The appellant contends that the protests should have been in writing and further that, whether written or oral, the law requires that a protest shall specify the particulars in which the assessment is claimed to be illegal.

Section 3819 of the Political Code provides that the protest there authorized must be in writing and must specify the grounds upon which the payer claims that the tax is void. But this section refers only to ordinary taxes for state and county purposes. It does not apply to special assessments made under the Street Opening Act of 1903 nor to other special assessments, except where the act providing therefor makes the provisions of section 3819 applicable. (Davis v. San Francisco, 115 Cal. 67, [46 Pac. 863]; Easterbrook v. San Francisco, 5 Cal. Unrep. 341, [44 Pac. 800]; Phelan v. San Francisco, 120 Cal. 4, [52 Pac. 38]; Justice v. Robinson, 142 Cal. 199, [75 Pac. 776].) The act of 1903 contains no provision on the subject. [5] Consequently the sufficiency of the protests in question must be determined by the rules of the common law. (Justice v. Robinson, supra. The common-law rule is that a writing is not essential to the validity or effect of any transaction or contract. Careful persons resorted to writings in order to preserve a more accurate memorial of the terms of the agreement or statement so as to facilitate the proof thereof. But this was a measure of convenience only and the affair, when proven, was, at common law, as effectual when in parol as when it was in writing. [6] It was competent, therefore, for the parties to make their protests in parol, and it necessarily follows that the court did not err in admitting the testimony of the conversations on the subject between the persons making the payments and the collecting officer at the times of the respective payments. It being a matter that could have been accomplished in parol, all the conversation and all the circumstances that would tend to show the understanding of the parties regarding the matter at the time the respective payments were made would be admissible.

[7] We think an analysis of our decisions shows that under the circumstances of this case it was not necessary that the grounds should be specified at the time of making the payment. The question was under discussion in Meek v. McClure, 49 Cal. 628, where the court said: "In most of the cases

in which the effect of a protest is considered, the payment was made to a public officer; and the only purpose of the protest was to give the officer notice that the money was not legally due, and thus to enable the officer to protect himself against the consequences of an action to recover the money back from him. The officer is thereby put on inquiry as to whether the money is legally due; and if he finds that the demand is illegal, he may protect himself by refusing to receive the money; or, if he finds that it is of doubtful legality, he may take the proper steps to avoid, or protect himself against responsibility. If the officer has notice of the matter which renders the demand illegal, another notice in the form of a protest would be useless; but if he has no knowledge of such matter, he ought not to be subjected to the costs and consequences of an action to recover the money from him-and that, too, perhaps, after he has paid over the money in the usual course of official business-without notice from the party paying the money of the grounds upon which he claims that the demand is not legally due. It is true that in that case the court further said that wherever a protest is essential, it was "necessary to state the grounds upon which the party paying the money claims that the demand is illegal." But that was an action against the collecting officer alone, and there was nothing to show that he had actual knowledge of the defect which made the tax void and the statement last quoted obviously referred to that phase of the case. In Mason v. Johnson, 51 Cal. 612, the protest did not state the grounds upon which it was claimed the tax was void, but merely stated that it was unlawful. The officer was not authorized by law to collect the tax. The court held the protest to be sufficient, because the tax collector was bound to take notice of the matter which rendered the tax illegal," it being a matter of law. So in Smith v. Farrelly, 52 Cal. 77, a tax was held to be illegal because it was made by a county assessor instead of a district assessor, and the tax collector of the county was not authorized to collect it because of the fact that he was elected as the county tax collector and not as the district tax collector. The protest did not state either of these facts as grounds thereof. It was held that this was not necessary, because the tax collector must know that he was not elected as the tax collector of the district and that the assessment had not been CLXXX Cal.-8

