First Unitarian Church v. County of Los Angeles , 48 Cal. 2d 419 ( 1957 )

SHENK, J.

This is an appeal from a judgment for the defendants following an order sustaining a general demurrer to the complaint without leave to amend.

The action was brought to recover taxes paid under protest and for declaratory relief. The plaintiff is a duly organized nonprofit religious organization with its principal office in the city of Los Angeles. It is the owner of real property devoted exclusively to religious purposes and located within the jurisdiction of, and subject to property taxation by, the county and city of Los Angeles. It presented to the assessor of Los Angeles County an application for the exemption of its property, particularly described, for the fiscal year 1954-1955. The application was denied by the assessor on the ground that the plaintiff had not qualified for an exemption because it had failed and refused to include in the application for exemption the nonsubversive declarations required by section 32 of the Eevenue and Taxation Code. The application was otherwise complete. Thereafter the real property of the plaintiff was assessed as property not exempt, and within the time prescribed by law the plaintiff paid the tax under protest and brought this action for the recovery of the sum so paid. The assessor refused to allow the exemption because of the provisions of section 19 of article XX of the Constitution¹ and section 32 of the Eevenue and Taxation Code.²

Section 19 of article XX was adopted at the general election on November 4, 1952, and was placed as a new section in that article under the heading “Miscellaneous Subjects.” The section reads:

“Section 19. Notwithstanding any other provision of this Constitution, no person or organization which advocates the overthrow of the Government of the United States or the State by force or violence or other unlawful means or who advocates the support of a foreign government against the United States in the event of hostilities shall:

“ (a) Hold any office or employment under this State, including but not limited to the University of California, or with any county, city or county, city, district, political subdivision, authority, board, bureau, commission or other public agency of this State; or

“(b) Receive any exemption from any tax imposed by this State or any county, city or county, city, district, political subdivision, authority, board, bureau, commission or other public agency of this state.,

¹ ‘ The Legislature shall enact such laws as may be necessary to enforce the provisions of this section.” (Stats. 1953.)

Following the amendment to the Constitution section 32 was added to the Revenue and Taxation Code in 1953. It is as follows:

“Any statement, return, or other document in which is claimed any exemption, other than the householder’s exemption, from any property tax imposed by this State or any county, city or county, city, district, political subdivision, authority, board, bureau, commission or other public agency of this State shall contain a declaration that the person or organization making the statement, return, or other document does not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means nor advocate the support of a foreign government against the United States in event of hostilities. If any such statement, return, or other document does not contain such a declaration, the person or organization making such statement, return, or other document shall not receive any exemption from the tax to which the statement, return, or other document pertains. Any person or organization who makes such declaration Imowing it to be false is guilty of a felony. This section shall be construed so as to effectuate the purpose of Section 19 of Article XX of the Constitution.” (Stats. 1953, p. 3114.)

The plaintiff contends that both the constitutional provision and the code section are invalid. It is argued that the imposition and collection of taxes sought to be recovered and the denial of the church property tax exemption provided for in section 1% of article XIII of the Constitution, as applied to the plaintiff church and all other churches similarly situated, was and is in violation of the provisions of the state and federal Constitutions which require reasonable and proper classifications for purposes of taxation and provide for freedom of religion, freedom of speech and the protection of other rights specified in the protest a copy of which is attached to and made a part of the complaint. The provisions of the protest will be referred to later on in this opinion.

It is noted that section 19 of article XX does not specifically mention churches or any other organizations or individuals which are subject to its provisions. Its terms are general and apply to all owners of property as to which exemption from taxation might be claimed.

It is fundamental that the payment of taxes has been and is a uniform if not a universal demand of government, and that there is an obligation on the part of the owner of property to pay a tax legally assessed. An exemption from taxation is the exception and the unusual. To provide for it under the laws of this state requires constitutional or constitutionally authorized statutory authority. It is a bounty or gratuity on the part of the sovereign and when once granted may be withdrawn. It may be granted with or without conditions but where reasonable conditions are imposed they must be complied with.

