SHERMAN v. QUINN

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District Court of Appeal, Second District, Division 2, California.

SHERMAN et al. v. QUINN, County Tax Assessor.

Civ. 15688.

Decided: April 08, 1947

Zuckerman & Edmunds, Edward K. Zuckerman, Arthur E. Edmunds, and William E. James, all of Los Angeles, for appellants. Harold W. Kennedy, Co. Counsel, and Gordon Boller, Deputy Co. Counsel, both of Los Angeles, for respondent.

The question for decision is whether a veteran who is a resident of California and a purchaser of real property under a conditional sales contract is entitled to a writ of mandate compelling the county tax assessor to cancel the assessment to the vendor in sucn agreement and to assess the property to the veteran in order that he might have the benefits of the exemption provided by section 1 1/414 of Article XIII of the Constitution.

Appellant Arthur W. Sherman is a verteran of World War II having been honorably discharged from the service on March 23, 1946. On February 20, 1946, he and his wife Audrey, both residents of California, purchased under a conditional sales contract from the Witmer Building Company, a corporation, hereinafter referred to as Witmer, lot 76 of tract 12,358 in Los Angeles county, together with the house and all other improvements thereon. The total purchase price was $8,850 of which appellants paid in cash $3,128.45. They are obligated by the contract to pay $40.47 monthly on account of principal and interest until the balance of $5,721.55 shall have been paid in full, at which time they are to receive a grant deed. They are required also to protect and preserve the property, to maintain it in good condition and to repair any damage thereto occasioned from any cause. Also, they must pay an additional sum of $11.53 per month which Witmer is to hold in trust for the purpose of paying taxes, assessments, and insurance premiums.

Their petition for writ of mandate alleges that appellants do not own property of the value of $5,000; that the assessed value of their improvements is $1,050 and the assessed value of the land is less than $1,000; that prior to the last Monday in June, 1946, Mr. Sherman again demanded that respondent cancel the assessment for taxes on lot 76 to Witmer and to assess the property to appellants; that he answered all questions and gave all information with reference to his claim for a veteran's exemption from taxation under section 1 1/414 and subscribed and swore to an affidavit containing such information, but that his demand for such exemption was rejected on the ground that it was the policy of respondent's office not to assess real property held under a conditional sales contract to the buyer, but that in all such cases it is assessed to the seller.

A general demurrer having been sustained to the amended petition without leave to amend, a judgment of dismissal was entered from which comes this appeal.

Whether the tax assessor can be required to cancel an assessment on real estate against the holder of the legal or record title and to assess it to the buyer who has acquired it under a conditional sales contract has never been decided by an appellate court of this state. In the absence of such decision respondent has preferred to pursue the established policy of his office not to assess real property being purchased under conditional sales contract to the buyer but to assess it to the seller. In maintaining such custom and procedure respondent has ignored a more reasonable course and some respectable authority. It must be accepted as a truism that one who has entered into a contract for the purchase of real property and entered into possession thereof ‘is for all purposes the owner and the vendor retains mere legal title.’ Elliott v. McCombs, 17 Cal.2d 23, 31, 109 P.2d 329, 334. Payment or tender of the entire purchase price is not essential to accomplish a conveyance of the equitable title. Estate of Reid, 26 Cal.App.2d 362, 369, 79 P.2d 451. The seller retains the title merely as security for the payment of the purchase price, but such security for the payment of the purchase price does not entitle him to the occupancy or use of the property or even the right to enter it. The contract in effect grants to vendee the entire beneficial interest in the land. Orange Cove Water Company v. Sampson, 78 Cal.App. 334, 341, 248 P. 526. Under it he assumes all the burdens of ownership; he must pay all taxes and assessments levied against it and comply with all valid rules and ordinances promulgated by constitutional authority in so far as they relate to the property. So long as the buyer complies with the terms and conditions of his contract he is ‘lord of the manor,’ and upon final payment of the purchase price may enforce delivery of a sufficient deed of conveyance. Elliott v. McCombs, supra, 17 Cal.2d at page 31, 109 P.2d 329; Miller v. Waddingham, 91 Cal. 377, 380, 27 P. 750, 13 L.R.A. 680. So securely is he entrenched as owner that he cannot without the consent of his creditors give away his equitable title even though he may be in default in his payments. Retsloff v. Smith, 79 Cal.App. 443, 450, 249 P. 886. The vendor under such a contract has no greater rights than when he takes a grant deed of land as security for money due. Miller v. Waddingham, supra, 91 Cal. at page 381, 27 P. 750, 13 L.R.A. 680; First National Bank of Tulare v. Andreas, 92 Cal.App. 62, 63, 267 P. 937.

