ARTHUR W. SHERMAN et al., Appellants, v. JOHN R. QUINN, as County Tax Assessor, etc., et al., Respondents.
L. A. No. 20218
In Bank
Apr. 3, 1948.
31 Cal. 2d 661
Harold W. Kennedy, County Counsel, and Gordon Boller, Deputy County Counsel, for Respondents.
EDMONDS, J.-Arthur W. Sherman and his wife are seeking a writ of mandamus to compel the assessor of Los Angeles County to assess to them real property being purchased by them under a contract of conditional sale in order that he may claim his tax exemption as a veteran. The appeal from the judgment, entered upon an order sustaining the assessor‘s demurrer to the petition without leave to amend, presents for decision a question different from that determined in Eisley v. Mohan, ante, p. 637 [192 P.2d 5], as here the vendor is a private party and not a state agency.
The amended petition alleges that Sherman is a veteran of World War II and was honorably discharged from the service. He and his wife, both residents of California, have purchased from Witmer Building Company, a corporation, under a contract of conditional sale, a lot, improved with a residence, for a total purchase price of $8,850. Approximately $3,000 was paid in cash and the contract provides for monthly payments of $40 on account of principal and interest.
The petitioners further plead that thе property is assessed to the vendor who holds the legal title. Sherman demanded of the assessor that the assessment to the vendor be canceled and the property assessed to him and his wife in order that he might claim his veteran‘s exemption from taxation under
The assessor demurred to the petition upon the ground that it does not state facts sufficient to constitute a cause of action. One of the points relied upon in support of his position was that mandamus is not the proper remedy.
The principal question for decision is whether the quoted provision of the Constitution exempts only property of a veteran to which he holds the legal title. Certainly it must be construed to give full effect to the purposе of the enactment, which is to minimize the burden of taxation upon those persons who honorably served our country, and do not own property of a value greater than that specified. There is nothing in the language of the provision which indicates an intention to restrict its application to those who hold thе full legal title to their property. On the contrary,
The vendee in possession under a conditional sale contract, or one who holds the land subject to a deed of trust, is as much entitled to thе exemption as a veteran who has title in fee simple. “In a conditional sale, the title in the seller is for security only, to assure the payment of the purchase price. It carries with it none of the ordinary incidents of ownership. The buyer has the possession and use of the property to the complete exclusion of the seller, subject only to the seller‘s remedies in case of default. Both in a practical and a legal sense the buyer is the beneficial owner.” (County of San Diego v. Davis, 1 Cal.2d 145, 147 [33 P.2d 827]; Elliott v. McCombs, 17 Cal.2d 23 [109 P.2d 329]; and see Walker v. Houston, 215 Cal. 742 [12 P.2d 952, 87 A.L.R. 937].)
Petitioner Arthur Sherman is therefore entitled to the exemption allowed by
The assessor, annually, “shall assess all the taxable property in his county ... to the persons owning, claiming, possessing, or controlling it. . . .” (
On the basis of the allegations of their petition, it is clear that the Shermans are entitled to the benefit of the exemption provided by the Constitution. Clarification of this point should suffice to assure petitioners and other veterans in similar circumstances that the exemption will be allowed.
The judgment is affirmed.
Gibson, C. J., Shenk, J., Traynor, J., and Spence, J., concurred.
SCHAUER, J.---I dissent. I agree that petitioner Arthur Sherman is entitled to a veteran‘s exemption to be applied against the property here involved, but it is my view that he is also entitled to mandamus to compel the assessment of the property to him in order that the exemption may be claimed. Such action will but compel the defendant to perform that which as a matter of law appears to be his official duty and it will give to petitioner the benefit of a specific constitutional right.
Petitioner‘s right to a veteran‘s exemption derives directly from
The significance of the above quoted sections, as to the procedural and equitable aspects of this сase, lies in the fact that they contemplate and provide a substantially complete remedial scheme in situations which encompass that which the petitioners (the veteran‘s wife joins in the petition here) here claim and such as appeared in Lockhart v. Wolden (1941), 17 Cal.2d 628 [111 P.2d 319]. Perhaps the most important part of the remedial scheme, to persons in the position of petitioners here, is that the only act they need to directly compel appears to be the making of the lawful assessment; then, no matter how many other unlawful assessments may have been made on the same property, nor how far the collection рrocess may have proceeded, the duties of the public officers concerned are specifically prescribed. Surely mandamus should be available in such situations to compel the performance of official duty in the making of the lawful assessment.
In accord with and relying upon the views expressed in the Dufton case is the more recent decision in Lockhart v. Wolden (1941), supra, 17 Cal.2d 628. In the latter case petitioner sought by mandamus to compel respondent, as assessor of the city and county of San Francisco, to grant petitioner as a veteran exemption of certain property from taxation and thereupon to cancel the assessment which had been made. Although petitioner had not pursued the statutory remedy of payment of the tax assessed against her property followed by suit to recover the payment, this court granted the relief sought and stated (p. 633 of 17 Cal.2d): “No remedy other than mandamus would afford petitiоner the remedy to which she is entitled, namely, cancellation of the assessment. (Babcock v. Goodrich, 47 Cal. 488, 508.) The well-settled rule that a plaintiff who recovers wrongfully collected taxes cannot recover interest prior to judgment (Engebretson v. City of San Diego, 185 Cal. 475, 479, 480 [197 P. 651]) is a further reason why any remedy at law by payment of the tax and suit to recover would not be adequate, and it was so held in the case of Birch v. Board of Supervisors, 191 Cal. 235, 237 [215 P. 903], in a proceeding to review the action of the board of supervisors in raising the assessment upon property belonging to plaintiffs. Though we recognize that the interest item upon this particular assessment is small, it becomes very substantial
Petitioners here seek to compel public officers to perform official duty and I am of the opinion that no other remedy than mandamus is avаilable and adequate for that purpose. It seems reasonably certain that issuance of the writ will avoid a multiplicity of suits. If the writ is granted here it should accomplish for petitioners everything which otherwise might well necessitate a multiplicity of actions and proceedings before all their rights were secured аnd their property freed from erroneous charges, liens and clouds. Furthermore, it is a matter of common knowledge that many veterans are purchasing homes upon conditional sales contracts. Must each veteran in petitioner‘s position pay the tax in full and then sue to recover in order to seсure the advantage of his exemption? And if he does not have the money to pay the illegal tax and thereby establish the basis for recovery must he lose his property by tax sale because the court is impotent to afford him the only relief which would be truly adequate?
I would issue the writ, directing the respondent assessor to assess the property to petitioner, thereby performing his official duty.
Carter, J., concurred.