I dissent.
The majority opinion holds that the taxing agencies of this state may tax funds which the United States government has allocated for the payment of obligations due contractors on government work before the government has released control of such funds, thus permitting the taxing of funds actually owned and controlled by the United States government. In my opinion such holding is in direct violation of the established rule of reciprocal immunity against the taxation by either the state or federal government of property owned by the other. (McCulloch v. Maryland, 4 Wheat. 316 [4 L.Ed. 579]; United States v. Allegheny County, 322 U.S. 174 [64 S.Ct. 908, 88 L.Ed. 1209].)
A brief statement of the facts will suffice. On tax day, the first Monday in March, 1944, plaintiff, a corporation, was engaged in the business of producing military aircraft, and as such it had a contract to manufacture aircraft for the United States dated April 7, 1942, referred to as a “cost-plus-a-fixed fee” contract. Thereunder the plaintiff was to be paid by the government, as an independent contractor, the costs of production plus a fixed fee. In order to provide plaintiff with capital to conduct its operations, supplemental agreements were made under which it was provided that the United States was to “make advance payments” within the limits stated, security for which was to be furnished by plaintiff; that such payments should be deposited in a special bank account which was to be kept separate from plaintiff’s general or other funds; that the balance in such account or accounts should be used “by the contractor exclusively as a revolving fund for carrying out the purposes of the principal contract and any amendments thereto and not for other business of the contractor”; that withdrawals from such special account or accounts should “be made subject to the prior written approval of the contracting officer or his duly authorized representative” ; that any balances in such account or accounts should “secure the repayment of the advances” and that the government should “have a lien upon such balances to secure the repayment of such advances, which lien shall be superior to any lien of the bank or any other person upon such account or accounts by virtue of assignment to it of such con*645tract or otherwise”; that the bank should not be liable “for the withdrawal of any funds from said special account upon checks, properly endorsed and signed by the contractor, except that after the receipt by the bank of written directions from the Chief of the Air Corps, or his duly authorized representative, the bank shall act thereon and be under no liability to any party hereto for any action taken in accordance with the said written directions”; that any excess money should be “repaid by the contractor to the Government” under certain circumstances specified in the contract; that in the event of cancellation of the principal contract the contractor should “return to the Government” the unliquidated balance of any advance payment; that in the event it was determined that the advance payments exceeded the amount necessary for the current needs of the contractor, the excess should “be promptly returned to the Government.”
Pursuant to the agreement, arrangements were made with a bank wherein it was agreed that a special account in plaintiff’s name was to be set up for the advances and paid out in accordance with the agreements. The government advised the bank that no checks drawn on the account by plaintiff were to be honored unless countersigned by the named federal officer.
On the first Monday in March, 1944, there was $453,353.43 in the account and the defendant county of Los Angeles levied an ad valorum property tax thereon against plaintiff of $453.35, which it paid under protest.
Plaintiff and intervener, United States, claim and the trial court found, that the account belonged to the government and plaintiff had no taxable interest therein, and that if it had an interest, such interest was of no value to plaintiff; that therefore the account was illegally taxed to plaintiff.
Whether or not the account (the debt of the depository bank) belonged to the government or to plaintiff depends upon the agreements. The basic cost-plus-fixed-fee contract provides that advance payments “may” be made when the federal officer ‘ ‘ deems such action necessary, ’ ’ and if made shall be in terms prescribed by the officer. The government may terminate the contract at any time. Under the supplemental agreements, it is provided that advances shall be made and a special account created, but also that “Withdrawals from such special account or accounts shall be made subject to the prior written approval of the Contracting Officer or his dmly *646authorized representative.” If the amount in the account exceeds, “in the opinion” of the federal officer, the amount necessary, the excess must be returned to the government and under the special account agreement with the bank, the money is to be paid out as set forth in the agreements.
The foregoing provisions of the agreements point unerringly to the conclusion of the trial court that there was no vestige or incident of ownership in plaintiff of the special account. Contrasted with the facts here are the circumstances present in Kaiser Co. v. Reid, 30 Cal.2d 610 [184 P.2d 879], where this court repeatedly stressed the right of “exclusive possession” held by a lessee from the United States, and it was that right of possession upon which the tax was levied. While it is true that the United States was to have a lien on the account, which indicates lack of ownership in it, that the account stood on the bank’s records in plaintiff’s name but only nominally, and that the moneys deposited in the account were spoken of as “advances,” yet withdrawals from the account were wholly under the control of the government. Plaintiff did not have the right of use, possession, or title, all incidents of ownership. The exercise by it of any of those prerogatives of ownership was completely under the control of the United States. Therefore, plaintiff had no interest equitable or legal in the account and likewise it was not a solvent credit belonging to it. To be such a credit, it would have to be payable to plaintiff without any strings or conditions attached. It is apparent that the “advances” to the account were not really advances as ordinarily understood, that is, a payment before due date, for they were not payments to plaintiff inasmuch as that would imply possession and right to use the sums paid. But the account was then not usable by plaintiff without the prior permission of the government. An advance, as that term is ordinarily used, was thus not made until withdrawals had been made from the account. Then and then only was a payment made. The account was a mere field or local arrangement whereby the government had the funds on the spot where needed, thus facilitating their disbursement at a time when fast action was of the essence.