A church organization is in no different position initially than any other owner of property with reference to its obligations to assist in the support of government by the payment of taxes. Church organizations, however, throughout the history of the state, have been made special beneficiaries by way of exemptions. A brief reference to the constitutional and statutory background relating to this and other exemptions in this state will be made.

We find in the Constitution of 1849 the following provisions : “Taxation shall be equal and uniform throughout the state. All property in this state shall be taxed in proportion to its value, to be ascertained as directed by law. ...” (Laws of California, 1850-1853, p. 57, art. XI, § 13.) No provision for exemption from taxation is found in that Constitution. In 1853 the Legislature passed an act entitled “An Act to provide Revenue for the Support of the Government of this State.” (Laws of California, 1850-1853, p. 669.) In section 1 of article I it was provided that all land in the state owned or claimed by any person or corporation shall be listed for taxation. In section 2 of the same article it was provided that “The following property shall not be listed for taxation.” Then follow several paragraphs where numerous classifications of property are named, such as publicly owned property, town halls, public squares, colleges, schoolhouses, public hospitals, asylums, poorhouses, cemeteries and graveyards. In paragraph 5 it was provided that the following also shall not be listed for taxation:1 ‘ Churches, chapels, and other buildings for religious worship, with their furniture and equipments, and the lots of ground appurtenant thereto and used therewith, so long as the same shall be used for that purpose only.” (Laws of California, 1850-1853, p. 671.)

This statutory method of providing for exemptions continued until the adoption of the Constitution of 1879. Section 1 of article XIII of the new Constitution required constitutional authority for exemptions. It was there provided that “All property in this State except as otherwise in this Constitution provided, . . . shall be taxed in proportion to its value, to be ascertained as provided by law. . . .’’In subsequent sections of the same article the exemption of numerous classes of particularly described property is provided for. Section 1% of article XIII provides for the church exemption as follows: “All buildings, and so much of the real property on which they are situated as may be required for the convenient use and occupation of said buildings, when the same are used solely and exclusively for religious worship . . . shall be free from taxation. ...”

In 1944 section le was added to article XIII which provides that “In addition to such exemptions as are now provided in this Constitution, the Legislature may exempt from taxation all or any portion of property used exclusively for religious, hospital or charitable purposes ...” This provision did not have the effect of changing existing laws with reference to the exemption of church property except to authorize the Legislature to extend the exemption of that property as provided for in section 1% of article XTIT to its personal property. Whether that section is self-executing is of no concern for in 1903 the Legislature added section 3611 to the Political Code, repeating the constitutional language which exempted church real property and providing among other things that “any person claiming property to be exempt from taxation under this section shall make a return thereof to the assessor annually, the same as property is listed for taxation, and shall accompany the same by an affidavit showing that the building is used solely and exclusively for religious worship, and that the described portion of the real property claimed as exempt is required for the convenient use and occupation of such building. ...” (Stats. 1903, p. 21.) The reference in that section to property which “is listed for taxation” was in contemplation of section 8, article XIII of the Constitution, which has provided since 1879 that “The Legislature shall by law require each taxpayer in this State to make and deliver to the county assessor, annually, a statement, under oath, setting forth specifically all the real and personal property owned by such taxpayer, or in his possession, or under his control, at 12 o’clock meridian, on the first Monday of March.”

Section 3611 of the Political Code was carried into the Revenue and Taxation Code in 1939 as section 254, which provides that any “person claiming the church . . . exemption shall make a return of the property to the assessor annually, the same as property is listed for taxation, and shall accompany it by an affidavit, giving any information required by the” State Board of Equalization. The form prescribed by the State Board of Equalization includes the nonsubversive portion of the affidavit, which the plaintiff has refused to include in its return.

No meritorious argument has been or can be advanced to the effect that section 19 of article XX is not a valid enactment under state law or that it is inapplicable to the church property exemption provided for in section 1% of article XIII. Section 19 of article XX was adopted in accordance with the procedures required by the Constitution for an amendment to that document by vote of the electors of this state. Its provisions are plain and unambiguous and require no interpretation in the matter of.their prohibitions. In direct terms it provides that no person or organization included in the proscribed class shall receive an exemption from any tax imposed by the state or any taxing agency, of the state. It applies to all tax exemption claimants. Its prohibitions are declared by its own terms and are mandatory and prohibitory. (Const., art. I, § 22.) By its enactment the people of the state declared the public policy of withholding from the owners of property in this state who engage in the prohibited activities the benefits of tax exemption. The denounced activities are criminal offenses under state law (Stats. 1919, p. 281), and the act of Congress known as the Smith Act (54 Stat. 670) makes it unlawful to advocate the overthrow of the government by force and violence.

