The opinion
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 section 1% of article XIII of the California Constitution. The immediate purpose of the proceeding is not to cancel or prevent collection of a tax; it is to compel a lawful assessment. When the lawful assessment has once been made the law itself will require all public officials concerned, whether named in this proceeding or not, to take all appropriate actions necessary to cancel any duality of assessment and to relieve petitioner of the unjust charge against his property; all this may be accomplished without the necessity for further and additional judicial proceedings by petitioner if the writ now sought *666 is granted. The Revenue and Taxation Code expressly provides for situations in which it becomes the duty of public officers to cancel an uncollected tax. Section 4986 declares that “All or any portion of any uncollected tax, penalty, or costs, heretofore or hereafter levied, may, on satisfactory proof, be canceled by the auditor on order of the board of supervisors with the written consent of the district attorney if it was levied or charged . . . (b) Erroneously or illegally. ” Section 4991, in mandatory language, ordains that “If the tax collector erroneously sells or deeds to the State property for the taxes which were a lien on the property for any year and the taxes for that year have been paid or were not legally a lien on the property, the auditor and the tax collector shall certify the facts to the board of supervisors. ■ The board of supervisors shall then order: (a) The county recorder to cancel the erroneous certificate or deed, (b) The auditor to cancel the sale and enter the fact and date of the cancellation on the margin of the delinquent roll opposite the description of the property. ’ ’ It should also be observed that section 4990 mandatorily provides for cancellation in the event of dual assessment: “On discovery that any property is assessed by the same taxing agency more than once for the same year, after payment of all charges justly due on the property the person having custody of the rolls shall certify the facts to the board of supervisors. The board of supervisors shall then order the auditor to cancel the other charges and assessments by án entry on the margin Of the roll and, if carried there, the delinquent and current roll.”
The significance of the above quoted sections, as to the procedural and equitable aspects of this case, 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 process 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.
*667 As emphasized in Dufton v. Daniels (1923), 190 Cal. 577, 581-582 [ 213 P. 949 ], " ‘It has been held in this state that to supersede the remedy by mandamus, the party must not only have a specific adequate legal remedy, but one competent to afford relief upon the very subject matter of his application, and one which is equally convenient, beneficial and effective as the proceeding by mandamus/ [Citations.] ” In the Dufton case petitioner sought a writ of mandate to compel the state board of control to audit and allow petitioner’s claim for his necessary travéling expenses as a state agent in returning to the State of California a fugitive from justice, under the provisions of section 1557 of the Penal Code. Although a statutory remedy was provided this court granted the writ, with the holding that “The remedy afforded by the statutes above cited is manifestly not equally convenient, because the action therein provided for must be transferred to Sacramento County upon demand of the attorney-general, regardless of the residence of the plaintiff; and it is not equally beneficial or effective, because the plaintiff therein, though successful, cannot recover his costs ...” (Italics added.)
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 petitioner 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 *668 when the rights of taxpayers situated similarly to petitioner are taken into consideration. Any other procedure would involve a multiplicity of suits, for the question as to the right to the exemption here claimed by petitioner applies to other women veterans in California—petitioner alleges there are approximately two thousand—in the same way as to petitioner. Thus this situation appears to be of considerable public importance, and the fact that complete and final relief may be given to this group of taxpayers by the issuance of a single writ further fortifies petitioner’s argument supporting the propriety of this particular proceeding.” (For comparable holdings in substantially similar cases see Alexander v. Superior Court (1928), 91 Cal.App. 312, 316 [ 266 P. 993 ]; People v. Board of Supervisors (1932), 126 Cal.App. 670, 672, 674 [ 15 P.2d 209 ] (mandamus to compel board of supervisors to cancel taxes); State Land Settlement Board v. Henderson (1925), 197 Cal. 470 [ 241 P. 560 ] (to compel cancellation of tax liens); see also Anderson-Cottonwood Irrigation Dist. v. Klukkert (1939), 13 Cal.2d 191 [ 88 P.2d 685 ] (to prohibit assessment); Glenn Colusa Irrigation Dist. v. Ohrt (1939), 31 Cal.App.2d 619 [ 88 P.2d 763 ] (mandamus to compel board of supervisors to cancel an assessment of taxes).)
Petitioners here seek to compel public officers to perform official duty and I am of the opinion that no other remedy than mandamus is available 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 and 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 secure 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.