I dissent.
The county tax refund procedure, as mentioned in the majority opinion, was prescribed by the general law at the time these actions were commenced and provided two distinct, and in certain instances cumulative, remedies for the refund and recovery of taxes, sections 3804 and 3819 of the Political Code. With the remedy afforded by section 3804, *737which in express terms calls for the filing of a verified claim, we are not here concerned. Plaintiffs elected to seek relief in the manner specified in section 3819, paying the tax under protest and thereafter filing the present actions for its recovery. Coneededly they filed no claim or demand for refund with either the city council or the board of supervisors. Although this procedure satisfied the express demands stated in section 3819, it failed to take note of the further requirement found in section 4075 of the Political Code for presentation of a claim to the board of supervisors before the bringing of any action thereon. The question, therefore, is whether compliance with the claim requirement of section 4075 is a condition precedent to maintenance of an action for tax refund grounded upon section 3819.
In the case of Birch v. County of Orange, 186 Cal. 736 [200 Pac. 647], decided in 1921, it was contended by the county, but without success, that under the general county system no suit for refund based upon section 3819 could be maintained unless a claim had been filed. The county relied upon section 4075 of the Political Code as then in force, but at that time said section did not require the filing of a claim with the board of supervisors as a prerequisite to institution of an action against the county. In 1931, however, which was after the decision in the Birch case and prior to the filing of the present actions, section 4075 was amended in such a manner as to expressly provide that all claims against the county must be filed with the board of supervisors before suit may be instituted thereon. The Birch case was properly decided under the law as it then stood, but it cannot control the decisions in the present actions, which were commenced subsequent to the change in the statute.
There is no escape from the conclusion that at all times since the amendment of section 4075 the filing of a claim has been a prerequisite to maintenance of an action under section 3819. This pronouncement could be supported by tracing the history and effect of claims statutes in force in this state, and by reviewing the numerous cases construing such statutes. See, for example, McCann v. Sierra County, 7 Cal. 121; People v. Supervisors, 28 Cal. 429, 430; Alden v. County of Alameda, 43 Cal. 270; Rhoda v. Alameda County, 52 Cal. 350; Arbios v. County of San Bernardino, 110 Cal. 553 [42 Pac. 1080] ; Bancroft v. City of San Diego, 120 Cal. *738432 [52 Pac. 712] ; Farmers etc. Bank v. City of Los Angeles, supra; Keyes v. San Francisco, 177 Cal. 313 [173 Pac. 475] ; Western Salt Co. v. City of San Diego, 181 Cal. 696 [186 Pac. 345] ; Birch v. County of Orange, supra; City of Los Angeles v. County of Los Angeles, 9 Cal. (2d) 624 [72 Pac. (2d) 138, 113 A. L. R 370] ; 7 Cal. Jur., p. 549; Thiel D. Co. v. Tuolumne County, 37 Cal. App. 423 [173 Pac. 1120]; Rhoda v. County of Alameda, 134 Cal. App. 726 [26 Pac. (2d) 691] ; Johnson v. City of Glendale, 12 Cal. App. (2d) 389 [55 Pac. (2d) 580].
A digest of these authorities would serve no purpose but to add to the length of this dissent. My conclusion herein as to the effect of the amendment to section 4075 may be based upon what I regard as the clear and unambiguous meaning of the wording thereof. Regardless of the proper construction and application of the statute prior to this amendment, or the extent to which the amendment may have been intended to alter the former rule, its plain language admits of but one interpretation, and that is that the filing of a claim is a condition precedent to maintenance of suit thereon.
As stated in the amendment, which comprises a separate paragraph appended to the former section: “All claims against any county or against any public officer in his official capacity payable out of any public fund under the control of the board of supervisors, whether such claim be founded upon contract, express or implied, or upon any act or omission of the county or any officer or employee thereof, or of any district or public entity the funds of which are controlled by the board of supervisors, or of any officer or employee of any such district or public entity, shall be presented to the board of supervisors as herein provided before any suit may be brought on any such claim, and no suit shall be brought on any such claim until said claim has been presented as herein provided and rejected in whole or in part. In presenting any claim not founded upon contract full details as to the nature of the claim . . . shall be stated . . . and in all other respects such claims shall be presented and acted upon in the same manner as claims founded upon contracts. ’ ’
The statute expressly provides in clear and unambiguous terms that “no suit shall be brought on any such claim [that *739is, a claim against the county] until said claim has been presented as herein provided”. A court could not, under the guise of judicial construction, limit such language by holding that certain classes of suits might be filed without the prior filing of a claim, even though that might appear from a judicial viewpoint to be the more reasonable mode of procedure. It would be difficult to conceive how the legislature could possibly have made a broader provision with reference to the necessity of filing a claim prior to the institution of any action against the county.