It may properly be said that the primary purpose of the people of the state in the enactment of section 19 of article XX was to provide for the protection of the revenues of the state from impairment by those who would seek to destroy it by unlawful means. It contains no exceptions. It applies to churches when it provides that 1 ‘ Notwithstanding any other provisions of this Constitution” its prohibitions shall apply to all tax exemption claimants, and declares in effect that the tax revenues of the state shall not be depleted by those who would seek to destroy it in violation of the criminal laws of the state and the nation. It is clear that section 19 of article XX is a valid enactment under the Constitution of the state. That it was properly incorporated in the Constitution as a matter of state policy may not be questioned.

It is then to consider whether section 32 is a valid implementation of section 19 of article XX. Section 32 declares that “This section shall be construed so as to effectuate the purpose of Section 19 of article XX of the Constitution.” Notwithstanding the fact that a particular provision may be self-executing, legislation enacted in aid thereof is not invalid. (Chesney v. Byram, 15 Cal.2d 460, 463 [101 P.2d 1106].) The code section declares within itself its purpose but that purpose is obvious without the declaration.

The plaintiff contends that section 32 is void for several reasons. First, because of the exception from its requirements of householders who are entitled to an exemption of $100 of assessed value of their personal property as provided for in section 10% of article XIII of the Constitution. It is contended that this exception renders the section lacking in uniformity and thus provides for an unlawful classification of taxable property under the law. Secondly, that it violates the federal constitutional guarantees of separation of church and state and freedom of speech. The first contention will be considered in advance of the others for the reason that it involves the application of the Constitution and laws of the state relating to taxation.

If it be assumed for the moment that section 32 is invalid for any of the reasons stated, still the plaintiff, under the general provisions of state law, is not relieved from its obligation otherwise to disclose the facts required by section 32. In this connection the powers and duties of the assessor and the obligations of the plaintiff as the owner of real and personal property must be considered in the light of state law. Those powers, duties and obligations are set forth generally in the Revenue and Taxation Code.

It is the duty of the assessor to see that all property within his jurisdiction is legally assessed and that exemptions are not improperly allowed. He is liable on his bond “for all taxes on property which is unassessed through his wilful failure or neglect.” (§1361.) By section 441 it is provided in accordance with section 8 of article XIII of the Constitution that " Every person shall file a written property statement, under oath, with the assessor between noon on the first Monday in March and 5 p. m. on the last Monday in May, annually, and within such time as the assessor may appoint. At any time, as required by the assessor for assessment purposes, every person shall furnish information or records for examination.” For use by the assessor and the property owner the State Board of Equalization is required to prepare the forms of blanks for the property statement. (§ 452.) The assessor may subpoena and examine any person in relation to any statement furnished by him. (§ 454.) Any person who wilfully states to the assessor anything which he knows to be false, in any oral or written statement, even not under oath, but required or authorized to be made and relating to an assessment, is guilty of a misdemeanor. (§461.) Section 462 provides that every person is guilty of a misdemeanor who, after proper demand by the assessor, refuses to give the assessor a list of his taxable property or “Refuses to swear to the list.” By section 463 it is provided, among other things, that every person shall forfeit $100 to the people of the state, to be recovered by action brought in their name by the assessor, for each refusal to furnish the property statement or to fail to appear and testify when requested to do so by the assessor.

It thus appears that under the tax laws of the state wholly apart from section 32 it is the duty of the assessor to ascertain the facts with reference to the taxability or exemption from taxation of property within his jurisdiction. And it is also the duty of the property owner to cooperate with the assessor and assist him in the ascertainment of these facts by declarations under oath.