The cases relied upon by Justice Traynor are not in point. In Kaiser Co. v. Reid, 30 Cal.2d 610 [184 P.2d 879], as above stated, the contractor leasing from the government was in possession of the property and had the right of exclusive use thereof. Here, Timm is neither in possession of the account, nor does it have any right of use unless the government so
*647wishes, let alone an exclusive right. In Enright v. United States, 54 F.2d 182, the advance payments had already been made to the contractor. They were not in an account over which the government had control. United States v. Butterworth-Judson Corp., 267 U.S. 387 [45 S.Ct. 338, 69 L.Ed. 672] is clearly distinguishable. The payments were there made to the contractor, thus title passed. They were not in an account under the government’s control. In Alabama v. King & Boozer, 314 U.S. 1 [62 S.Ct. 43, 86 L.Ed. 3, 140 A.L.R. 615], the sole question was whether a contractor was an agent for the government when it purchased property to fulfill its contract with the government, the title to which passed to the latter on acquisition, and thus whether a sales tax on the sale of the property was valid. Plainly, the property was purchased by the contractor for his use in fulfilling his contract, and thus it was a sale to him and hence taxable. For illustration, it is said immediately following the quotation therefrom by Justice Traynor: “It can hardly be said that the contractors were not free to obligate themselves for the purchase of material ordered. The contract contemplated that they should do so and that the Government should reimburse them for their expenditures. It is equally plain that they did not assume to bind the Government to pay for the lumber by their order, approved by the Contracting Officer, which stipulated that it did not bind or purport to bind the Government. The circumstance that the title to the lumber passed to the Government on delivery does not obligate it to the contractor’s vendor under a cost-plus contract more than under a lump sum contract ... We cannot say that the contractors were not, or that the Government was, bound to pay the purchase price, or that the contractors were not the purchasers on whom the statute lays the tax.” [Emphasis added.] In the instant ease the account was not Timm’s for it could not be used except upon the approval of the government.
It is urged by appellant, and Mr. Justice Edmonds holds, that the instant action cannot be maintained by plaintiff because it fails to qualify under the statute permitting an action to recover taxes paid under protest by the owner of the property erroneously assessed. Plaintiff did not proceed under the claim for refund provisions of the statute. Its action is pursuant to the following provision: “After taxes are payable, any property owner may pay the taxes on his property under protest. A payment under protest is not a *648voluntary payment.” (Bev. & Tax. Code, § 5136.) Section 5137 of that code authorizes the action when the tax is paid under protest, and the following section reads: “The action may be brought only: (a) As to the portion of the assessment claimed to be void, (b) On the grounds specified in the protest, (c) By the owner, his guardian, executor, or administrator.” (Bev. & Tax. Code, § 5139.) The refund provisions authorize the making of a claim for refund to the board of supervisors (Bev. & Tax. Code, §§ 5096-5097), and an action by the taxpayer if the claim is disallowed (id., 5103).
There are various considerations which clearly point to the conclusion that the word “owner” as used in the provisions for recovering a tax paid under protest (Bev. & Tax. Code, § 5136 et seq., swpra), must be interpreted to include a person who both paid the tax and is the one against whom the assessment was levied. The remedies by way of claim for refund and payment under protest are cumulative. (Brill v. County of Los Angeles, 16 Cal.2d 726 [108 P.2d 443]; Birch v. County of Orange, 186 Cal. 736 [200 P. 647]; Stewart etc. Co. v. County of Alameda, 142 Cal. 660 [76 P. 481].) Statutory .authority for the recovery of a tax levied pursuant to a void assessment paid under protest is “befitting to this more enlightened age” (Hellman v. City of Los Angeles, 147 Cal. 653, 655 [82 P. 313]), and, being remedial in nature, should be given a liberal construction. (See Hellman v. City of Los Angeles, supra; Stewart etc. Co. v. County of Alameda, supra; Brenner v. Los Angeles, 160 Cal. 72 [116 P. 397].) The relief afforded by the payment under protest provisions takes the place of an action for money had and received, eliminating the common law requirement of payment under duress. (Aalwyn's Law Inst. v. San Francisco, 39 Cal.App. 414 [179 P. 220].) The person against whom the assessment is made, and the person who paid the tax, is the one who has a claim for money had and received inasmuch as he was the payer. If such a person may not recover, then there is no recovery under the payment under protest method, for a person against whom the tax was assessed and who paid it, although not the owner of the property assessed, would never be the owner and would not have the remedy. That is clearly contrary to the liberal spirit of such provisions and would deny what they permit, an action to recover taxes paid under protest where the assessment is void. (See, Bev. & Tax. Code, § 5137(a), § 5139(a), 5141.) The county asserted that plaintiff was the owner of the account and as far as the assessment goes, *649it was declared to be the owner. I conclude, therefore, that an assessee of property who pays the tax levied thereon under protest has an action to recover when the assessment was void for lack of ownership in the taxpayer.
The case of Warren v. San Francisco, 150 Cal. 167 [88 P. 712], relied upon by Justice Edmonds, is not controlling. There the taxpayer was wholly and entirely a volunteer. He paid taxes on property which was not assessed to him and in which he had no vestige of an interest. It was a part of a public street. Moreover, that case failed to give the liberal construction required.
Being convinced that the money in the account here involved was not taxable, and that plaintiff pursued the proper remedy for its recovery, I would affirm the judgment of the trial court.
Schauer, J., concurred.