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District Court of Appeal, Second District, Division 1, California.


Civ. S. C. 26.

Decided: February 26, 1937

James P. Mackel, of Los Angeles, for appellant. Everett W. Mattoon, Co. Counsel, Gordon Boller, Deputy Co. Counsel, and D. DeCoster, Chief Deputy Co. Counsel, all of Los Angeles, for respondents.

This is an appeal by a religious corporation from a judgment in favor of defendants entered after sustaining defendant's demurrer to the first cause of action in plaintiff's complaint without leave to amend. While the complaint contained two causes of action, this appeal concerns only the first, for the reason that a stipulated judgment was entered in plaintiff's favor as to the second cause of action. The first cause of action in the complaint alleged that the plaintiff religious corporation is the owner of certain real property, which, with its improvements, is used solely and exclusively for purposes of religious worship, all being required therefor, and the same never having been rented or any rent received; that taxes were assessed against this church property in the year 1930; that plaintiff failed to pay the taxes so assessed, and thereafter, on June 30, 1931, the property was sold to the State of California by respondent County of Los Angeles under the claim that said taxes had become delinquent; that on November 9, 1931, plaintiff religious corporation, claiming that said sale was wholly void on the ground that the property so sold was exempt from taxes under the provisions of section 1 1/2 of article 13 of the Constitution of California (except as to $27.50 levied on account of Los Angeles County Flood Control), tendered said taxes, with interest, costs, and penalties, amounting in all to $1,462.03, to the county tax collector of respondent Los Angeles County; that this tender was accompanied by a written protest, but that the tax collector refused to accept the proffered tax money; whereupon such taxes were tendered by plaintiff, paid to, and accepted by the county treasurer of respondent county, thereby redeeming the property from the sale thereof to the State of California by making to the county treasurer the statutory and regularly computed redemption payment of the taxes, penalties, percentages, and costs. The complaint further alleged that plaintiff also filed a written demand with the council of the City of Glendale for the repayment of the portion of said taxes collected by the county on behalf of said respondent city and paid under protest, as aforesaid, which demand was rejected by the City of Glendale. The first cause of action in the complaint also alleged that at all times mentioned the county assessor and tax collector of respondent county had knowledge of the ownership and use of the property in question as therein stated, and that the same was exempt from taxation. This action is prosecuted by appellant religious corporation to recover from respondents the moneys so paid.

It is the contention of respondents that freely admitting that the 1930 tax in question was void, nevertheless appellant cannot recover the money paid thereunder, for the reason that the latter has not brought itself within the provisions of section 3819 of the Political Code, which attempts to prescribe a procedure for recovery of void taxes paid under certain circumstances. The pertinent section provides as follows: “At any time after the assessment–book has been received by the tax collector, and the taxes have become payable, the owner of any property assessed therein, who may claim that the assessment is void in whole or in part, may pay the same to the tax collector under protest, which protest shall be in writing, and shall specify whether the whole assessment is claimed to be void, or if a part only, what portion, and in either case the grounds upon which such claim is founded and when so paid under protest, the payment shall in no case be regarded as voluntary payment. And such owner may at any time within six months after such payment bring an action against the county, in the superior court, to recover back the tax so paid under protest.”

The sole question presented to us is whether the limitations prescribed in section 3819 of the Political Code apply to the right of a religious corporation to recover a tax paid on church property which by the fundamental law of the land (section 1 1/2, art. 13, Calif.Const.) is freed from such taxation.

The section of the Constitution last referred to is self–executing [St. John's Church v. County of Los Angeles, 5 Cal.App.(2d) 235, 42 P.(2d) 1093], and therefore no legislation is necessary to achieve its purpose; nor is any legislation permissible that will impair, limit or destroy the rights granted thereunder. In Winchester v. Howard, 136 Cal. 432, 64 P. 692, 69 P. 77, 79, 89 Am.St.Rep. 153, it was said: “We must submit to this policy established in the fundamental law, and therefore every constitutional mandate which can be put in force without legislation must be held to be self–executing, unless a contrary intent is shown.” In Cooley on Taxation, 4th Edition, it is said: “On the other hand, constitutional provisions declaring that certain property shall be exempt are self–executing and need no legislation to make the exemptions effectual.” Section 650, p. 1369. “In many, if not most, of the state constitutions, there are provisions expressly relating to the exemption of property from taxation. Some of these provisions, naming particular property as exempt, are self–executing so as to grant exemption without any action of the legislature.” Section 661, p. 1382.

Assuming that even though a constitutional provision is self–executing, the Legislature may, and in some instances must, enact legislation to facilitate its operation, and to provide convenient remedies for the protection of the right established, and for the determination thereof and the regulation of claims thereto; nevertheless, such legislation must be in furtherance of the purpose of the constitutional amendment and not in derogation, impairment, or destruction thereof. First M. E. Church v. Los Angeles County, 204 Cal. 201, 204, 267 P. 703. The Constitution enjoins upon the assessor the duty not to assess this property, which the complaint alleges is exempt by reason of its use, and in the consideration of a demurrer the truth of the facts alleged must be assumed. In our opinion, in the face of the constitutional exemption, the owner had a right to assume that the tax would not be levied, in view of the admitted exemption therefrom; and in fact the assessment never should have been made. The only right vested in the respondents is to have a determination of the fact as to whether the property comes within the provisions of the constitutional section. If in fact, as alleged in the complaint, it does come within the provisions of the section, its status is fixed and it is not taxable. The status is determined by the facts in connection with the use to which the property is put, and not by anything that may or may not be done by the owner or the assessor.

Our system of government is founded on the principle that all just powers are derived from the consent of the governed. When, therefore, the people have spoken, through their Constitution, directing that church property shall be exempt from taxation, it does not lie within the province of an assessor to levy a tax, nor is a tax collector or treasurer within his rights in accepting or attempting to keep money paid pursuant to an assessment which the Constitution outlaws. The legislature has no right, by either general or special legislation, to place any restriction upon a religious corporation in its efforts to obtain the return of money paid under an assessment levied in defiance of this self–executing constitutional amendment, which forbade the assessor to levy or the tax collector to demand or receive the tax.

In the face of the self–executing constitutional amendment here in question, we hold that the Legislature is without power, by statute, to prescribe that the owner of such property cannot appeal to the courts to recover money paid upon an assessment levied notwithstanding such constitutional amendment unless such owner makes demand upon the tax collector during a certain prescribed time, as required by the provisions of section 3819 of the Political Code. The constitutional mandate prohibited the assessor from making an assessment upon this property and restrained the assessor, treasurer, or any other tax–collecting agency, from collecting taxes thereon. Therefore, under the allegations of the first cause of action in plaintiff's complaint, any moneys collected by reason of such assessment are illegally and unlawfully held; and appellant is entitled to recover the same, because the allegations of the complaint affix to the property the status which brings it within the constitutional exemption. The general demurrer to plaintiff's first cause of action should not have been sustained.

The attempted appeal from the order sustaining the demurrer is dismissed, as no appeal lies from such order. The judgment is reversed, with directions to the court below to overrule respondents' demurrer, allowing the latter appropriate time within which to answer the first cause of action in plaintiff's complaint if respondents be advised to file such answer.

WHITE, Justice pro tem.

We concur: YORK, Acting P. J.; DORAN, J.

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