With particular reference to the many and various tax exemptions, the Revenue and Taxation Code provides for the ascertainment of the facts as a prerequisite for exemptions. Those facts in many instances must be made known to the assessor by the affidavit of the tax exemption claimant. They include, among others, veterans exemptions, church exemptions, welfare exemptions, college exemptions and orphanage exemptions. In the ease of the ehnreh exemption the affidavit shall give “any information required” to carry the exemption into effect. (§ 254.) It is significant to note that nowhere in the law of the state is there a requirement for the property owner to make a showing for tax exemptions in the case of householders, cemeteries, game refuges and a few others. It thus appears that the Legislature in addition to the exception of householders from the requirements of section 32 has made no requirement otherwise for any showing on their part of their right to the exemption, either by affidavit or otherwise. If the exclusion of householders from the requirement of section 32 renders that section void as discriminatory or lacking in uniformity it would seem to follow that the entire Revenue and Taxation Code with reference to procedures to qualify for exemptions would be void for the same reason. But obviously no such claim is made.

As stated it is the duty of the assessor to see that exemptions are not allowed contrary to law and this of course includes those which are contrary to the prohibitions provided for in section 19 of article XX. With the aid of section 32 his task is facilitated by the means therein supplied. Without that aid he is nevertheless required to ascertain the facts with reference to tax exemption claimants. Those facts may be disclosed in several different ways. In the instances in which he is without the assistance or cooperation of the tax exemption claimant and he is relegated to his own devices in discovering the facts he may do so by the examination under oath of the exemption claimant. (§454.) If he is satisfied from his investigations that the exemption should not be allowed he may assess the property as not exempt and if contested compel a determination of the facts in a suit to recover the tax paid under protest. In such a case it would be necessary for the claimant to allege and prove facts with reference to the nature, extent and character of the property which would justify the exemption and compliance with all valid regulations in the presentation and prosecution of the claim. In any event it is the duty of the assessor to ascertain the facts from any legal source available. In performing this task he is engaged in the assembly of facts which are to serve as a guide in arriving at his conclusion whether an exemption should or should not be allowed. That conclusion is in no wise a final determination that the claimant belongs to a class proscribed by section 19 of article XX or is guilty of any activity there denounced. The presumption of innocence available to all in criminal prosecutions does not in a case such as this relieve or prevent the assessor from making the investigation enjoined upon him by law to see that exemptions are not improperly allowed. His administrative determination is not binding on the tax exemption claimant but it is sufficient to authorize him to tax the property as nonexempt and to place the burden on the claimant to test the validity of his administrative determination in an action at law. For the obvious purpose, among others, of avoiding litigation, the Legislature, throughout the years has sought to relieve the assessor of the burden, on his own initiative and at the public expense, of ascertaining the facts with reference to tax exemption claimants. In addition to the means heretofore and otherwise provided by law the Legislature, with special reference to the implementation of section 19 of article XX, has enacted section 32. That section provides a direct, timesaving and relatively inexpensive method of ascertaining the facts. The Legislature could take these factors into consideration. It could also take into account the fact that the segment of householders in this state is so overwhelmingly large as compared with others chosen for exemptions that the cost of processing them would justify their separate classification. Where any state of facts can be reasonably conceived which would sustain legislative classification the existence of those facts will be presumed. (Lelande v. Lowery, 26 Cal.2d 224, 232-233 [157 P.2d 639, 175 A.L.R. 1109].) Furthermore, aside from the power of the Legislature to classify for the purpose of general legislation (see Reclamation District v. Riley, 192 Cal. 147, 156 [218 P. 762]; 24 Cal.Jur. 432) there is another and more conclusive reason why it may classify the personal property of householders. Section 14 of article XIII of the Constitution was amended in 1933 to provide that the Legislature “shall have the power to provide for the assessment, levy and collection of taxes upon all forms of tangible personal property . . . may classify any and all kinds of personal property for the purposes of assessment and taxation in a manner and at a rate or rates in proportion to value different from any other property in this State subject to taxation and may exempt entirely from taxation any or all forms, types or classes of personal property.” Of this constitutional provision this court said in Roehm v. County of Orange, 32 Cal.2d 280 at pages 283-284 [196 P.2d 550] : “Article XIII of the California Constitution as first adopted provided for a uniform property tax upon real and personal property alike. This requirement of uniform taxation of real and personal property, however, has been abandoned by subsequent amendments. Under these amendments the Legislature may classify personal property for purposes of taxation or exempt all personal property or any form, type, or class thereof,” and on page 285 the court declared that this authorization to the Legislature to classify tangible personal property is “all inclusive” and covers “all forms” of tangible personal property. The personal property of the householders falls within the kind of personal property which the Legislature was constitutionally authorized to classify for purposes of taxation.

