Eisley v. Mohan , 31 Cal. 2d 637 ( 1948 )

EDMONDS, J.

Charles H. Eisley and the Department of Veterans Affairs of this state joined as petitioners in an original proceeding, commenced in this court, to obtain a writ of mandate directed to the assessor of Placer County. The purpose of the litigation is to compel the respondent to assess to Eisley his possessory interest in real property purchased by him from the Veterans Welfare Board, the predecessor of the Department of Veterans Affairs.

The petition alleges the following facts: In 1930, Eisley purchased the property, consisting of a house and lot which he has since occupied, from the Veterans Welfare Board under a contract authorized by the Farm and Home Purchase Act enacted in 1921. (Stats. 1921, eh. 519, p. 815; now incorporated in Mil. & Vet. Code, § 800 et seq.) This contract provides for the payment of the purchase price in monthly installments over a period of 20 years. From 1921 to 1946, inclusive, it was the practice of the taxing authorities of the state to tax veterans upon the value of their right of possession. In March, 1947, the respondent, for the first time, assessed the property to Eisley at a cash value of $2,100, and declared that he intended to place it upon the secured tax roll. This change of policy was pursuant to an opinion by the attorney general.

Following this action and declaration of policy, the petition continues, Eisley demanded that the possessory interest in the property be assessed upon the unsecured roll in the amount of $1,785, being 85 per cent of its full cash value. He is entitled to a veteran's exemption of $1,000, and he tendered to the respondent $23.63, being the amount of the taxes due upon an assessment of $785 at the tax rate fixed for the year 1946-47. The respondent refused these demands and the tender and entered the property, assessed to Eisley, upon the secured tax roll.

Other allegations of the petition are that there is no plain, speedy, or adequáte remedy in the ordinary course of law whereby the rights of the petitioners can be upheld, because if the assessment is not removed it will “ . . . become delinquent, penalties will attach and a cloud will be created upon the title. ...” Furthermore, the refusal of the respondent and the other county assessors to assess to veterans only their possessory interest in property purchased from the Department of Veterans Affairs is interfering with the sale of property by that agency of the state.

Petitioners contend that mandamus is the appropriate remedy “to galvanize recalcitrant county officials who refuse to compute tax assessments pursuant to law”; and as to the merits, that the property “belongs to” the state, within the meaning of article XIII, section 1, of the Constitution of California which exempts public property from taxation. Reliance is also placed upon the decision in State Land Settlement Board v. Henderson, 197 Cal. 470 [241 P. 560], as a rule of property which, it is said, has been followed for 25 years and should be continued as authority under the doctrine of stare decisis. It is vigorously asserted that the Constitution forbids the assessment here challenged and exempts from taxation property to which the government holds title not only as security but also to insure the execution and success of a public project or policy, such as land grants. The Veterans’ Home Purchase Program in California, the argument concludes, is similar in structure and purpose to the governmental purpose of land grants, and the state agency holds the legal title to property sold hy the Department of Veterans Affairs, not merely for security, but to enforce and guide the vast public project.

By way of return to the alternative writ issued upon this petition, the respondent demurred, asserting that the facts alleged do not state a cause of action. Considering thé merits of the question of law as to the proper assessment basis for real property being purchased under a contract of conditional sale, the attorney general insists that as the veteran is the equitable owner of the property, it is assessable to him at its full value.

At the time of oral argument, the procedural question was raised as to the petitioners ’ right to the remedy of mandamus for the purpose of preventing the taxation of property and the parties have presented supplemental briefs upon that point. The petitioners claim that mandamus is an appropriate remedy because article XIII, section 15, is not a bar to mandatory relief since the legal remedies are inadequate, and there is a certainty of multiplicity of suits; the writ sought does not involve “collection” of taxes, but is only directed at the illegal assessment of taxes; and the provision does not apply to counties or to county officers. The attorney general, on behalf of the assessor, also justifies the procedure upon the ground that the prohibition in the Constitution is as to suits against the state or its officers, while in the present case the remedy of mandamus is sought against a county officer.

Section 15, article XIII, of the California Constitution provides: “No injunction or writ of mandate or other legal or equitable process shall ever issue in any suit, action or proceeding in any court against this State, or any officer thereof, to prevent or enjoin the collection of any tax levied under the provisions of this article; but after payment thereof action may be maintained to recover, with interest, in such manner as may be provided by law, any tax claimed to have been illegally collected.”

This provision, based on section 14 [g], article XIII, adopted in 1910, has not before been construed hy an appellate court of California. The petitioners rely upon decisions in other jurisdictions interpreting statutory provisions substantially identical with that of our Constitution. Generally speaking, these eases hold that such a statute may not be construed as depriving the courts of the powers conferred upon them by the state Constitution. Such statutes, it is said, are declaratory of the rule that the collection of a tax will not be restrained upon the ground of illegality alone; extraordinary and exceptional circumstances must be shown before relief by prerogative writ will be granted. (Note 108 A.L.R. 184.) It also has been held that a federal statute (53 Stats. 446, 26 U.S.C.A. § 3653[a]), which provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court,” is merely declaratory of the rule that a court of equity will not restrain the collection of a tax upon the sole ground of its illegality, but relief will be given where the remedy at law is inadequate. (Miller v. Standard Nut Margarine Co., 284 U.S. 498 [52 S.Ct. 260, 76 L.Ed. 422]; Hill v. Wallace, 259 U.S. 44 [42 S.Ct. 453, 66 L.Ed. 822]; Lee v. Bickell, 292 U.S. 415 [54 S.Ct. 727, 78 L.Ed. 1337]; Atlantic Coast Line R. Co. v. Daughton, Commissioner, 262 U.S. 413 [43 S.Ct. 620, 67 L.Ed. 1051]; Wallace v. Hines, 253 U.S. 66 [40 S.Ct. 435, 64 L.Ed. 782]; Union Pacific R.R. Co. v. Board of Com’rs. of Weld County, 247 U.S. 282 [38 S.Ct. 510, 62 L.Ed. 1110]; Stewart Dry Goods Co. v. Lewis, 287 U.S. 9 [53 S.Ct. 68, 77 L.Ed. 135]; Dows v. Chicago, 11 Wall. 108 [20 L.Ed. 65].)

The provision of the California Constitution is much more than a mere declaration of the rules generally applicable in proceedings for injunction, mandamus, or other legal or equitable relief. However, the section applies only to an action against the state or an officer thereof with respect to his duties in assessing or collecting a state, tax for state purposes. A county assessor and a member of a county board of equalization is a county officer. (Const., art XI, §7 1/2; Pol. Code, § 4013[9] and [14].) Under some circumstances, he may perform certain tax functions for a city, and also for the state, but when he either assesses or collects taxes for county purposes, he is the agent of the county. (Los Angeles County v. Superior Court, 17 Cal.2d 707, 714-717 [112 P.2d 10].) The taxes which occasioned the present controversy were assessed for local purposes; the state neither assesses nor collects ad valorem real property taxes. (Art. XI, §§12 and 13; see Tulare County v. May, 118 Cal. 303, 308-309 [50 P. 427]; Banaz v. Smith, 133 Cal. 102, 103 [65 P. 309]; Los Angeles County v. Superior Court, supra at 712; Peppin, Municipal Home Rule in California, 34 Cal.L.Rev. 644, 676-690.)

Prior to 1933, the constitutional provision in question concerned taxes levied under sections 14 and 15 of article XIII. Each of these sections, as then in effect, authorized the levy of certain taxes by state officers for state purposes. (See Arnold v. Hopkins, 203 Cal. 553, 558 [265 P. 223].) In 1933, article XIII was amended with respect to the assessment' by the state of property of public utilities (§ 14), and also in regard to the taxation of the franchises of banks and other corporations (§16.) Also, the new provision, to some extent, shifted the burden of school support from the counties to the state. (§ 15; see Crow v. Board of Supervisors, 135 Cal.App. 451, 461-462 [27 P.2d 655].) The provisions with respect to injunction, previously stated in sections 14 and 15, were modified to include a writ of mandate and were made applicable to taxes levied under article XIII. But in the light of the context and historical background, the substitution of the word “article” for “section” is not a sufficient basis for construing the constitutional prohibition in its amended form as applicable to counties and county officers. Section 15 of article XIII does not, therefore, preclude the issuance of the writ in this case.

Article XIII, section 1, of the California Constitution provides that all property shall be taxed in proportion to its value except that “such as may belong to this State . . . shall be exempt from taxation.” The underlying theory supporting tax exemption of public property is that the object of taxation is revenue and none would result from' taxation by the state of property which it owns. Under such circumstances, the collection of taxes “would be merely taking money out of one pocket and putting it into another.” (People v. Doe, 36 Cal. 220, 222; People v. McCreery, 34 Cal. 432, 433.) The exemption provided in section 1 of article XIII is a declaration of this fundamental principle.

In determining the scope of the constitutional exemption, ownership is the decisive factor and “it has been held or assumed in many instances that property sold under executory contract by a state or a political subdivision thereof was subject to assessment for taxes in the hands of the vendee.” (Anno., Taxation—Property of Exempt Vendor, 166 A.L.B. 595, 613, and see cases collected under heading III, Property of state or political subdivision, [a]. Taxability generally.) Generally speaking, land which has been sold to an individual by the federal government, or by a state, loses its tax exempt status although the government may retain the legal title as security for the payment of a part of the purchase price. (S.R.A., Inc. v. Minnesota, 327 U.S. 558, 569 [66 S.Ct. 749, 90 L.Ed. 851]; Irwin v. Wright, 258 U.S. 219, 229 [42 S.Ct. 293, 66 L.Ed. 573].) The form of the transfer is immaterial; the determinative question is whether private rights have supplanted those of the government insofar as the use of the property is concerned. ‘‘Where beneficial interest has passed to a vendee, the retention of legal title does not give a significant difference from the situation of a deed with a lien retained or a mortgage back to secure the purchase money.” (S.R.A., Inc. v. Minnesota, supra, p. 569.)

The exemption of state owned property is given by section 1 of article XIII which declares that “ [a] 11 property . . . except as otherwise in this Constitution provided, . . . shall be taxed in proportion to its value,” but further provides that ‘‘a mortgage, deed of trust, contract, or other obligation by which a debt is secured when land is pledged as security for the payment thereof, together with the money represented by such debt, shall not be considered property subject to taxation.” For tax purposes, then, the security title is not considered to be property, and it necessarily follows that the ‘‘vendee . . . [in] possession of the land under an executory contract, 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].)

The plan whereby veterans may purchase homes from the state rests upon constitutional provisions approved at the general election in 1922. The argument presented to the voters in support of the proposed amendment, and the issuance of bonds to carry out its purposes, includes the following statement: "The title to the property will remain in the state as security until the purchase price has been paid in full.” By later legislation the taxability of property sold to veterans in conformity with the authority granted by the people was clearly recognized. In 1923, the Legislature amended the Veterans Farm and Home Purchase Act and authorized the board to pay taxes and assessments which the purchaser fails or neglects to satisfy. Any amount paid by the board may be added to the selling price of the property. (Stats. 1923, ch. 405, §7, pp. 915-916; now incorporated in Mil. & Vet. Code, § 823.) Obviously the purpose of these provisions is to allow the board to protect land sold by it from sales for delinquent taxes while it is subject to an executory contract of sale.

By a recent decision, the United States Supreme Court held that a state may tax real property sold by the United States to an individual under an executory contract. (S.R.A., Inc. v. Minnesota, 327 U.S. 558 [66 S.Ct. 749, 90 L.Ed. 851].) The rationale of the holding is that, under such circumstances, the retention of legal title by the federal government is for security purposes only and does not exempt such property from taxation. The purchaser from the government sought exemption from tax liability under the authority of the “land grant” cases, but the court refused to follow them. In reaching its conclusion, the court pointed out that the decision in Irwin v. Wright, 258 U.S. 219 [42 S.Ct. 293, 66 L.Ed. 573], concerned the taxation of land held by an entryman under the Reclamation and Homestead Acts who had not received his final certificate of land clearance. “The reason for the rule against state taxation until the equitable title passes from the United States to the entryman was there placed upon the policy of the Government to require those who sought government land to perform the required conditions of residence or improvement before beneficial title, subject to state taxation, passes from the United States to the locator. This transfer was said not to take place until the certificate was issued . . . The prohibition of state taxation until the certificate was issued was one of the means by which the Government furthered its public policy of land settlement. After compliance with the condition and before the patent, the state could tax.” (S.R.A., Inc. v. Minnesota, supra.)

The primary purpose of the Veterans’ Farm and Home Purchase Act is to finance the purchase of farms and homes for veterans. Under the terms of the statute and contract with Eisley, equitable title and right to possession passed to him when he entered into the conditional sale transaction. (Mil. & Vet. Code, §§ 821-830; cf., §§ 987.1-987.10.) The basic procedure is quite different from that of the statutes permitting entry on public lands. It is not the social policy of the federal government in disposing of the public land which precludes a state from taxing real property acquired by an entryman under a land grant statute. The controlling factor is the status of the title, and upon the vesting of the equitable title, the land may be taxed to the entryman.

In the few jurisdictions in which the' question has arisen since the decision of the S.R.A. ease, the state courts have followed its reasoning and held that the vendee in pdssession under an executory contract of sale is liable as the owner for the taxes. (Ken Realty Co., Inc., v. State, 247 Ala. 610 [25 So.2d 675]; Bancroft Inv. Corp. v. City of Jacksonville, 157 Fla. 546 [27 So.2d 162]; Norbet Corp. v. City of Newark, 135 N.J.L. 314 [51 A.2d 541].) The Ken Realty Co. ease antedates the S.R.A. decision. An application for rehearing, considered after the S.R.A. decision, was denied, the court referring to the S.R.A. case and stating that its “decision is in accord with the principles therein stated.” (25 So.2d 679.)

