Moroney

Respondent County Clerk of Los Angeles County has refused to accept for filing or file without the payment of a fee of $3.50, an answer of the State Franchise Tax Commissioner in his capacity as such, in an action pending in the superior court of that county to recover franchise taxes paid under protest pursuant to the Bank & Corporation Franchise Tax Act. (Stats. 1929, p. 19, as amended; Leering ’s Gen. Laws, 1937, Act 8488.) The action is against the commissioner in his official capacity as an officer of the State and is in accordance with the provision for such actions contained in section 30 of the Bank & Corporation Franchise Tax Act. In the instant proceeding petitioner, the State of California, seeks a writ of mandate to compel respondent to accept and file the answer.

The difficulty arises over the interpretation of section 261b which was added to the Code of Civil Procedure in 1943. (Stats. 1943, eh. 1031.) That section provides for the appointment in counties having a population of 900,000 or more of phonographic reporters for the superior court in such counties who shall receive an annual salary of $4,800 in lieu of any fee from the parties to the litigation excepting…