There is therefore no merit in the plaintiff’s contention that the exception of householders from the requirements of section 32 renders that section invalid. There is likewise no merit in the contention that the section is invalid because of the failure of the Legislature to include within its requirements those who are entitled to exemptions under income tax laws and numerous other tax laws wherein certain exemptions are taken into consideration in arriving at the amount of the tax to be paid. Those taxes are in categories which are subject to different treatment by separate classification. The Legislature is at liberty to select one phase of a problem for appropriate action without the necessity of including all others which might be affected in the same field of legislation. (Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489 [75 S.Ct. 461, 99 L.Ed. 563], and cases there cited.) Section 32 applies to all exemption claimants to which it relates and supplies appropriate means for carrying out the purposes of section 19 of article XX. The foregoing application of tax laws of the state is peculiarly a matter of state concern. (Chanler v. Kelsey, 205 U.S. 466 [27 S.Ct. 550, 51 L.Ed. 882]; Orr v. Gilman, 183 U.S. 278 [22 S.Ct. 213, 46 L.Ed. 196] ; 24 Cal.Jur. 434-435.)

We turn now to the question of the validity of the constitutional amendment and implementing legislation under guarantees of the federal Constitution. We approach this phase of the case in the light of the fact that section 19 of article XX prescribes no penal sanctions and in a governmental sense may be deemed merely a declaration of state policy with reference to its own tax structure. However, the plaintiff has taken the position that this constitutional provision is in reality an unlawful limitation on its constitutional rights which are protected by the federal Constitution. This question is extensively argued on behalf of the plaintiff.

It is claimed that section 19 of article XX imposes an unconstitutional condition on the right to a tax exemption in that it violates the First and Fourteenth Amendments of the federal Constitution which prohibit, among other things, the making of any law “respecting an establishment of religion, or prohibiting the free exercise thereof. ...” (See McCollum v. Board of Education, 333 U.S. 203, 210 [68 S.Ct. 461, 92 L.Ed: 649, 2 A.L.R.2d 1338]; Cantwell v. Connecticut, 310 U.S. 296 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352].)

Without the slightest doubt the First Amendment reflects the philosophy that church and state should be kept separate. (Zorach v. Clauson (1952), 343 U.S. 306, 312 [72 S.Ct. 679, 96 L.Ed. 954] ; Everson v. Board of Education, 330 U.S. 1, 59 [67 S.Ct. 504, 91 L.Ed. 711, 168 A.L.R. 1392].) However, the First “Amendment embraces two concepts,-— freedom to believe and freedom to act. The first is an absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. ...” (Cantwell v. Connecticut, supra, 310 U.S. 296, 303-304; see also United States v. Ballard, 322 U.S. 78, 86 [64 S.Ct. 882, 88 L.Ed. 1148].) In the present case it is apparent that the limitation imposed by section 19 of article XX as a condition of exemption from taxation, is not a limitation on mere belief but is a limitation on action—the advocacy of certain proscribed conduct. What one may merely believe is not prohibited. It is only advocates of the subversive doctrines who are affected. Advocacy constitutes action and the instigation of action, not mere belief or opinion. (See Gitlow v. New York, 268 U.S. 652 [45 S.Ct. 625, 69 L.Ed. 1138]; Leubuscher v. Commissioner of Int. Rev., 54 F.2d 998, 999.)

