Whyte v. Jordan

RICHARDS, J.

The plaintiff, as the assignee of the claims of several foreign corporations which, in the year 1926 had paid to the defendant in his official capacity as Secretary of State certain license taxes, under the compulsion of the Corporation License Act of the year 1915 (Stats. 1915, p. 423, and the acts amendatory thereof [Deering's Gen. Laws 1923, Act 1743]), and which act had been subsequently declared unconstitutional by this court in the case of Perkins Mfg. Co. v. Jordan, 200 Cal. 667 [254 Pac. 551], has brought this action to recover license taxes alleged to have been thus illegally collected, against the defendant Frank C. Jordan, individually, and not as Secretary of State of California. The defendant demurred to the plaintiff's complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer with leave to the plaintiff to amend, and upon his failure or refusal so to do entered its judgment in the defendant's favor. From such judgment the plaintiff has prosecuted this appeal. In support of the judgment the respondent places practically his entire reliance upon. the former adjudication of this court in the case of Hartford Fire Ins. Co. v. Jordan v. 168 Cal. 270 [142 Pac. 839], wherein the defendant herein, in his capacity of Secretary of State, and also individually, was made defendant

[554]

in an action in all essential respects identical to that of the case at bar, and wherein this court, after a very full consideration of the question presented upon that appeal, decided that the defendant therein could not be made the subject of an action in either his official or individual capacity for the recovery of taxes or licenses collected and received by him under a void statute, which taxes had been paid by him into the state treasury prior to the institution of such action. The appellant herein seeks to have us in this case overrule said decision and urges in support of his contention in that regard that the rule of the nonliability of a state official, in either his official or individual capacity, for taxes or licenses which have been paid to him under a statute subsequently declared to be void is contrary to the main current of authorities throughout the country, and particularly to the recent decisions of the supreme court of the United States in certain specified cases. The decision of the latter court, upon which the appellant mainly relies, is that of