Prohibition is not the proper remedy for alleged illegal taxation. (Savings and Loan Society v. Austin , 46 Cal. 455-459; Houghton v. Austin , 47 id. 651; Bucknall v. Story , 36 id. 67; C. P. R. R. v. Corcoran , 48 id. 65; Smith v. Commissioners of Leavenworth, 9 Kans. 300; State Railroad Tax Cases , 92 U.S. 606; Lincoln v. City of Worcester, 8 Cush. 55; Howe v. City of Boston , 7 id. 277.) In Brewer v. City of Springfield , 97 Mass. 152, the Court say that the taxpayer suffers no wrong until he pays the tax; and if it be illegal, he can recover it back. An action for the recovery of money paid under protest, is the remedy prescribed in the State of California for illegal taxation. (Meek v. McClure , 49 Cal. 628; Bank of Mendocino v. Chalfant , 51 id. 369; Smith v. Farrelly , 52 id. 80; Bank of Santa Rosa v. Chalfant , 52 id. 170; De Fremery v. Austin , 53 id. 380.) The writ of prohibition will not run to a Tax Collector, for the reason that he is a ministerial and not a judicial officer. The writ of prohibition will not issue to prevent a ministerial officer from performing acts ministerial. (Camron v. Kenfield , 57 id. 550; Maurer v. Mitchell , 53 id. 289; Spring Valley Water Works v. San Francisco , 52 id. 111.)
The petitioner, in his able brief, attempts to avoid the effect of the decision in the case of Camron v. Kenfield, upon the ground that the Legislature have the power under the Constitution to enlarge the jurisdiction of the Superior Court.
We can not see, from reading the Constitution, where any power is given the Legislature to enlarge the jurisdiction of the Superior Courts that has not been given the same body to enlarge the jurisdiction of the Supreme Court. But it is not a question of the jurisdiction of the Courts, but a question of enlarging the office of the writ of prohibition. Section 5, Article vi., of the Constitution gives the Supreme Court jurisdiction to issue writs of prohibition. Section 5 of the same article gives the Superior Court the same jurisdiction. It can be readilyseen, by comparing the two sections, that both Courts have the same jurisdiction in regard to writs of prohibition. And the Legislature, in their amendment to Section 1102 of the Code of Civil Procedure, did not attempt to enlarge the jurisdiction of either of the Courts; but they did attempt to enlarge the province of the writ of prohibition; and that, we submit, under the decisions of our own State, can not be done. And the decision in Camron v. Kenfield is as applicable to writs issued from the Superior Courts as it is to writs issued from the Supreme Court. Hence we submit that the judgment should be affirmed.
OPINION The Court:
This case is within the principle decided in Camron v. Kenfield , 57 Cal. 550, in which it was held that the Legislature could not enlarge or extend the office of the writ of prohibition so as to include ministerial functions. We perceive no distinction, in this regard, in the provisions of the Constitution relating to the Supreme Court and the Superior Courts.
The judgment and orders appealed from are affirmed.