I dissent. This is an appeal from a judgment of dismissal after order sustaining a demurrer to the petition without leave to amend; accordingly, upon this appeal all of the well pleaded facts must be accepted as true. It is not disputed that upon the facts pleaded the petitioner at all times concerned was not an employer, was not subject to any contributions under the act, and the assessment sought to be collected by respondent is wholly illegal.
The majority opinion holds that the respondent commission has the absolute right and the power to cause petitioner’s assets to be summarily sold at public auction in order to collect from petitioner the illegal exaction, amounting, with claimed penalties, to over $3,000, which the commission arbitrarily undertook to assess against it* as “contributions” assertedly accruing since January 1, 1936, under the California Unemployment Insurance Act (3 Leering’s Gen. Laws, *734Act 8780d) although, as above indicated, it is admitted that petitioner was not at any time an “employer” subject to the act; it is further held that the courts of this state are without power to stay or in any way interfere with the collection of the illegally assessed “contributions” even though admittedly such collection will force petitioner into “receivership and bankruptcy.”
The majority opinion frankly states that “The question on this appeal ... is not [on the merits] . . ., but rather whether an action or proceeding for judicial review of a determination of the respondent board may be had prior to the payment [which it is admitted that the petitioner cannot in reality make] of the contributions which the board claims to be due [but on the pleadings admits to be illegal] . . . Such judicial review in advance of payment is expressly prohibited by section 45.11(d) of the Unemployment Insurance Act, which provides in part as follows: ‘No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding, in any court against this State or against any officer thereof to prevent or enjoin under this act the collection of any contributions sought to be collected. ’ ’ ’ The opinion then admits that the relief sought is not barred by constitutional provision (Cal. Const., art XIII, § 15) and goes on to declare “We may concede, therefore, that were it not for section 45.11(d) of the Unemployment Insurance Act, mandamus might lie in the instant case ...” The opinion then undertakes to sustain the statute by declaring a technical distinction “between jurisdiction to grant the remedy [mandate] and the right which is to be vindicated.”
Apparently the thesis of the argument is that while the Legislature concededly cannot deprive the courts of constitutionally vested powers it can deprive persons of the right to invoke those powers. That distinction is too fine for me; of the holding I think the words of Dean Pound (33 American Bar Assoc. Journal (Nov. 1947) No. 11, p. 1094) in his article “Annual Survey of Law: Decisions of Courts Show Some Dangerous Trends,” are appropriate. Mr. Pound says: “[P]ublic law is swallowing up private law . . . Also, the reviews of the different subjects seem to reflect a steady growth of extra-legal if not often lawless exercise of official power and rise of official absolutism ... In connection with, the tendency to concede the widest power and freedom from judicial scrutiny to administrative agencies, this suggests a *735change in our polity in the direction of centralized absolutism . . . [p. 1097] [T]he complacent acceptance of remaking of the Constitution or abrogation of it through judicial decision ... is significant. It is in line with a general rejection of law and with a cult of absolute exercise of power throughout the world.” Certainly the lawless assessment of contributions against a person not subject to the act, the summary sale of petitioner’s assets to collect the illegal exaction, the resultant destruction of petitioner’s business, and the avowed impotence of the courts to interfere in the process because the administrative commission is beyond the reach of the equity powers of the courts, all combine to suggest that the “cult of absolute exercise of power” has gained a hold in California.
Petitioner has sought relief from the courts through a petition for writ of mandate, filed in the superior court in September, 1945. The petition alleges that petitioner is a California corporation engaged, with the approval of the State Board of Barber Examiners under the laws of this state, in teaching the barber trade in the city and county of San Francisco; that no capital stock has ever been issued by the corporation and that one E. M. Robinson owns all of its assets and operates the barber college as if no corporation had been formed; that since January 1, 1936 (the date an employer’s liability for contributions began to accrue, § 37 of the act), petitioner has at all times employed one or two instructors and during most of the time has “employed” a part-time bookkeeper; that students of the college as part of their training practice barbering on paying patrons and receive a percentage of the fees paid by such patrons; that respondent has found that petitioner is an employer as defined by subdivision (a) of section 9 of the act* and has counted as petitioner’s employes the following persons: E. M. Robinson (alleged by petitioner to own all of the assets, and to be in fact the sole operator of the college), the two instructors, the part-time bookkeeper, and the students who as described above received commissions for services performed during the course of instruction ; that petitioner contends that none of such persons *736except the two instructors were employes and therefore, upon the theory that it was not an employer under the act (since it employed less than four individuals), petitioner neither collected from any of such persons nor paid to respondent any contributions; that respondent is attempting to collect from petitioner over $3,000 alleged to be due as contributions (including interest and penalties) which petitioner assertedly should have paid on behalf of itself and its asserted employes; that petitioner has no funds with which to pay the sum demanded; that a portion of such sum is barred by the statute of limitations (§45.5 and former § 45.2 of the act; and see Code Civ. Proc., § 338); that petitioner is informed and believes and upon that ground alleges that unless payment is made (or, impliedly, unless the relief here sought is granted) respondent commission will issue a summary certificate as provided under section 45.9 (see also present § 45.10) of the act and cause petitioner’s assets to be sold at public auction thereby forcing petitioner “into receivership and bankruptcy”; that petitioner has no plain, speedy and adequate remedy in the ordinary course of law to prevent the issuance of the summary certificate; that petitioner “has requested and petitioned the Respondents and the various departments thereof, including the Appeals Board to withdraw their alleged claim, all of which petitions have been denied and refused, and your petitioner has exhausted all of the administrative and appellant provisions as provided for under the Unemployment Insurance Act and the rules and Regulations of the Respondents.” Also included in the petition are various allegations concerning the conditions and circumstances of the relationship between petitioner college on the one hand and its students and part-time bookkeeper as well as the individual B. M. Robinson, on the other.