We are concerned, then, not with the freedom to believe but with the limited freedom to act. The exercise of religious activity has long been recognized as subject to some limitation if that exercise is deemed detrimental to society. In Reynolds v. United States, 98 U.S. 145 [25 L.Ed. 244], the plaintiff was a church member and a conscientious practitioner of its established doctrine which encouraged polygamy. The Supreme Court in holding that such religious activity was subject to legislative limitations, stated at page 167 that to permit exceptions based on religious doctrine “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. ’’ (See also Cleveland v. United States, 329 U.S. 14 [67 S.Ct. 13, 91 L.Ed. 12]; Prince v. Massachusetts, 321 U.S. 158 [64 S.Ct. 438, 88 L.Ed. 645].) There are decisions wherein statutory provisions having some effect on religious activity have been upheld on the ground that their effect was only incidental. In Zorach v. Clauson (1952), supra, 343 U.S. 306, the Supreme Court sustained the New York “released time” statutory provisions whereby public schools were permitted to release children for religious purposes during a part of the normal school day. Contentions were made to the effect that those provisions prohibited the “free exercise” of religion or were “respecting an establishment of religion” within the meaning of the First Amendment. The court concluded at pages 312-313 that the First Amendment “studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise the state and religion would be aliens to each other —hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; 'so help me God’ in our courtroom oaths—these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. . . . We would have to press the concept of separation of Church and State to those extremes to condemn the present law on constitutional grounds.”

In the present case there is nothing in the new enactments, either constitutional or statutory, which interferes with the free exercise of religion. The plaintiff is affected not because it is a religious organization but because it is a taxpayer favored in the law by an exemption for which it has refused to qualify. The plaintiff has failed to point out what tenet or doctrine of its faith is infringed upon by compelling it to qualify for the exemption. Those tenets and doctrines are set forth in a document attached to the protest of the payment of its taxes and is made a part of the complaint. It announces to the world the plaintiff’s high principles and purposes. The prohibited activity cannot, with any reason whatsoever, be consistent with or bé tolerated by the religious doctrines there published and subscribed to by the plaintiff. As against a claim that such advocacy might be included within religious teaching, the Supreme Court has disposed of the contention. In Murdock v. Pennsylvania, 319 U.S. 105 [63 S.Ct. 870, 891, 87 L.Ed. 1292,146 A.L.R 81], the court stated at page 109 that “we do not intimate or suggest . . . that any conduct can be made a religious rite and by the zeal of the practitioners swept into the First Amendment. Reynolds v. United States, 98 U.S. 145, 161-167 [25 L.Ed. 244], and Davis v. Beason, 133 U.S. 333 [10 S.Ct. 299, 33 L.Ed. 637] denied any such claim to the practice of polygamy and bigamy. Other claims may well arise which deserve the same fate.” In Davis v. Beason, cited in the Murdock case, the court said of the advocacy of plural marriages: “To call their advocacy a tenet of religion is to offend the common sense of mankind. . . . The term 1 religion ’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of his obedience to His will. ... It is assumed by counsel of the petitioner, that because no mode of worship can be established or religious tenets enforced in this country, therefore any form of worship may be followed and any tenets, however destructive of society, may be held and advocated, if asserted to be a part of the religious doctrines of those advocating and practising them. But nothing is further from the truth. ... It does not follow that everything which may be so called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as religion.” As above noted the advocacy of the conduct prohibited has been made criminal by Congress (Smith Act, 54 Stat., part I, p. 670 [1940]), and through numerous statutory provisions by state legislatures it is well established that such advocacy is against local public policy. (See Levering Act, Stats. 1951 [3d Ex. Sess. 1950, ch. 7], p. 15.) In upholding the validity of the Levering Act this court in Pockman v. Leonard, 39 Cal.2d 676 [249 P.2d 267], stated that the oath required there and similar in effect to the present one, was “obviously not a test of religious opinion.”

It is further claimed by the plaintiff that section 32 imposes unconstitutional limitations upon the exercise of religion. As possibly affecting religion, section 32, in addition to the limitations imposed by the Constitution, requires the making of an oath. Since this oath is “obviously not a test of religious opinion” the plaintiff is not excused from making it any more than any other taxpayer. It appears that an oath was subscribed on behalf of the plaintiff by one of its officers when it filed its affidavit with the claim for exemption and its complaint in this action was also verified on its behalf. If the making of the oath is objectionable to the plaintiff it must be for reasons relating to the content of the particular oath and not merely because it is an oath. This contention, therefore, may not be sustained.

