The opinion
On petition for rehearing, the court, in Bank, rendered the following additional opinion, which was dated November 26, 1900, and filed November 27, 1900:
A point overlooked in the commissioner's opinion is the defense of the statute of limitations. The claim is that subdivision 1, section 340 , of the Code of Civil Procedure, applies, because this is an action upon a statute for a penalty or forfeiture, and, if so, must have been commenced within one year. *Page 333
What is meant by a statutory penalty was defined in Los Angeles v. Ballerino 99 Cal. 593 , to be "one which an individual is allowed to recover against a wrongdoer as a satisfaction for the wrong or injury suffered, and without reference to the actual damage sustained, or one which is given to the individual and the state as a punishment for some act which is in the nature of a public wrong. The action to recover such a penalty is a penal action founded upon a statute, and is the action which, under section 340 of the Code of Civil Procedure, must be brought within one year."
There is nothing penal in the constitutional provision; it is simply remedial. The action is for money had and received, and recovery cannot be had except after demand and refusal. (Baldwin v. Zadig, 104 Cal. 594 .) But for the constitution there could be no recovery. If the constitution, in effect, makes the margin sales of stock unlawful, it does not follow that the action given to recover the money paid for the purchase of such stock is a penal action, or is for the recovery of a penalty, and certainly the recovery cannot be said to be "without reference to the actual damage sustained," for there is no damage except as measured by the money paid.
Rehearing denied.