The argument that section 3819 is a special statute dealing only with the recovery of taxes illegally paid while section 4075 is a general statute applying generally to claims against the county, and therefore the special statute prevails over the general statute, is effectively answered by the decision of this court in the case of Farmers etc. Bank v. City of Los Angeles, supra. In that ease it appears that the city by its charter provided that the mode and manner of collecting municipal taxes and enforcing tax liens should be substantially the same as that prescribed by law for the collection of state and county taxes. In rendering its opinion this court assumed that section 3819 was applicable to the City of Los Angeles. Section 4075 did not then require the presentation of a claim to the board of supervisors as a prerequisite to the institution of an action on such claim. But the charter of the city did provide that all claims and demands against the city, except for principal and interest on bonds, should be presented to the city council, and that no suit should be brought upon any such claim until it had been presented “as herein provided and rejected in whole or in part”.
This court held that in an action to recover taxes paid under protest under the provisions of section 3819, a complaint that failed to state that a claim had been presented to the city council as provided by the charter of said city did not state facts sufficient to constitute a cause of action, and affirmed the judgment of the trial court holding the complaint fatally deficient for that reason. That case, in respect to the applicability of the law requiring presentation of a claim before suit, is the exact counterpart of the present action. There it was held that the general provisions of the charter, requiring all demands to be presented to the city council before suit, applied to actions brought under section 3819 of *740the Political Code for the recovery of taxes paid under protest. This is the precise question we have before us in the present action. The decision in that case has never been overruled directly or by implication. It has stood for over thirty years, and must now be regarded as the settled law of this state.
The reason for requiring the presentation of a claim before suit has been well stated by this court in the following language: “While it is true, so far as we have discovered, that the question has never been discussed in connection with a claim for the recovery of taxes paid under protest, we can perceive no material difference between such a claim and claims of the character considered in some of the decisions above cited. Such claims are often settled and paid when presented, and the- presumption is that they always will be so paid if they are just. The policy of the law applies as well to them as to other demands against a city, and the reasons for the rule when applied to such a claim are as cogent as when applied to any other claim. We find in the law no method by which the city can voluntarily refund taxes illegally collected, without the presentation of a claim therefor, and if these provisions of the charter are not applicable, it would follow that the city must in every case be subjected to the costs of a suit even though the proper officers consider the claim a just and legal one, and are willing to pay the same.” (Farmers etc. Bank v. City of Los Angeles, supra, p. 658.)
I find nothing decided in the Birch ease which is inconsistent with this rule when applied to actions brought under section 3819 of the Political Code. There may be certain language in said decision which would give that impression, but a reading of the entire opinion shows conclusively that such is not the case. On the other hand, in the Birch case, the court held that Birch was not required to present his claim to the board of supervisors of the county for the reason that there was no statute or section of the code making the presentation of such a claim a prerequisite to bringing suit thereon. This is apparent from the following statement appearing on page 743 of the opinion in that ease: “Farmers’ and Merchants’ Bank v. Los Angeles, 151 Cal. 655 [91 Pac. 795], cited by respondent, was an action brought to recover taxes paid to the city of Los Angeles under protest, and it was there held that the claim should have been presented to the city council *741before suit was commenced. But that decision was in pursuance of an express provision of the Los Angeles charter that ‘No suit shall be brought for any claim for money or damages against the City of Los Angeles . . . until a demand has been presented as herein provided and rejected in whole or in part . . . ’ That action was not brought directly under the state law, but under a similar ordinance of the city of Los Angeles which, of course, was subject to the limitations of the city charter. Under earlier decisions in this state the same rule was applied in suits against a county but these decisions were under a statute which expressly required such presentation to be made to the board of supervisors in all cases before action could be maintained. (McCann v. Sierra County, 7 Cal. 121; Alden v. Alameda County, 43 Cal. 270, 272; Rhoda v. Alameda County, 52 Cal. 350; Keyes v. San Francisco, 177 Cal. 313, 319 [173 Pac. 475].) We have no such sweeping requirement at the present time which would hold against a reasonable implication under a special statute to the contrary.”
