COUNTY OF MONTEREY, Appellant, v. E. K. ABBOTT, Respondent, 77 Cal. 541

The Court. This cause was heard before Department One, and a decision given on the 3d of May, 1888. Upon rehearing, nothing has been called to our attention which should induce us to change the result then reached. Judgment affirmed. The following is the opinion of Department One above referred to:— McKinstry, J. It appeared from the answer of the defendant in the justice’s court, verified by his oath, that the determination of the action would necessarily involve the legality of the license tax sued for.

The justice, therefore, properly suspended proceedings in the action, and certified the pleadings to the superior court. (Code Civ. Proc., sec. 838.) It is contended by appellant that the statement in

section 1 of the license order that it is ordained pursuant to the act of March 13, 1883 (adding

section 4045 to the Political Code), is mere surplusage, and that the supervisors had power to pass the ordinance under sections 11 and 12 of

article 11 of the constitution, (Ex parte Wolters, 65 Cal. 269; Ex parte Mount, 66 Cal. 448; Ex parte Lawrence, 69 Cal. 608; In re Guerrero, 69 Cal. 90.)

Section 8 of the ordinance provides that actions to collect license taxes shall be commenced in the name of the people. But appellant contends that this

section of the ordinance is void, there being a general law requiring all actions—except as provided in

section 369 of the Code of Civil Procedure—to be brought in the name of the real party in interest (Code Civ. Proc., sec. 367); that here the county was the real party in interest. If by

section 12 of

article 9 of the constitution the county has power to impose license taxes, and to provide the mode of collecting them, the ordinance does provide that the mode shall be by action brought in the name of the people. On the other hand, the failure to take out a license did not of itself make the defendant a debtor of the county in such sense that an ordinary action, in the nature of an action for debt, could be maintained by the county as “ the real party in interest.” Neither the constitution nor any statute made him such.

If, therefore, the action could not be maintained in the name of “ the people,” it could not be maintained at all. Where a right is given and a remedy provided by statute (or ordinance, if valid), the remedy so provided must be pursued. True, where the right exists at common law, independent of statute, the remedy provided by statute may be regarded as cumulative. (People v. Craycroft, 2 Cal. 244; 56 Am. Dec. 331.) But here the obligation is created by statute, and the remedy is derived (if any remedy is furnished) directly or indirectly from statute. Judgment affirmed. Searls, C. J., and Paterson, J., concurred.