If the vendee under a conditional sales contract is the owner of land, why should the assessor levy assessments against it for taxes to one who will not pay? No sovereign rights can be impinged by assessing it to the party who owns it. No advantage is gained by the state in assessing it to him who has divested himself of ownership solely because he holds the record title. Whatever amount the tax he is not affected. But a detriment is suffered by a veteran whose entire capital may be invested in land so assessed. Appellants' right to an exemption from taxation of lot 76 to the extent of $1,000 is a vested right by virtue of the cited constitutional provision. They have already paid upon the purchase price a sum in excess of more than three times the amount to be exempted. The sum payable as taxes upon $1000 is property. By the arbitrary procedure followed by respondent appellants are deprived of such property. May this be done because the assessor prefers to maintain his ‘policy’ rather than to confer upon the veteran what is his right under constitutional enactment? Such act is in effect a violation of the supreme law of the land which provides that no person may be deprived of his ‘life, liberty or property, without due process of law.’ Amendment XIV, sec. 1, Federal Constitution. The continuance by an executive office of an arbitrary policy inherited from former generations is not due process of law however sacrosanct the policy may seem to be.

While respondent maintains such traditional procedure with respect to contracts for the sale of real property a far different practice prevails in the assessments of movables. If John Doe should purchase a motor vehicle at the price of $5000 and pay ten per cent of that sum as the initial payment on a conditional sales contract, even though the vendor is registered as the legal owner the property tax is assessed to the buyer. This is the ‘established practice throughout the state, and is both sound and practical.’ County of San Diego v. Davis, 1 Cal.2d 145, 146, 33 P.2d 827. Such scheme of levying taxes is to be commended, for when a statute requires that property be assessed to the owner it means the general and beneficial owner whose interest is primarily one of possession and enjoyment in contemplation of ultimate absolute ownership. It does not mean a party whose primary interest is to enforce payment of money. Ex parte State, 206 Ala. 575, 90 So. 896. In this state a conditional sales contract was long ago held to be a ‘solvent credit.’ While by constitutional amendment all obligations secured by real property shall not be taxed, still the provisions with regard to taxing property are not otherwise altered. Whiting Finance Company v. Hopkins, 199 Cal. 428, 433, 249 P. 853. Since appellants' ownership of lot 76 is a property right it is subject to taxation and of course should be assessed to them.

Incidentally, the Alabama case involved personal property, but the holding with reference to the assessment to the vendee is followed by the declaration that ‘it is well settled that when the vendee of real property is in possession under an executory contract of sale, he is liable to be taxed as the owner. * * * It is, of course, to be conceded that the equitable ownership of an executory purchaser of realty is of a higher nature than is a like interest in personalty, and is more favored by the law; but for the purpose of taxation it is difficult to find any valid distinction.’ The same issue came before the Supreme Court of Wisconsin in an action to have assessments for taxes on ‘certain real estate’ adjudged void. At the time of the assessment the land was occupied by Lodge 359, Loyal Order of Moose, under a contract of purchase. It was held that inasmuch as the lodge was vendee in possession under a contract which obligated it to pay the purchase money, it was owner within the meaning of the exemption statute; that since the contract clearly contemplated that the vendee should eventually acquire the legal title, it gave the lodge the right by continuing its payments ultimately to demand a valid conveyance of the title from the vendor; that therefore the lodge was the owner under the statute exempting a specified area of the real property of a fraternal society from taxation. ‘The retention of the title by the vendor,’ said the court, ‘is merely a security device. The vendee assumes all of the burdens of ownership, including the duty, as between it and the vendor, of paying taxes. While statutes exempting property from taxation are to be strictly construed, ‘strict construction does not mean that we are not to search for and ascertain, if possible, the true meaning of the language used in the statute.’' Ritchie v. City of Green Bay, 215 Wis. 433, 254 N.W. 113, 95 A.L.R. 1081.

