People v. County of Tulare

289 P.2d 11, 45 Cal. 2d 317, 1955 Cal. LEXIS 323

Opinions

McCOMB, J.

pro tern.

Footnotes

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* — Petitioner is seeking the issuance of a writ of mandate to respondents directing them to increase the assessed valuation of all taxable property on the local rolls of Tulare County in compliance with an order of the State Board of Equalization dated August 15, 1955.

The order m question was issued by the State Board of Equalization upon findings made by said board following a hearing held by it on July 25, 1955, entitled “In the Matter of the Equalization of the Local Roll of Tulare County for the Fiscal Year 1955-1956” and conducted pursuant to the provisions of article XIII, section 9, Constitution of the State of California and sections 1831-1834 of the Revenue and Taxation Code.

The board found that the “average ratio of assessed value to market value of the taxable property within the County of Tulare is such that the addition of twenty-three (23) per centum to the valuation of said county is required to equalize the assessment of the property contained in said local assessment roll with the assessment of property in the several counties of the State” and ordered that “the assessed value of all taxable property in the local assessment roll for the fiscal year 1955-56 of the County of Tulare, except such property as is not subject to the laws generally applicable to the assessment and equalization of property by reason of specific constitutional provisions relating thereto, be increased by twenty-three (23) per centum.”

Also on August 15, 1955, the State Board of Equalization notified the county auditor and the Board of Supervisors of the County of Tulare, and the city council of each city in that county, of its order and directed the county auditor to increase the assessment of all property affected by its order by making the corresponding changes in the assessment roll.

On August 30, 1955, a proceeding was commenced in the Superior Court of Tulare County by the County of Tulare, as plaintiff, against the State Board of Equalization, the members thereof, and the county auditor of said county. In said action the county of Tulare challenges the regularity of the proceedings before the State Board of Equalization, the findings of the board and the validity of its order. On the same date an alternative writ of mandate was issued in that action by the superior court, directing the board and its members to set aside their order of August 15, 1955, or show cause as to why they had not done so, directing the county auditor to omit from the county assessment roll the 23 per cent increase as ordered by said board, commanding the board to show cause why its proceedings, insofar as they related to the county of Tulare, should not be reviewed according to the provisions of section 1094.5 of the Code of Civil Procedure, and ordering that pending the determination of said action the order of the board be stayed.

On September 1, 1955, the Board of Supervisors of Tulare County fixed the 1955 tax rate for said county, pursuant to section 2151 of the Revenue and Taxation Code, computing such rates without the 23 per cent increase ordered by the State Board of Equalization. Similarly, on August 31, 1955, the City Council of the City of Woodlake in Tulare County, which city collects its taxes on the county roll under the consolidated system of taxation, fixed its tax rate without including in its computation the 23 per cent increase ordered by the board. Each of these levies was made on the last day on which these entities could levy tax rates for 1955, and was in compliance with the mandate of the superior court.

This court issued an alternative writ of mandate returnable September 30, 1955.

The Legislature, in section 1094.5 of the Code of Civil Procedure, has provided an appropriate method of reviewing acts of a statewide administrative and quasi-judicial agency such as the State Board of Equalization. (Temescal Water Co. v. Department of Public Works, 44 Cal.2d 90, 105 [9] [280 P.2d 1].) The action of the State Board of Equalization is reviewable in the superior court pursuant to the provisions of section 1094.5 of the Code of Civil Procedure. (Temescal Water Co. v. Department of Public Works, supra; Eastern-Columbia, Inc. v. County of Los Angeles, 61 CalA.pp.2d 734, 745 [143 P.2d 992].)

Also rule 56(a)(1), Rules on Original Proceedings in Reviewing Court, 36 Cal.2d 41, provides: “If the petition might lawfully have been made to a lower court in the first instance, it shall set forth the circumstances which, in the opinion of the petitioner, render it proper that the writ should issue originally from the reviewing court.” In the instant case, application has in fact been made by respondent to the superior court having jurisdiction and that court having assumed jurisdiction, no valid reason appears why this court should take original jurisdiction in the matter. (Cf. Roma Macaroni Factory v. Giambastiani, 219 Cal. 435, 436 [1] [27 P.2d 371 ]; Brougher v. Board of Public Works, 205 Cal. 426, 440 [6] [271 P. 487].)

Where, as in the instant case, it appears that there is pending another action in the superior court seeking the same result, involving the same parties and the same issues, this court will generally not assume jurisdiction. (Irvine v. Gibson, 19 Cal.2d 14, 16 [3] [118 P.2d 812].) When another court with concurrent jurisdiction has assumed the same in an action seeking the same relief between the same parties, this court ordinarily will not assume jurisdiction. (W. R. Grace & Go. v. California Emp. Com., 24 Cal.2d 720, 727 [2] [151 P.2d 215] ; McMullen v. Glenn-Colusa Irr. Dist., 17 Cal.App.2d 696, 701 [6] [62 P.2d 1083].)

The exceptional facts presented in Perry v. Jordan, 34 Cal. 2d 87 [207 P.2d 47], are not here present. The cited case involved a statewide election, callable at the governor’s discretion, for a special or general election, under conditions as to which he could not act while litigation was pending, and in such case the parties were not the same. Therefore, a plea in abatement would not lie. Such is not the situation in this case. In the present case none of the special factors warranting the original writ in the Perry case exist. The dispute involved is solely between the State Board of Equalization and the county of Tulare. No question is involved as to the other 13 counties which have been the subject of similar proceedings before the state board because (a) the hearings were conducted separately and (b) the order in question was limited solely to the single county.

For the foregoing reasons the alternative writ heretofore issued is discharged and the petition denied.

Shenk, J.-, Carter, J., and Schauer, J., concurred.

Assigned by Chairman of Judicial Council.