I dissent. I cannot subscribe to a result which denies a concededly proper claim for interest on an overpayment by the misapplication of a subsequently en*705acted statute. As the majority opinion states, the amendment which included the interest claim as well as the overpayment within the 90-day limitation was not adopted until after the commencement of the action. There is not only no asserted “absurdity” but on the contrary there is reason and justice in applying a statute of limitations upholding the taxpayer’s action on an admitted claim to interest where otherwise there is no statutory limitation which expressly bars it. In my opinion there was no applicable statute except the general statute (Code Civ. Proc., § 338, subd. 1). The action was commenced well within the time there specified. The subsequently enacted amendment (Stats. 1949, p. 1560) was not a clarification statute. Its purpose was to include the claim for interest as well as the claim for the overpayment within the 90-day limitation. By the application of the “clarification” ipse dixit the plaintiff’s previously existing cause of action is destroyed. No valid warrant in the law is advanced to achieve that result.
Here the claim for the overpayment was allowed and the amount thereof refunded. Only the claim for interest is involved. Unquestionably the Legislature established the right to the interest and provided the necessary consent to sue therefor. Section 27 of the original act was as follows: “Interest on refunds shall be allowed and paid at the rate of six per centum per annum from the' date of the overpayment to a date preceding the date of the refund warrant by not more than thirty days, such date to be determined by the commissioner.” (Stats. 1929, p. 31; Stats, 1931, p. 69.) Subsequent enactments continued the declaration of the right to interest on overpayments in the following language: ‘1 Interest shall be allowed and paid upon any overpayment of any tax, if the overpayment was not made because of an error or mistake on the part of the taxpayer, at the rate of six per centum per annum. ...” (Stats. 1937, p. 2343; Stats. 1939, p. 2966; Stats. 1943, p. 1457; Stats. 1947, p. 2863; Stats. 1949, p. 1561.) Concededly the overpayment was not because of an error or mistake of the taxpayer and the claimant is entitled to sue and to prevail in this case unless prevented by an applicable statute of limitations.
Section 30(b) of the act provided in its pertinent part: “Within 90 days after the mailing of the notice of the commissioner’s action upon any refund claim . . . the taxpayer *706may bring an action against the commissioner on the grounds set forth in such claim for the recovery of the whole or any part of the amount claimed as an overpayment.”
The defendant’s contention invoking the 90-day limitation is necessarily based on the assumption that section 30(b) contains the only consent by the state to be sued for recovery of the interest. That section unquestionably contains authority to sue for the recovery of “the whole or any part of the amount claimed as an overpayment.” It is only by a process of construction inseparably including interest as a part of the “overpayment” that the defendant’s contention can have any merit whatsoever. The contention should not be sustained for the reason that the interest constitutes a sum of money that was never paid and could in no proper sense be deemed an overpayment under the circumstances here presented. The commissioner at no time considered it a part of the overpayment. He treated it as a claim requiring separate consideration and action quite apart from the money actually paid.
In 1949 the Legislature recognized that the 90-day limitation of section 30(b) did not theretofore apply to actions to recover interest by amending section 27 of the act to make the 90-day limitation applicable also to the action of the commissioner in “disallowing interest upon any refund claim.” The purpose and effect of that amendment was to remove actions such as this from the operation of the general limitation statute and bring them within its special provision. The result of the misapplication of the statute is to defeat a coneededly meritorious cause of action. I would affirm the judgment.
Schauer, J., concurred.