Respondent contends in effect that the policy of the assessor is a reasonable regulation and that it should not be altered merely for the purpose of securing to veterans a property right vested in them by law. It should be a sufficient answer to such proposition to say that no customary procedure is reasonable if its effect is to deprive many persons of vested rights. However, respondent asserts that appellants as vendees under a conditional sales contract are not the owners because Witmer as holder of the legal title will continue to be owner of the lot during the 15 years required for appellants to pay $5,721.35, the ‘disproportionately greater balance’ of the purchase price. But appellants are obligated to pay such balance. The holding of a lien for the major portion of the purchase price or of the value of a parcel of realty under a conditional sales contract makes of one no more the owner than would the possession of a mortgage or a trust deed or a vendor's lien note executed by the holder of the legal title. If it does then fiction has become reality and form means more than substance.

Respondent argues at length in support of the general rule that there is to be but one assessment of the entire estate in land. From analogy that land leased for years for usufructuary purposes is taxable only to the owner (Graciosa Oil Company v. Santa Barbara, 155 Cal. 140, 99 P. 483, 20 L.R.A., N.S., 211; San Pedro etc. Railroad Company v. City of Los Angeles, 180 Cal. 18, 179 P. 393; Hammond Lumber Company v. County of Los Angeles, 104 Cal.App. 235, 285 P. 896), he argues that a city lot cannot be assessed to both the seller and the buyer under a contract for purchase according to their respective interests. Such is not the demand of appellants. They ask that the assessments be made to them as owners instead of to Witner. As proof of the necessity for or propriety of the exemption, as a matter of justice and public policy they allege that thousands of veterans who are purchasing homes in Los Angeles county under conditional sales contracts will be deprived of their constitutional exemptions from taxation if respondent is permitted to continue his policy of assessing real property to the holder of the legal title only, despite the investments of such veterans. The demand of appellants alone is sufficient to evoke favorable judicial action, but when thousands are similarly situated—thousands who have served ‘in the army, navy, marine corps, coast guard, or revenue marine service of the United States in time of war * * *’ (Const.)—a denial of the petition herein would be to scorn the command of the electorate.

Respondent cites many authorities to establish his contention that the phrases used in section 1 1/414 supra—to wit: ‘property in his own name’; ‘the property of the wife’; the ‘property * * * of the widow’; ‘owning property; ‘owns property’; ‘property owned by’—contemplate property to which one holds legal title. He cites City and County of San Francisco v. McGovern, 28 Cal.App. 491, 152 P. 980, to the effect that courts must assume that the people gave to the words their natural and ordinary meaning. Undoubtedly that is a correct assumption. But neither in the McGovern case nor in the decision of State Land Settlement Board v. Henderson, 197 Cal. 470, 241 P. 560, is there any suspicion cast upon the ownership of a purchaser under an executory contract for a grant deed.

He cites numerous cases from other jurisdictions as further support for his contention. In People v. City of Toulon, 300 Ill. 408, 133 N.E. 707, land was purchased by a group of civic-minded citizens and the title was taken in the names of two trustees to be deeded to the city for park purposes. Since on ‘tax day’ the title had not been conveyed by the trustees to the city, the land was held to be not exempt. That case furnishes no parallel. A change in plans might have rendered conveyance to the city impossible. In People v. St. Mary's Roman Catholic Hospital, 306 Ill. 174, 137 N.E. 865, it was held that a hospital owned by a religious corporation cannot be exempted as the property of a charitable organization on the ground that it is equitably owned by a hospital organization. The facts are that the hospital was situate on land of the church not used for religious purposes; that charges were made for its use by the public; that it was not chartered as a charitable institution and had severed its relation with the church. It was therefore subject to tax. In People v. Logan Square Presbyterian Church, 249 Ill. 9, 94 N.E. 155, the church had purchased certain land on contract, presumably to be used for religious purposes. The date of the contract is not disclosed. The petition of the church for exemption from taxes alleged that for a year it had been in possession of the premises which were used for ‘church purposes.’ The petition was heard July 23 but its status had to ‘be determined in reference to the statute in force on April 1, 1909, as that is the date upon which are lien for taxes attached to real estate.’ The court held that the petition should have been denied because (1) it did not disclose whether the property was actually and exclusively used for public worship; (2) the petitioner was not the owner by virtue of its contract for a deed; and (3) the title was not vested in the church on April 1 when the lien for taxes attached for the ensuing year.

In People v. Bennett Medical College, 248 Ill. 608, 94 N.E. 110, 111, 140 Am.St.Rep. 237, the college held real estate under a lease for 99 years and used it in connection with its operation. On appeal from the order of the board of review the only question for consideration was whether the property held under a lease belonged to or was owned by the college within the meaning of the charter which exempted the lands of the corporation from taxation. It was held that the power to tax real property can only be surrendered by plain and explicit terms of a statute; that when words exempting property from taxation are susceptible of two constructions courts will resolve any doubt as to the meaning of the language in favor of the statute. The court determined that leased property did not belong to the corporation as contemplated by the language of the college charter which exempted ‘all property, real, personal and mixed, belonging to said corporation’; that ‘right of action, under the statute, to enforce a personal liability, only exists against the owner.’ Since the holding of that case is merely that a lessee of lands is not an owner in contemplation of the language of the corporate charter, it is not pertinent to the question before this court.

Similar holdings are found in the decisions of Wisconsin. In the case of Douglas County Agricultural Society v. Douglas County, 104 Wis. 429, 80 N.W. 740, the court held that land under lease to an incorporated agricultural society, used exclusively for fair grounds, is not owned by, nor is it the property of, such society so as to entitle it to be exempted from taxation under the statutes exempting from taxation lands owned and used by such society exclusively for fair grounds. In Katzer v. City of Milwaukee, 104 Wis. 16, 79 N.W. 745, a Bishop of the Roman Catholic Church held title absolute in fee in accordance with the law of that church, and by reason thereof the church sought to be exempted from taxation upon such land. The land was not owned in the sense of the exemption statute which exempted property ‘owned by any religious association.’ Neither is this case a precedent for the issue at bar for the reason that there was no certainty that the bishop might not transfer the property to another or that it might not be used for other than religious purposes.

The state of Ohio has a statute exempting ‘all buildings belonging to institutions of purely public charity, together with the land actually occupied by such institutions.’ Rev.St.Ohio 1860, c. 114, § 3, subd. 6. A charitable corporation leased a parcel of real estate with all of its improvements and covenanted to pay all taxes that might be assessed during the term. The corporation occupied the premises and in pursuance of its corporate design proceeded to shelter and provide for the persons mentioned in its charter. The lease provided for the payment of $3,000 per annum and the payment of all assessments and taxes levied during the term. It was proved that the members of the corporation had devoted themselves to carrying out the objects of the corporation by supporting 60 aged, dependent people. The court held that the property did not come within the exemption statute; that the word ‘belonging’ means ownership and not leasehold. Humphries v. Little Sisters of the Poor, 29 Ohio St. 201, 206.

Despite the earlier cases of Wisconsin, Ohio and Illinois, as already observed, the Supreme Court of Wisconsin in the recent case of Ritchie v. City of Green Bay, supra, has held that the vendee in possession under a conditional sales contract is the owner in contemplation of the exemption statute. That decision was recently followed by the Supreme Court of Minnesota in Village of Hibbing v. Commissioner, 217 Minn. 528, 14 N.W.2d 923, 926; 156 A.L.R. 1294, which also held that the purchaser under a conditional sales contract is owner for purposes of taxation. The Benedictine Sisters Association held a contract dated January, 1941, whereby a hospital should be conveyed to them upon their payment of certain money and their agreement to maintain a public general hospital. Neither was title transferred to them nor did they occupy the property until February, 1942. An abatement of the 1941 taxes was upheld under a constitutional provision exempting public hospitals from taxation, because ‘on May 1, 1941, the association was the owner of the property within the meaning of the tax exemption provisions of the constitution and the statute. * * * In equity the purchaser is regarded, for purposes of taxation as well as for others, as the owner, subject to liability for the unpaid price, and the vendor as holding the legal title in trust for him.’ Under such holding a vendee under an executory contract for the purchase of land without title or possession may have the tax exemption despite the rule of strict construction of tax exemption laws. The court said: ‘The status of the title as between the vendor and vendee should be no obstacle to the exemption.’

From the foregoing considerations the conclusion is unavoidable that the constitutional provision was intended to exempt, to the extent therein specified, all veterans residing in California from taxes on property they own; that ownership is not by section 1 1/414 classified as legal and equitable, but applies as well to him who occupies land under contract to receive a deed upon the payment of a small sum as well as to one who has already received a deed but still owes the greater portion of the purchase price.

Respondent contends that mandamus does not lie to compel the assessor to cancel an assessment made to the wrong party and to assess it to the true owner. This is a superficial view of the power of a court of equity. While the petition sought a judgment cancelling the assessment for 1946 and a new assessment to appellants for that year, there is no such restriction upon the superior court as to deprive it of the power to enter such judgment as may correctly guide the assessor in future assessments against the property.

In the absence of proof that the assessor altered his policy after his refusal to cancel the assessment and to reassess the property to appellant, it is presumed that such administrative policy has continued to exist. Code Civ.Proc. § 1963, subd. 32. From appellants' prosecution of this appeal it is a reasonable inference that they have not withdrawn their demand for the relief specified in the original petition as it relates to future years. Under the broad powers of equity the court may at the conclusion of a trial grant such relief as ‘may be deemed meet and proper’ under the established facts, in conformance with the sentiments herein expressed. Such relief might include (1) a writ of mandamus requiring the assessor to cancel such assessments as may have been made to others than appellants, or (2) a writ of injunction inhibiting respondent from assessing the property to any person other than appellants so long as they demand such assessments as the equitable owners. Since the matter is of general interest, affecting the rights of many other veterans of California, there is no good reason why the superior court should not if the facts so warrant make an order in conformance with the petition, to the end that during subsequent years the veteran may enjoy the benefit of the constitutional exemption. Justice will thereby be more readily subserved and all the rights of respondent can be as well protected in this action as in another containing the same declarations but bearing a different number.

In Lockhart v. Wolden, 17 Cal.2d 628, 111 P.2d 319, in an original proceeding a woman veteran, owner of property worth $400 on May 31, 1940, requested the assessor to exempt all of it pursuant to Section 1 1/414. On October 15, 1940, that official refused her demand. In the original proceeding that ensued in the Supreme Court it was held that mandamus was a proper remedy for three reasons: (1) Because it was the only remedy that would afford the petitioner the relief to which she was entitled, namely cancellation of the assessment; (2) that a suit to recover the taxes paid under protest would not be adequate because petitioner in such a suit could not recover interest on the money paid; (3) because issuing a writ of mandate would prevent a multiplicity of suits. While the second reason for allowing the writ to issue has been eliminated by an amendment to the statute (Statutes 1941, p. 2113, Rev. & Tax.Code, sec. 5141) permitting the recovery of interest on taxes paid under protest, neither of the other reasons for issuing the writ has been disapproved by statute or decision. Judgment was entered on March 18, 1941. Such procedure was in keeping with the universal practice in equity and particularly in cases involving the public interest.

Inasmuch as an identical situation obtains in the cause at bar no good reason appears why the Lockhart opinion should not prevail herein. The fact that the assessor cannot perform one specific act designated in the petition affords no impassable barrier. Of course respondent cannot change his rolls for the year 1946, but the petition seeks a ruling for his later guidance as well. He will make assessments in the future for the benefit of other veterans similarly situated as well as for these appellants. It is a presumption that he will perform his official duty as prescribed by law. Code Civil Proc.1963, subd. 15. A like situation obtained in the Lockhart case in which the decision was unanimous that the remedy was proper and that the issuance of the writ would in fact accomplish the purpose sought by the petitioner and prevent further litigation. The only legal remedy suggested as an alternative to the instant action is that appellants pay the taxes under protest and then sue to recover. Such a proceeding does not afford adequate relief to litigants of limited means. The hardships of these appellants would be multiplied if forced to such action by reason of their contract to pay moneys to Witmer wherewith the seller shall pay all taxes.

The judgment is reversed with instructions to overrule the demurrer and thereafter to proceed as herein indicated.

I concur unqualifiedly in that part of the opinion of Mr. Presiding Justice MOORE holding that respondent has been in error in his theory that property sold under conditional sales contracts should be assessed to the vendor and not to the vendee, and holding that appellants are entitled to the exemption provided for in the Constitution.

I dissent from the conclusion that a writ of mandate should issue to the county assessor directing him to cancel the assessment of the property to appellants' vendor and to assess it to appellants. My abstention from concurring in the latter portion of the opinion is based on the grounds (1) that the writ would be without efficacy because respondent would be unable to comply; (2) that appellants have an adequate remedy at law; (3) the issuance of a writ in this proceeding would not necessarily prevent a multiplicity of actions; (4) appellants are entitled to the exemption even though the property is assessed to their vendor.

