Petitioner, the California Employment Stabilization Commission, brought an action in the Municipal Court of the City and County of San Francisco to recover unemployment insurance taxes in the sum of $251.27 alleged to be due from Waters and Ross, co-partners. Defendants filed an answer in which they denied that they “have been employers within the meaning of the Act mentioned, at the time mentioned, or at any other time”; denied that they “ever have been or are now subject to the said statute”; and denied “that any employments with which these defendants were concerned were subject to the said Act.” As a separate defense, defendants alleged that the payments made by them, and referred to in- the complaint, were made to certain persons as independent contractors and not as employees of defendant. Thus, the controversy, as disclosed by the pleadings, is over whether certain persons, to whom Waters and Ross admittedly made payments, were employees subject to the taxing act, or were independent contractors not subject to the act.

After the filing of the answer the petitioner moved the municipal court to transfer the action to the superior court on the grounds that it involved the legality of a tax, and that the superior court has exclusive jurisdiction over such a controversy. The motion was denied and the cause set for trial. Petitioner thereupon petitioned this court for a writ of prohibition to restrain further proceedings in the municipal court. This court issued an alternative writ of prohibition and also, in order to grant full relief, an alternative writ of mandamus to compel, if the facts should warrant such relief, the transfer of the cause to the proper court.

The technical respondents and the real parties in interest have filed a demurrer to the petition unsupported by points and authorities, and have filed no other opposition to the issuance of the writs.

Section 89 of the Code of Civil Procedure denies to the municipal court and confers upon the superior court exclusive jurisdiction over cases involving “the legality of any tax, impost, assessment, toll or municipal fine.” Under the provisions of section 396 of the Code of Civil Procedure it is made the mandatory duty of the municipal court to transfer cases improperly in that court to the superior court whenever it shall appear—either from the pleadings or at the trial—that the cause is not within the jurisdiction of the municipal court.

The complaint here involved was framed on the theory that the defendants named were employers within the meaning of the act and had not paid the tax imposed by the statute. The complaint, therefore, did not disclose that “the legality of any tax” was involved, and since the amount sued for was within the monetary jurisdiction of the municipal court, so far as the complaint is concerned, the action was within the jurisdiction of the municipal court. But the answer directly denies that Waters and Boss are employers within the meaning of the taxing statute, and avers that the alleged employees are in fact independent contractors.

That such a controversy involves “the legality of any tax,” as those terms are used in section 89 of the Code of Civil Procedure is no longer open to question. The precise question as to whether a controversy over the validity of a tax levy, where the employer denies that he is subject to the very tax statute here under discussion, involves “the legality of any tax” within the meaning of section 89 was recently passed upon by this court in the case of Unemployment etc. Com. v. St. Francis Homes Assn., 58 Cal.App.2d 273 [ 137 P.2d 64 ], In that case, as in the instant one, the defendants, by answer, denied that they were employers within the meaning of the act. It was urged that the phrase “legality of any tax” as used in section 89 of the Code of Civil Procedure had no application to controversies over’the validity of a tax assessment where the validity of the taxing statute was not challenged. The majority of this court held that the phrase in question applied to controversies involving the validity of the tax assessment. The discussion is so directly applicable to the present controversy that we quote therefrom at some length. At page 280 it is stated:

At the oral argument counsel for Waters and Ross, while not denying that the above reasoning, if sound, compels the conclusion that the superior court has exclusive jurisdiction over the controversy in question, contended that the above reasoning was not sound, and that what was said in the St. Francis Homes Association case, supra, was merely dicta, and should not be followed. It is our opinion that the above holding was not dictum, but constituted an alternative ground of the decision. “It is well settled that where two independent reasons are given for a decision, neither one is to be considered mere dictum, since there is no more reason for calling one ground the real basis of the decision than the other. The ruling on both grounds is the judgment of the court and each is of equal validity.” (Bank of Italy etc. Assn. v. Bentley, 217 Cal. 644, 650 [ 20 P.2d 940 ]; see, also, People v. Reid, 195 Cal. 249 [ 232 P. 457 , 36 A.L.R. 1435 ]; East Bay Municipal Utility Dist. v. Kieffer, 99 Cal.App. 240 [ 278 P. 476 , 279 P. 178 ]; Union Pac. Ry. Co. v. Mason City & Ft. D. R. Co., 199 U.S. 160 [ 26 S.Ct. 19 , 50 L.Ed. 134 ]; 7 Cal.Jur. 641, § 45.)

However, even if it be conceded that the holding in the St. Francis Homes Association case, supra, was dictum, we are convinced that, treating the problem involved as a new problem, such holding was correct. We therefore adopt the portions of the opinion in the St. Francis Homes Association case above quoted as the opinion of the court in the instant case.

It follows that the municipal court has no jurisdiction to try the controversy here involved, and for that reason a peremptory writ of prohibition should issue to prevent that court from continuing to exercise jurisdiction over the controversy. A peremptory writ of mandamus should also issue to compel the municipal court to transfer the cause to the superior court pursuant to the mandatory provisions of section 396 of the Code of Civil Procedure.

It is so ordered.

Ward, J., and Dooling, J. pro tern., concurred.