowed.