Bruce v. Gregory

• Citation: 423 P.2d 193,65 Cal.2d 666,56 Cal.Rptr. 265
• Court: United States State Supreme Court (California)
• Decision Date: 06 February 1967
• Parties: , 423 P.2d 193 Howard E. BRUCE, Plaintiff and Appellant, v. G. Leon GREGORY, as Tax Collector, etc., Defendant and Respondent. L.A. 28192. In Bank

Page 265

56 Cal.Rptr. 265

65 Cal.2d 666, 423 P.2d 193

Howard E. BRUCE, Plaintiff and Appellant, v. G. Leon GREGORY, as Tax Collector, etc., Defendant and Respondent.

L.A. 28192.

Supreme Court of California,

In Bank.

Feb. 6, 1967.

[423 P.2d 194] [65 Cal.2d 668] Fred H. Almy, San Bernardino, for plaintiff and appellant.

Stanford D. Herlick, County Counsel, and Robert R. Walker, Deputy County Counsel, for defendant and respondent.

PETERS, Justice.

This is an appeal from a judgment of the Superior Court of San Bernardino County denying a petition for a writ of mandate to compel respondent tax collector to make certain tax records regularly available for inspection by petitioner.

Appellant-petitioner is a citizen and taxpayer in San Bernardino County. One of his business endeavors is to locate parcels of land upon which the secured real property taxes are delinquent. He then contacts the owner of the land and endeavors to purchase the owner's interest. After paying off the tax liens, he normally resells the parcel for a profit.

Appellant has for several years ascertained the identity of parcels burdened by back-tax liens by examining the delinquent tax abstracts, which are maintained by the tax collector and are under his exclusive custody, care, and control.

In his complaint, appellant alleged that in 1963 the tax collector refused, for a period of over four months, to let members of the public (except for representatives of title companies) examine the delinquent tax abstracts. Thereafter, members of the public were permitted to examine these records during one hour in the morning and one hour in the afternoon of each business day of the tax collector's office. Again, examiners representing title companies were not so limited. ¹

Appellant made a demand of the tax collector for greater access to the delinquent tax abstracts, which demand was rejected. The trial court ordered an alternative writ of mandate to issue, and a hearing was had on the order to show cause.

The tax collector's testimony reveals that he originally denied appellant access to examine the records because appellant's actions had interfered with the normal conduct of business of the office. The interference cited, however, was not physical interference--not interruptions or inconvenience by appellant being in the office or monopolizing the record books. Rather it was that letters appellant regularly sent to owners to tax-delinquent parcels frightened the owners into believing their property was about to be sold at public auction. The recipients of these letters often telephoned the tax collector's office with frantic inquiries, imposing a burden on his staff which he wished to eliminate.

The tax collector was asked if appellant's practice of engaging in extended searches of the records was, itself, directly interfering with the office. The tax collector evaded an unequivocal answer. He admitted that the effect appellant's letters to landowners were having on the owners was the primary reason for denying him access to the records. He also admitted that few persons asked to make extended searches of the delinquent tax abstracts.

Testimony at the hearing also disclosed that a special desk in the office was set aside for persons making extensive searches in order to prevent crowding at the front counter of the office. The tax collector testified that at certain periods of the year his office was extremely busy and that at particular times, when the delinquent tax abstract records were being posted with new entries and when the county auditor had possession of these records, they would be unavailable for examination by all members of the public.

The trial judge concluded from the testimony at the hearing that, under the applicable law, the regulations which permitted appellant to examine the records only two hours a day were invalid. Rather than order the peremptory writ, the judge, exercising claimed discretionary powers, filed a memorandum in which he stated that he would deny the petition for writ of mandate if the tax collector, within 30 days, submitted reasonable amended regulations governing examination of the records by the public. The memorandum stated that the regulations would be valid if they permitted examination during all hours and all days when the office was open, except at times when examination would disrupt the orderly functioning of the office.

The tax collector drafted amended regulations, and, after they were modified once again at the trial judge's suggestion, these were approved by the court. Judgment denying the petition for writ of mandate was then entered.

The tax collector's 'Second Amended 'Procedures For Control And Use of Delinquent Abstracts" provides as follows: Information about one or two parcels will be furnished at all times by the tax collector's staff. The delinquent abstract books themselves will be open to public inspection on working days from 8:30 a.m. to 4:30 p.m. ² Use of the delinquent tax abstracts will be permitted only at a particular desk and only when space at that desk is available, provided, however, that the tax collector undertakes to provide a desk or table for use by the public. A special location is set aside for title company representatives.