Respondent states that on this appeal “The sole issue . . . is whether the trial court erred in holding that a petition for writ of mandate would not lie where the petition does not allege the payment of the tax in question in view of the specific provisions of Section 45.10 of the California Unemployment Insurance Act.” Of course, the demurrer, at this stage of the proceeding, admits all factual allegations of the petition, and inasmuch as respondent does not contend that the facts alleged, when taken to be true, do not establish that for the period here involved petitioner was not an employer under the act, this court’s decision must be deemed to be predicated *737upon the assumption that petitioner actually owes no portion whatsoever of the sum respondent seeks to collect.
The majority opinion, despite the nature of the issue now before this court and despite the remark in that opinion that the “question of . . . the liability of petitioner for the con-, tributions, . . . [is] beyond the scope of this proceeding, ’ ’ is based in part upon the assertions that “The petitioner’s allegation that payment of the claims asserted against it will render it insolvent . . . could be made against any tax . . . The argument that compliance with the statute may cause hardship ... is one which can be addressed only to the Legislature. Furthermore, the allegations show that petitioner never paid any of the sums required under the act although it was financially able to do so when the contributions should have been paid. It would be strange ... if this court were to sanction a practice whereby a taxpayer could regularly refrain from paying taxes, . . . and then urge that, by reason of his large delinquency, the ordinary remedies provided for reviewing his liability are inadequate in his particular case. ’ ’ (Italics added.) The quoted assertions are abhorrent to an accurate or fair appraisal of the controversy before this court; they assume, utterly without foundation and contrary to all the admissions and presumptions controlling when ruling upon a demurrer, that petitioner owed and was required to pay the sums now claimed by respondent, and that petitioner actually is delinquent-, they ignore the fact that for the 10-year period involved, petitioner may actually not (and should be presumed not to) have been required to pay any sums whatever under the act and may not at any time, or now, be delinquent in any respect or in any amount; they would, upon legally false premises and illogical deductions, compel a small businessman to endure financial ruin because he has not the cash with which to meet an exaction which is, under the rules of pleading, presumptively unlawful (respondent does not even urge otherwise on this appeal), before he can get before the courts of this state to determine the factual issues, if any there should be.
It seems to me also that if it is the view of this court that upon the pleadings petitioner is liable for and is delinquent in paying the contributions sought by respondent, then it should in reason and fairness to both parties unequivocally so declare at this time, rather than to subject the parties and the courts to the burden of another suit by petitioner *738(provided it is able to raise the funds to prosecute it) to recover contributions which on this appeal, under applicable rules of law, respondent concedes it is not entitled to.
As is stated (and expounded with unchallenged documentation) in my concurring opinion in Eisley v. Mohan, ante, p. 637 [192 P.2d 5], it is my view that it is sounder procedure, and better law, to follow the general rule of the federal, and many other jurisdictions, and to maintain the extraordinary remedies as available when extraordinary circumstances are presented and when another adequate remedy is not provided.
Concerning petitioner’s contention that it is entitled to mandamus on the ground that its remedy at law is inadequate, the opinion of the Chief Justice recognizes that the cases of Bodinson Mfg. Co. v. California E. Com. (1941), 17 Cal. 2d 321 [109 P.2d 935], Lockhart v. Wolden (1941), 17 Cal.2d 628 [111 P.2d 319], and Dufton v. Daniels (1923), 190 Cal. 577 [213 P. 949], upon which petitioner relies, are “merely declaratory of the general rule set forth in section 1086 of the Code of Civil Procedure. ’ ’ It seems to me that the statute in question (Unemployment Insurance Act, § 45.11 (d) is also “merely declaratory” of the same general rule as to the situations in which mandamus will lie, and that we are here presented with just such a situation.