(1) The assessor is required to complete the assessment roll on or before the first Monday in July (Rev. & Tax. Code, sec. 616) and to deliver it as soon as completed to the clerk of the board of supervisors as ex officio clerk of the board of equalization. Sec. 617. On the third day after adjournment of the board the clerk must transfer the roll to the county auditor (sec. 1614) whose duty it is to deliver it to the tax collector on or before October 1. Sec. 2601. These steps are presumed to have been regularly taken in the tax proceedings in 1946. When the assessment roll passed out of the assessor's possession and control upon its delivery to the clerk of the board of supervisors it was thereafter beyond his power to make alterations in it. When the time has passed within which authority exists to make a change in the tax levy mandamus does not lie to compel officials to alter the tax rolls. McDonald v. Richards, 79 Cal.App. 1, 19, 248 P. 1049. A writ of mandate will not issue to compel the performance of an official act if when the writ is applied for the time limited for the performance of the act sought to be ordered by the writ has expired. A court of equity will refuse to issue such writ when it is useless, unenforceable or unavailing. Board of Education of City of San Diego v. Common Council, 128 Cal. 369, 372, 60 P. 976; Zagoren v. Hall, 122 Cal.App. 460, 462, 10 P.2d 202. A writ will not issue to compel a public officer to permit the inspection of public documents that had already been delivered to another public official, thus rendering it beyond the power of the defendant to comply with the order. McClatchy v. Matthews, 135 Cal. 274, 276, 67 P. 134. A writ to compel the levy of a tax was refused where the time provided by law for the making of the levy had passed. Board of Education v. Common Council, supra; Board of Education of City of San Diego v. Common Council, 1 Cal.App. 311, 312, 82 P. 89.

The inability of the assessor, after the assessment roll had passed out of his possession and his jurisdiction of its contents had ceased by operation of law, to cancel an assessment and to assess the property to another person was not considered in the opinion in Lockhart v. Wolden, 17 Cal.2d 628, 111 P.2d 319, upon which the majority opinion relies. An examination of the briefs in that case discloses that the question was not presented to the court. In the case of Babcock v. Goodrich, 47 Cal. 488, cited as authority in the Lockhart case, the relief sought was the drawing of a warrant on the treasurer for the amount that had been allowed by the board of supervisors. Manifestly, as the court stated, mandamus was the only remedy that would afford the petitioner the relief to which he was entitled, to wit, the drawing of the warrant in his favor.

(2) The amendments to the statute that have been adopted since the decision was rendered in Lockhart v. Wolden, supra, have removed the principal consideration impelling the conclusion reached in that case, to wit, that the petitioner did not have an adequate remedy at law for the reason that if he had paid the tax and sued to recover he would have been unable to obtain a judgment for interest on the amount paid. This was a cogent reason when the decision was rendered but it is no longer so. Neither the state nor any of its political subdivisions is liable for interest on money wrongfully collected or withheld unless the statute expressly so provides. Engebretson v. City of San Diego, 185 Cal. 475, 479, 197 P. 651; Birch v. Board of Supervisors, 191 Cal. 235, 237, 215 P. 903; Powell v. City of Los Angeles, 95 Cal.App. 151, 155, 272 P. 336. See also Hopkins v. Southern California, Tel. Co., 275 U.S. 393, 399, 48 S.Ct. 180, 72 L.Ed. 329, 336.

Since the Lockhart decision was rendered the tax law has been amended so that a person who pays a tax under protest may, if he obtains judgment for the amount of the tax paid, recover interest thereon as well. Rev. and Tax. Code, sec. 5105, added by Stats.1941, ch. 664, p. 2114; sec. 5141 added by Stats.1941, ch. 663, p. 2112. The Lockhart case was decided in March, 1941, and since said sections of the Revenue and Taxation Code were added by the legislature during its 1941 session it may be assumed that they were enacted for the purpose of curing the defect theretofore existing in the tax laws to which attention was directed in the Lockhart opinion.