Originally the Florida Supreme Court held that property sold to a private purchaser under an executory contract from the United States is immune from state taxation under federal law and is also exempt from taxation under the state statutes. Upon a rehearing, after the decision in the S.R.A. case, the court receded from this position, stating that a review of the question, in the light of the S.R.A. case, leads to a conclusion that the vendee is the owner of the taxable interest in the property, “that the United States has abandoned such use of it as gave it an exemption status, and that it is now amenable to taxation under the law of Florida.” (Bancroft Inv. Corp. v. City of Jacksonville, on Rehearing, 27 So.2d 169, 171.)

Petitioners rely upon sections 987, 2190.1 and 4986.4 of the Revenue and Taxation Code as indicating the legislative intent to provide that property purchased under a contract of sale pursuant to the Veterans Farm and Home Purchase Act is assessable merely on a “possessory interest” basis. Sections 987 and 2190.1, enacted in 1945, relate to “a possessory interest in real estate of the Veterans Welfare Board” and section 987 specifies a formula for determining the cash value of the possessory interest of the contract purchaser from the Department of Veterans Affairs. But the Legislature cannot set aside the constitutional provision declaring that “ [a] 11 property . . . shall be taxed in proportion to its value ’ ’ (Art. XIII, § 1) by requiring the assessment of property at less than its full cash value. Section 987, is, therefore, invalid as being in conflict with the constitutional provision. The reference in section 2190.1 of the Revenue and Taxation Code to the “possessory interest” must be disregarded for the same reasons. Section 4986.4 of the same code is a procedural statute applying to land which has been acquired by the Veterans Welfare Board, providing for the cancellation of prior taxes upon such land, but it makes no provision for taxes after the conditional sale contract has been made.

Petitioners also rely upon Anderson-Cottonwood Irrigation Dist. v. Klukkert, 13 Cal.2d 191 [88 P.2d 685], and State Land Settlement Board v. Henderson, 197 Cal. 470 [241 P. 560]. In the first of them an irrigation district levied an assessment on certain land within the district and the assessment not having been paid, the lands were sold to the district. This court held that these lands, after their sale to the irrigation district, were not subject to county taxes for county government purposes, even though the lands were held for resale rather than for use for irrigation district purposes, on the ground that the “tax exemption provisions are directed solely to the ‘ownership’ of public property [and] the use to which such property is put becomes immaterial.” (Supra, p. 194.) But the property involved in that case was held by the district absolutely with full and complete right to use and enjoy it and there was no conditional sale contract outstanding. In the second case, this court, by writ of mandate, compelled the cancellation of assessments in the name of the State Land Settlement Board against land which had been sold to individuals by that agency. (State Land Settlement Board v. Henderson, supra.) As to that property, the court quoted with approval from San Pedro etc. R. R. Co. v. Los Angeles, 180 Cal. 18 [179 P. 393], as follows: “When an interest in land, whether freehold or for years, is severed from the public domain and put into private hands, the natural implication is that it goes there with the ordinary incidents of private property and therefore is subject to be taxed.” The earlier decision concerned the tax status of land leased to the railroad company, and as to such an interest, the court observed: ■ ‘"‘'The principle that a possessory right in public land is private property, and that it may be assessed for purposes of taxation to the person in possession, although in point of law he may have no right as against the state or government owning the land, has long been settled in this state. ’ ’ But this statement, also quoted in reaching the conclusion that the real property to which the Land Settlement Board held title was not assessable to it, had no application to the facts then before the court, and even from a literal reading of that portion of the opinion, out of context, it is difficult to extract the principle, as have petitioners, that “the court held that the purchaser should be taxed only upon his possessory interest.” The question presented for decision in the Land Settlement Board case did not concern the taxability to the purchaser of property sold by a state agency to an individual under an ex-ecutory contract giving a present right to possession, and the statements in regard to the asséssability of a lessee’s interest in real property are not in point in the present litigation. The decision did not establish a rule of property, but held that the state agency was not properly taxable on its reversionary interest, and the assessment and levy made against the state agency were ordered canceled.

The property here in controversy is properly assessable to the vendee in possession under an executory contract of sale. The alternative writ, therefore, is discharged and a peremptory writ of mandate is denied.

Gibson, C. J., Shenk, J., Traynor, J., and Spence, J., concurred.