■ As appears from the authorities discussed in my concurring opinion in Eisley v. Mohan, ante, p. 637 [192 P.2d 5], a similar federal statute (26 U.S.C.A., § 3653(a), formerly E.S. § 3224), is construed by the federal courts, including the United States Supreme Court, as being merely declaratory of the prior rule in equity and does not prohibit a suit in equity to restrain the collection of a tax where the tax is illegally exacted and the taxpayer has no adequate remedy at law.
It is a familiar principle that in adopting legislation the Legislature is presumed to have “had knowledge of existing judicial decisions and enacted statutes in the light of such decisions as have a direct bearing upon them” (23 Cal.Jur. § 159, p. 783), and “It is settled that if a statute of another state or country, which has been construed by the courts of that jurisdiction, is adopted in California, it will be presumed to have been adopted with the construction so given it, unless the language is changed in some way to express a different intent. In construing such a statute, the decisions of the *739courts of the state or country from which the statute was derived are entitled to great consideration, and their interpretation of the statute will ordinarily be followed. This rule applies in construing a California statute modeled upon or adopted from a federal act.” (23 Cal.Jur. § 172, pp. 794-795; see also 59 C.J. 1065-1069; 50 Am.Jur., pp. 315, 357.)
I would follow the federal construction of the federal statute and hold that the California statute under discussion is merely declaratory of the prior equitable principles historically applied by courts and was not intended to forbid resort to those principles in cases involving exceptional circumstances. Here respondent seeks to exact from petitioner contributions, plus interest and penalties,' extending back for a period of approximately 10 years—contributions which respondent took no steps to claim during that period, which, by the manner of its attack on the petition, it now concedes are not legally owing, and which now aggregate such a total that payment will force petitioner into “receivership and bankruptcy,” with the inevitable result that it may never be able to secure a refund. To hold that under such circumstances it may not apply to the courts for appropriate relief appears to me to be contrary to natural justice and to the fundamental principles of our system of government and courts. As aptly declared in Higgins Mfg. Co. v. Page (1927; D.C.), 20 F.2d 948, 949 (where defendant sought to collect a tax even though such tax was judicially determined to be illegal) “where there is no adequate remedy at law, the court should have power to grant relief; otherwise, the citizen will be more at the mercy of the departments of the . . . government than is consistent with life in a free country.”
I would reverse the judgment on the further ground that the power to issue writs of mandate is expressly confirmed in the courts of California by the state Constitution (Const., art. VI, §§ 4, 4b, 5) and that the Legislature may not, independently of constitutional provision, forbid the issuance of mandamus in any case in which there is no other adequate remedy. (See Miller & Lux v. Board of Supervisors (1922), 189 Cal. 254, 260 [208 P. 304].) “In this state . . . the law is now established that mandamus is the remedial writ which will be used to correct those acts and decisions of administrative agencies which are in violation of law, where no other adequate remedy is provided. [Citations.] . . . Thus the writ has been *740used not only to compel administrative action which was refused in violation of law [Citations], but also to annul or restrain administrative action already taken which is in violation of law. [Citations.] ” (Bodinson Mfg. Co. v. California E. Com. (1941), supra, 17 Cal.2d 321, 329.) This court has declared, in a parallel situation involving its appellate jurisdiction, that “ ‘The courts of this state derive their powers and jurisdiction from the constitution of the state. The constitutional jurisdiction can neither be restricted nor enlarged by legislative act. An attempt to take away from the courts judicial power conferred upon them by the constitution is void. ’ (Pacific Telephone etc. Co. v. Eshleman, 166 Cal. 640, 690 [137 P. 1119, Ann.Cas. 1915C 822, 50 L.R.A.N.S. 652].) . . .
“And if the legislature cannot take away this right by direct enactment neither can it accomplish the same result by any indirect device. While the legislature has, ordinarily, the power to create a new remedy for the enforcement of a right or a defense against a wrong, it cannot, under the guise of creating a new statutory remedy, deprive a litigant of an existing constitutionally guaranteed right to defend, even unto a court of last resort, against the enforcement of an alleged right ... In other words, the legislature cannot by the creation of a new remedy deprive this court of its constitutional grant of appellate jurisdiction if the right involved in the execution of the remedy' is of a character which in its very essence is equitable and was of an equitable nature and character at the time of the adoption of the constitutional provision which gave to this court appellate jurisdiction over the subject matter of the remedy.” (In re Sutter-Butte By-Pass Assessment (1923), 190 Cal. 532, 536-537 [213 P. 974].)