The language under most vigorous attack on appeal states that, 'in order to maintain the functions of the Tax Collector's Redemption Division, as required by law, the use of the Abstract books May be restricted at the following times, as deemed necessary:

'1) During the month(s) of July and August and until such times as the posting of the past year's sales and removal of past year's redemptions have been completed.

'2) During the rush peak work load collection periods immediately preceding and '3) Immediately preceding the peak work load periods created by Tax Sales at Public Auction of Tax Deeded Lands.' (Italics added.)

[423 P.2d 196] following the December 10th and April 10th delinquent dates as established by State law.

The first issue is procedural: Did the trial court properly rest its denial of the writ of mandate on facts (i.e., the new regulations) arising After the complaint and answer were filed? In our opinion, the trial court's actions were proper and commendable.

It has been held that a judge hearing a mandamus proceeding may properly consider, in deciding whether to issue a peremptory writ, all relevant evidence, including facts not existing until after the petition for writ of mandate was filed. This is so because mandamus in an action where equitable principles apply (Allen v. Los Angeles County District Council of Carpenters, 51 Cal.2d 805, 811, 337 P.2d 457, cert. den. 361 U.S. 936, 80 S.Ct. 376, 4 L.Ed.2d 356; Dare v. Bd. of Medical Examiners, 21 Cal.2d 790, 795, 136 P.2d 304), and because issuance of the writ is frequently a matter for the court's discretion (Dowell v. Superior Court, 47 Cal.2d 483, 486--487, 304 P.2d 1009; compare Palmer v. Fox, 118 Cal.App.2d 453, 456--457, 258 P.2d 30).

Decisions are to be found in which mandamus relief was denied, even though petitioner's rights may have been violated, because facts arising after the petition was filed prevented the writ from serving any useful purpose. (Stracke v. Farquar, 20 Cal.2d 82, 124 P.2d 9; Bender v. Superior Court, 152 Cal.App.2d 817, 314 P.2d 54.) Other decisions hold that if the respondent has complied with the petitioner's demands after issuance of the alternative writ, the writ has accomplished the purpose of the mandamus proceedings and the petition should be dismissed as moot. (Thornton v. Hoge, 84 Cal. 231, 23 P. 1112; Muller v. Municipal Court, 146 Cal.App.2d 231, 303 P.2d 775; Mitchell v. Warren, 95 Cal.App.2d 594, 213 P.2d 413.) The rationale is, 'No purpose would be served in directing the doing of that which had already been done.' (Muller v. Municipal Court, supra, 146 Cal.App.2d at p. 232, 303 P.2d at p. 776; see also Crestlawn Memorial Park Assn. v. Sobieski, 210 Cal.App.2d 43, 47, 26 Cal.Rptr. 421.) In George v. Beaty, 85 Cal.App. 525, 260 P. 386, the court said: '(T)he remedy of Mandamus will not be employed where the respondents show that they are willing to perform the duty without the coercion of the writ. * * * "Mandamus will not issue to compel the doing of an act which has already been done, Or which the respondent is willing to do without coercion.' * * *" (P. 529, 260 P. p. 387.) '(W)here the return to the alternative writ shows a compliance therewith, the petition will be dismissed.' (P. 532, 260 P. p. 389.)

It is obvious that these procedural rules require the court in mandamus proceedings to apprise itself of facts that arise after pleading which render the dispute moot or make the remedy useless.

Amer. Distl. Co. v. City Council, Sausalito, 34 Cal.2d 660, 666, 213 P.2d 704, 708, 18 A.L.R.2d 1247, is distinguishable. There the court said: 'The petitioner's right to (mandamus) relief is determinable by the facts as they existed at the time the petition was filed (citation); and unless in the meantime the law defining the legal duty has been changed the peremptory writ should follow the terms of the alternative writ.'

In that case the city council had concluded that owners of one-half of the value of territory proposed to be annexed had not protested annexation and it approved the annexation without further hearings. Certain federally owned land was within the parcel sought to be annexed, and at the time of the protest it was assessed at zero dollars. Mandamus was sought to compel the city council to make a finding that owners of half the value of the land had protested, which was true unless the federal land could be valued.

The court held that the city council was required by statute to value the land according Rittersbacher v. Board of Supervisors, 220 Cal. 535, 32 P.2d 135, is also distinguishable. It concerned a petition for writ of mandate to compel respondent board of supervisors to cancel an...