made by the proper assessor, the court saying: "It is not necessary for the person paying taxes under protest to state facts of which the tax collector has notice." Parenthetically, it may be remarked that the court in that case further decided that a tax paid after the delinquent list had come into the hands of the tax collector, and after the publication of the notice of the delinquent sale, was a payment under duress. Again, in De Fremery v. Austin, 53 Cal. 382, the court said on this subject: "The protest in this case does not specify any grounds of illegality of the taxes. It was not necessary for the plaintiffs to specify the illegality of the tax upon the solvent debts, or of the state tax upon the other property, for the tax collector is chargeable with notice of their illegality; but if they desired to recover back any portion of the tax on the ground that the levy for certain of the funds specified in the order of the board levying the city and county tax was illegal, they should have specified the grounds of the alleged illegality of the tax, for there is nothing in the case showing that the tax collector was chargeable with notice of the alleged illegality." In each of these cases the action was against the collecting officer alone. The public corporation for which he acted was not sued. In the case at bar the action is against the city of Los Angeles. The members of the board of public works are also parties defendant, but, as will presently appear, they are not personally or officially liable in the action. The case may therefore be considered as if it were against the city alone. The action in the Walker case was express notice to the city, and to all of its agencies empowered to act on the matter, that the plaintiffs therein claimed that these assessments were illegal and of the particular facts upon which such claim was based. [8] It is obvious that no further information to the city was necessary. The rule established by the foregoing decisions is that even in cases where the collecting officer has not paid over the money and is therefore still subject to action, specifications of the grounds of protest are not necessary where such officer is chargeable with knowledge of the illegality of the tax, or is aware of the facts which make it illegal, and that in such cases a general statement that it is illegal is sufficient. We conclude, therefore, that the evidence was sufficient to support the finding, at least with respect to all the payers who were parties plaintiff in the Walker case

and who paid after the notice of sale was given and who paid under protest.

There were two of plaintiffs' assignors, Abbott and Straube, who paid their assessments before the notice of sale was given. As has already been shown, there was at that time no duress of property. There was only an apparent lien upon that property. At that time no proceeding to enforce the lien by a sale had been instituted. The protest was therefore unavailing. (Brumagim v. Tillinghast, 18 Cal. 266, [79 Am. Dec. 176].) The judgment, so far as these claims are concerned, was erroneous, because the payments were voluntary.

2. The judgment in this case exceeds the aggregate amount of the payments which were allowed to plaintiffs by about nine thousand dollars. The appellants claim that it is excessive to that extent. The excess is made up of interest accruing on the payments from December, 1911, to the date of judgment. It has become established by our decisions that in an action to recover taxes paid under protest under section 3819 of the Political Code no interest from the time of pay ment to the date of judgment can be allowed. (Savings & L. Society v. San Francisco, 131 Cal. 356, [63 Pac. 665]; Columbia Savings Bank v. Los Angeles, 137 Cal. 471, [70 Pac. 308]; Miller v. Kern County, 150 Cal. 797, [90 Pac. 119].) In the Columbia Savings Bank case the court said that interest was not allowable for the reasons, first, that the statute did not provide for it; second, that the money could not be said to be due from the county "until its liability was fixed by the judgment of a court of competent jurisdiction," and, third, that it was not a loan of money which could be presumed to be made upon interest. [9] We think the same rule should apply to money paid under protest and governed by the common law, and that the proper rule applicable here is that interest should not have been charged against the city of Los Angeles until the invalidity of the assessments was established by the final judgment of the court against the city in the action of Walker and Others v. Los Angeles aforesaid. That judgment established the invalidity of the assessment and settled the question that the defendant city was withholding money from the plaintiffs without right. It brings the case within the provision of section 1915 of the Civil Code, allowing interest for the "detention of money." It is true that,

while the assignors of plaintiffs were parties to that action at the time the payments were made, they afterward withdrew therefrom and dismissed the action so far as they were concerned, but it is at least a fair presumption that this withdrawal was made because of the fact that in the meantime they had preserved their rights to recover the money by making the protest accompanying the payment thereof, and under these circumstances we see no reason why they were not entitled to interest as soon as it was adjudged that the city had no right to exact payment and that it was unjustly withholding the money from the plaintiffs. The court erred in so far as it allowed interest for a time antedating the final judgment in that action.

3. The judgment appealed from purports to run, not only against the city of Los Angeles, but also against the persons who at the time of the payments were members of the board of public works, and against the board of public works also. The board of public works is an agency of the city; it has no separate corporate existence, and so far as we are aware it is incapable of either suing or being sued, except perhaps in mandamus to compel the performance of its duty. Consequently the judgment, so far as the board is concerned, is unauthorized. With respect to the liability of the members thereof who were in office at the time the payments were made, it appears from the evidence that the money collected upon these assessments was all paid into the treasury of the city and paid out of the treasury in satisfaction of damages awarded to the persons whose lands were taken and damaged by the opening of the street, and that this all occurred before the beginning of the present action. [10] It is settled by our decisions that an action will not lie against collecting officers or boards, such as the board of public works and its members, to recover money paid upon an illegal assessment, unless the money still remains in the hands of the board or its members at the time such action is begun. (Hartford etc. Co. v. Jordan, 168 Cal. 270, [142 Pac. 839]; Craig v. Boone, 146 Cal. 718, [81 Pac. 22].) [11] It follows that the judgment against the members of the board is not sustained by the evidence.

4. As has just been said, there can be no recovery in cases like the present against one who is a mere collection officer