The opinion of the Chief Justice attempts to find support for the statute’s purported curtailment of the constitutional powers of the courts in the undisputed proposition that “Except as the Constitution otherwise provides, the Legislature has complete power to determine the rights of individuals,” provided the word “determine” be understood as being used in the sense of “defining in advance or prospectively” and not in the sense of either judicial decision or determination on the one hand, or of arbitrary termination on the other. Constitutionally, the Legislature may not, of course, first specify the rights or obligations, whether personal or property, which shall arise under defined circumstances, and then either *741abolish the rights or provide for enforcement of the obligations, without a fair opportunity to the individual citizen to be heard and to protect himself, and, it seems to me, the Legislature should be held to be without power to invest in others— whether individuals or agencies of government—the authority arbitrarily to make and to enforce, regardless of both law and equity, illegal exactions against any individual person. Under the statute the commission is authorized to perform certain ministerial acts; the law itself purports to levy certain contributions upon employers under specified circumstances and authorizes the collection of such contributions; but the majority opinion holds that the commission may levy and unrestrainedly collect exactions not authorized by the act from persons not subject to the act. Such opinion recognizes that the exaction is, or may be, illegal and that the “taxpayer” has a legal right to bring suit to recover it after payment under protest, but holds that the statute is valid in denying to the aggrieved person, whatever the showing, the remedy of mandate or injunction. (Cf., Seaside etc. Hospital v. California Emp. Com. (1944), 24 Cal.2d 681, 683 [151 P.2d 116].) Such holding, which vests a high degree of absolutism in the powers of the commission, in my view is unsound and undesirable.
In support of my view are the holdings in the situations where it is provided that a particular right or cause of action shall no longer exist, where a limitations statute is shortened, where curative taxation acts are adopted, etc.; in such cases the Legislature must allow reasonable periods for the bringing of action to enforce existing rights, is barred from an arbitrary dissolution of those rights, etc. It seems but trite to point out that the so-called “abolition” of the cause of action for breach of promise, relied upon in the opinion of the Chief Justice, was not an abolition of an existing right but a provision that new rights of the proscribed nature should not arise in the future. As to existing causes of action, the Legislature could only shorten the time for the bringing of action to enforce them, and such shortening still was required to allow reasonable time for the exercise of the prior existing rights. Furthermore, in respect to the attempt of the majority opinion to make so stout a crutch of the asserted distinction “between jurisdiction to grant the remedy and the right which is to be vindicated,” it is to be noted that *742the statute in question does not on its face purport to lop off or destroy “the right which is to be vindicated” but, rather, appears to be directed squarely at the remedy; i.e., at the equitable powers of the courts. The pertinent language of the statute is: “No injunction or writ of mandate or other legal or equitable process shall issue in any suit ... in any court against this state or any officer thereof to prevent or enjoin under this act the collection of any contributions . . .” Authority to so limit the constitutional powers of the courts, it has already been shown, is not vested in the Legislature.
In the present case the Legislature certainly, provided other constitutional limitations are observed, had and has the right to define the circumstances under and the extent to which an employer’s obligation to contribute under the Unemployment Insurance Act should arise.* That fact cannot, however, obscure the further circumstance that after so defining an employer’s rights and obligations the Legislature is without power, in the absence of providing another adequate legal remedy, to forbid his resort to mandamus to secure a judicial determination of whether he falls within those definitions; it is likewise without authority to curtail the constitutional power of the courts to issue mandamus to protect the rights of a person where, as here, it is admitted or shown that he is not an employer, that he is not subject to the act, that the assessment is illegal, that he will be irreparably damaged, and that there is no other adequate remedy available. And in any case the determination of whether any prescribed remedy is or is not adequate is a judicial function, not a legislative one. (See Bodinson Mfg. Co. v. California E. Com. (1941), supra, 17 Cal.2d 321, 326; People v. Associated Oil Co. (1930), 211 Cal. 93, 98 [294 P. 717].) I would not abandon that function or seek escape from the responsibility of exercising it.
The judgment should be reversed.
Carter, J., concurred.
Modern Barber Colleges, Inc., is the alter ego of E. M. Robinson; either the corporation or Mr. Robinson may be deemed to constitute the petitioner.
It should be noted that, as set forth in subdivision (a) of section 9 of the act, “ ‘Employer’ means: (a) Any employing unit, which . . . has ... in employment one or more individuals . . ., provided that prior to January 1, 1946, employer means any employing unit which . . . has or had ... in employment four or more individuals." (Italics added.) Thus, if petitioner had less than four employes for the period of time involved in this controversy, it was not then subject to the act.
See Seaside etc. Hospital v. Cal. Emp. Com. (1944), supra, 24 Cal.2d 681, 683, in which it was held that mandamus was a proper remedy “to compel appellant [commission] to rule that it [petitioner hospital] was exempt from the operation of the act . . ."; in the case at bar, it will be remembered, upon the record it is admitted that petitioner is not an “employer" within the act and is not subject to its operation.