Appellants in the instant case, notwithstanding the assessment of the property to their vendor, are entitled to the veterans' exemption allowed by section 1 1/414 of Article XIII of the Constitution. They could have paid or may now pay the tax under protest and upon recovery will be entitled to interest on the illegally levied tax on their property to the amount of their constitutional exemption. Since an action to recover the tax is an adequate legal remedy mandamus is not available. A writ of mandate will issue where there is not a plain, speedy and adequate remedy in the ordinary course of law. Code Civ.Proc., sec. 1086. Mandamus is an extraordinary proceeding and may not be resorted to as a substitute for an adequate legal remedy. Northrup v. Haynes, 15 Cal.App.2d 665, 666, 59 P.2d 1056; Burbank v. Hamilton, 63 Cal.App. 745, 746, 219 P. 1047; Black v. City of Santa Monica, 13 Cal.App.2d 4, 6, 56 P.2d 256; Coon v. Biscailuz, 1 Cal.App.2d 346, 348, 36 P.2d 430. It will issue where a legal duty is established and no other sufficient means exist for its enforcement. Potomac Oil Co. v. Dye, 10 Cal.App. 534, 537, 102 P. 677. But it will not issue when the legal remedy that would have afforded adequate relief has been lost by neglect or delay. Ertman v. Municipal Court, 68 Cal.App.2d 143, 148, 155 P.2d 908, 156 P.2d 940; Andrews v. Police Court, 21 Cal.2d 479, 480, 133 P.2d 398, 145 A.L.R. 1042. An action at law to recover money owing from a political subdivision of the state ‘is equally convenient, beneficial and effective as a proceeding by mandamus, which therefore is not available’ to appellants. Northrup v. Haynes, supra.

The allegations of appellant's petition are directed to the assessment roll for 1946 and not that of any subsequent year, and the prayer of the petition is for a writ based on those allegations. The alternative writ directs respondent to cancel the assessment to the vendor and to assess the property to appellants, or to show cause why he has not done so. The writ necessarily refers to an assessment previously made and not to one that is to be made in the future. A writ will not issue except upon an express demand for the performance of an act and a refusal to perform. Price v. Riverside Land & Irrigating Co. 56 Cal. 431, 434; Ferguson v. Board of Education, 7 Cal.App. 568, 570, 95 P. 165; Brown v. Superior Court, 70 Cal.App. 732, 737, 234 P. 409. Mandamus is never granted to compel the performance of an act until there has been an actual as distinguished from an anticipated refusal. Friedland v. Superior Court, 67 Cal.App.2d 619, 628, 155 P.2d 90; George v. Beaty, 85 Cal.App. 525, 531, 260 P. 386. It is a general rule that a peremptory writ follows the terms of the alternative writ. Gay v. Torrance, 145 Cal. 144, 153, 78 P. 540; Barry v. Board of Directors, 7 Cal.App.2d 412, 429, 46 P.2d 298. A writ of mandate in this proceeding could not command the manner in which an assessment should be made in a subsequent year. It must be assumed that the assessor will hereafter follow the law as construed in this proceeding. Moreover no demand or refusal has been alleged with reference to any year except 1946 and we shall not anticipate a refusal in future years if demand should be made. See Friedland v. Superior Court, supra.

(3) No doubt there are hundreds of persons whose property has been assessed in the manner complained of by appellants, but this does not purport to be a class action prosecuted on behalf of all other persons similarly situated. Appellants do not seek a writ requiring respondent to reassess all property belonging to other veterans and assessed in the same manner as that involved in this action. If a writ should issue it will be applicable only to this one assessment. It obviously will not command the assessor to cancel all like assessments and to reassess the various properties in the names of the veteran vendees. The rules laid down in the opinion of the Presiding Justice relative to the manner in which property should be assessed, in which I concur, will guide the assessor and there is no reason to assume that he will fail to adhere to those rules in the future.

Insofar as the assessment for 1946 is concerned any and all other veterans who are situated similarly to appellants must, if they desire to obtain relief equivalent to that sought in this proceeding, file and prosecute actions on their own behalf. The issuance of a writ in favor of appellants will therefore not prevent a multiplicity of actions.

(4) In the instant case the ultimate relief which appellants seek, and to which they are entitled, is the exemption from taxation afforded by section 1 1/414 of Article XIII of the Constitution and not the mere placing of their names on the assessment roll. The latter is only a means sought by appellants by which they may obtain the former. In the language of that section it is the ‘property of’ the veteran that is exempt, not property assessed to him. If it is his property his exemption from taxation is assured. If it does not belong to him it is not exempt even though it is assessed to him on the assessment roll. If appellants are entitled to exemption they may attain their aim by means other than by resort to mandamus, as hereinbefore pointed out. Neither the hardship imposed on appellants nor the costs of suit would be greater in an action to recover the tax after payment than in a mandamus proceeding.

For the reasons stated I am of the opinion that appellants are not entitled to a writ of mandate. They are nevertheless entitled to their constitutional exemption.

MOORE, Presiding Justice.

McCOMB, J., concurs.

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