Mitchell v. Taylor

LANGDON, J.

This is a petition for a writ of mandate to compel respondent, clerk of this court, to file a transcript on appeal without payment of fees.

Petitioner is the Insurance Commissioner of the State of California. In accordance with statute (Deering’s Gen. Laws 1931, Act 3739) he was by order of the Superior Court of Los Angeles County appointed liquidator of the Union Automobile and Casualty Company, an insolvent in

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suranee corporation. As snch liquidator he paid certain state taxes under protest and sued to recover them. Judgment was rendered against him, and he took the appeal in which, as above stated, he seeks to avoid the statutory fee for filing the transcript. It appears that in most of the counties of this state, under the advice of district attorneys and a ruling of the attorney-general, the commissioner is not charged for official service; but that in at least one county, the payment of fees is required. This proceeding is brought to secure a positive ruling on the question, and thus to establish a uniform practice throughout the state.

The claimed exemption rests upon the provisions • of section 4295 of the Political Code, that “the state ... or any public officer . . . acting in his . . . official capacity on behalf of the state . . . shall not be required to pay or deposit any fee for the filing of any document or paper, or for the performance of any official service ...” This section has never been construed by our appellate courts. It is, of course, conceded that petitioner is a “public officer acting in his official capacity”. In the only case in this state which bears closely upon the question at issue,

Mercantile Trust Co.

v.

Miller,

166 Cal. 563 [137 Pac. 913], the court had under consideration section 1058 of the Code of Civil Procedure, dispensing with an appeal bond where the state or “any state officer, in his official capacity or on behalf of the state” was the appellant. It was held that the superintendent of banks came within the language of this provision.

Amici curiae