McClellan v. State of California

KERRIGAN, J.

This action was brought by the plaintiff, as assignee of a large number of corporations, for the recovery of various amounts aggregating the sum of $71,680.50, paid by them to the Secretary of State under the provisions of the annual corporation license tax law.

Demurrers, both general and special, on behalf of the state and the other defendants were interposed, which demurrers were sustained by the trial court upon the ground that the court had no jurisdiction of the subject of the action, for the reason that the plaintiff could not maintain an action against the state without its consent.

The defendants, Frank C. Jordan and Friend W. Richardson, are officers of and represent the state, and the state is the real party against whom the relief is sought; and if the ruling of the trial court is correct, all of the defendants fall within the rule of prohibition.

There is not now, nor has there ever been, any statute of this state authorizing anyone to institute against the state, or any of its officers, an action for the recovery of any fee or

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sum of money of the character here involved. The only statute permitting the institution of such suits is the act of February 28, 1893 (Stats. 1893, p. 57). This statute authorizes actions against the state by “all persons who have, or shall hereafter have, claims on contract or for negligence against the state not allowed by the State Board of Examiners. ’ ’

This action is admittedly neither an action on contract nor because of negligence, but counsel for appellant claims his right of action has foundation irrespective of any permissive act. The substance of his contention is that the rule that a state cannot be sued except with its consent is a common-law rule which originated in the minds of the kings of England in the middle and dark ages, which would not permit the redress of a wrong against the king because of his divine sovereignty; and he argues that the rule has become antiquated and benighted, and has no place in these advanced and modern days; and he insists that an action against the state is no part of sovereignty, and intimates that rulings of courts based on that principle are old and antiquated, entirely erroneous, and that they should have no place in our modern scheme of advanced government and enlightened civilization.