The court in speaking of the “sweeping requirement” must have referred to the provision of the city charter of the City of Los Angeles providing for the presentation of claims to the city council before suit may be brought and making such prior presentment a prerequisite to the institution of an action on such claim. As we have indicated above, section 4075 as amended in 1931 of the Political Code is just as “sweeping ’ ’ in its requirement as was the section of the City Charter of Los Angeles considered in the Farmers’ and Merchants’ Bank case and it was because said section before its amendment contained no such requirement that the court held that Birch could recover without a prior presentation of his claim. That such was the case clearly appears from the following statement in the opinion in the Birch case, at page 742: “Section 4075 does not purport to declare what claims shall be presented to the board of supervisors as a prerequisite to bringing suit, but prescribes the manner in which certain claims shall be itemized and presented before the board may pass upon them.” That statement was true of said section as then in force, but not after its amendment, as it now expressly declares that, “All claims against any county . . . shall be presented to the board of supervisors . . . and no suit shall be brought on any such claim until said claim has been pre*742sented as herein provided.” Can it be said with any reason that had this “sweeping requirement” of section 4075 been a part of said section 4075 at the time the Birch ease was brought, the decision of the court would not have been different? I think it clearly appears from the facts of that ease and the language of the opinion that it would not have been so.
The requirement that claims against the state, a county, or other political division of the state, be filed with the governing body or board charged with the responsibility of paying said claim has become almost the universal practice in this state. Practically all of the city and county charters which have come to the attention of this court contain a section making the filing of a claim a prerequisite to the bringing of an action thereon. Claims against the state must be presented to the State Board of Control before any suit may be brought thereon against the state. (Secs. 667, 688, Pol. Code.) The Retail Sales Tax Act requires a taxpayer to file a claim with the State Board of Equalization as a condition precedent to maintaining a suit to recover sales taxes erroneously collected under said act, notwithstanding the Board of Equalization may have previously heard and determined the taxpayer’s petition for reassessment. (Secs. 20, 23 and 31, Retail Sales Tax Act, Stats. 1933, p. 2599, as amended.) Like provisions are contained in the Use Tax Act. (Secs. 12, 17 and 25, Stats. 1935, p. 1297, as amended.) The Personal Income Tax Act (Stats. 1935, p. 1090, as amended), section 20 requires the filing of a claim for any refund of taxes paid under said act before the same may be paid, and a similar provision is to be found in section 27 of the Bank and Corporation Franchise Tax Act. (Stats. 1929, p. 19, as amended.)
It is true that under certain statutes like, for instance, section 3669a of the Political Code, a person claiming that an assessment of the Board of Equalization is void in whole or in part may pay the state treasurer the taxes assessed against him by the board by reason of said assessment, under protest, and may thereafter sue the treasurer for the amount claimed to be illegally assessed against him without filing any claim therefor with the state treasurer. Apparently it was so provided for the reason that in such cases the verified protest is made to the very officer against whom the suit to recover the *743protested payment may be instituted and for that reason he is thereby fully informed as to the nature of the taxpayer’s claim. But when the taxpayer brings his suit against the state on this same claim he is precluded from recovery unless, before bringing suit, he files with the State Board of Control his claim under the general section of the code (sec. 688, Pol. Code), which section requires that all claims against the state must be presented to the Board of Control before suit may be brought thereon. (Bekins Van & Storage Co. v. State of California, 135 Cal. App. 738, 741 [28 Pac. (2d) 61].)
Plaintiffs argue in the present cases that there is no necessity of filing a claim with the board of supervisors after they had filed their written protest with the county tax collector. The same argument could well have been made and probably was made in the Bekins case, and it was answered by the court by pointing out the statute, section 688 of the Political Code, which made it necessary. The difference between the Birch case and the Bekins ease is that the court in the former case was of the opinion that the filing of such a claim with the board of supervisors may have been of doubtful value and as there was no provision of law requiring such filing, held that it was not necessary. In the Bekins case, however, the court held that where there was a statute which expressly provided for the filing of a claim before suit, the filing thereof was necessary. The case before us differs from the Birch case as I have heretofore attempted to show, but is precisely like the Bekins ease in that section 4075 of the Political Code, like said section 688 of the same code, made the filing of the claim a prerequisite before suit brought. I think it is obvious from the statutes to which I have called attention that it is the general policy of the state to require as a prerequisite to the institution of an action, the presentation of a verified claim to the proper board, charged with the payment thereof.
The majority opinion cites a large number of cases decided by the appellate courts of this state holding that when an action is brought under section 3819 of the Political Code, or a statute similar thereto, it is not a prerequisite that a claim be filed with the board of supervisors or other governing body before suit may be brought on such claim. Practically all of the cases like the Birch case were decided prior to the amendment of section 4075 of the Political Code in 1931, and for that reason are not applicable to the instant *744action. I think there is no occasion to give any more detailed consideration to these cases and show their inapplicability to any issue before us. A mere reading of them will disclose that fact.
As the complaint in each of these cases failed to state the prior presentation of a claim before action brought, it did not state facts sufficient to constitute a cause of action against either the said county, or the defendant, the City of Los Angeles. The judgment of the trial court in each action should be affirmed.
Gibson, C. J., and Shenk, J., concurred.
Rehearing denied. Gibson, C. J., Shenk, J., and Curtis, J., voted for a rehearing.