It is also claimed that section 19 of article XX is a restriction on freedom of speech. The phrase “freedom of speech” is helpful in bringing to mind the concept which it means to convey, but as is often the case such a descriptive phrase assumes a literal meaning which causes difficulty and confusion in the development of the law surrounding it. Justice Holmes aptly stated that it “is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis.” (See Hyde v. United States, 225 U.S. 347, 390 [32 S.Ct. 793, 56 L.Ed. 1114, 1135] ; see also Corwin, Bowing Out “Clear and Present Danger,” 27 Notre Dame Lawyer 325.)

Despite the fact that the First Amendment is cast in terms of the absolute it is not to be applied literally. There never has been an absolute right of free speech or an unqualified liberty to speak. “Speech” in the broad sense embodies all means of expression and communication. It is the primary vehicle by which individuals and organizations converse and transmit ideas, information and knowledge, and is deserving of the highest degree of protection and preservation. But there are other important interests of society which, at times, may conflict with the interest of individuals or groups in the exercise of this asserted freedom. In such circumstances the courts must declare when the individual or group does or does not have a right to speak freely, depending on a balance of the individual’s right to speak out as against the harm or injury society may suffer as a result of such speech. The courts have been called upon to engage in this weighing process in many instances. Illustrative are those which protect society from a breach of the peace (Chaplinsky v. New Hampshire, 315 U.S. 568 [62 S.Ct. 766, 86 L.Ed. 1031]), “loud and raucous” noises caused by sound trucks (Kovacs v. Cooper, 336 U.S. 77 [69 S.Ct. 448, 93 L.Ed. 513, 10 A.L.R.2d 608]), interruption of the free flow of commerce (American Communications Assn. v. Douds, 339 U.S. 382 [70 S.Ct. 674, 94 L.Ed. 925]) and the like.

The standard by which the various interests have been balanced has, until recently, been the so-called “clear and present danger” test. It was heretofore declared that the right to free speech could be infringed upon only in situations where it appeared that the “words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils” sought to be repressed. (Schenck v. United States, 249 U.S. 47, 52 [39 S.Ct. 247, 63 L.Ed. 470].) However, in Dennis v. United States, 341 U.S. 494 [71 S.Ct. 857, 95 L.Ed. 1137], the Supreme Court, reviewing its earlier decisions in this field, reconsidered the test in the light of existing and recognized realities and in conclusion stated: “Chief Judge Learned Hand,' writing for the majority below, interpreted the phrase as follows: ‘In each case [courts] must ask whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. ’ 183 F.2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.” By that statement of the test the standard by which a weighing of interests is to be made is clearly indicated.

The interest of the state in protecting its revenue raising program from subversive exploitation has already been considered. There are additional interests with which the state is concerned and which it is attempting to promote by granting exemptions from taxation. Included is the interest of the state in maintaining the loyalty of its people and thus safeguarding against its violent overthrow by internal or external forces. This legitimate objective is sought to be accomplished by placing in a favored economic position, and thus to promote their well being and sphere of influence, those particular persons and groups of individuals who are capable of formulating policies relating to good morals and respect for the law. It has been said that when church properties are exempted from taxation “it must be because, apart from religious considerations, churches are regarded as institutions established to inculcate principles of sound morality, leading citizens to a more ready obedience to the laws.” (County of Santa Clara v. Southern Pac. R. Co., 18 F. 385, 400 [9 Sawy. 165]; 24 Cal.Jur. 105.) The same may be said of others enjoying tax exemptions, notably veterans (art. XIII, § 1%; Allied Architects Assn. v. Payne, 192 Cal. 431 [221 P. 209, 30 A.L.R. 1029] ; Veterans’ Welfare Board v. Riley, 188 Cal. 607, 611 [206 P. 631]), colleges (art. XIII, § la) and charitable organizations (art. XIII, § lc) which, together with church groups, occupy positions whereby they may exert a salutary influence on the moral well-being of the community. Encouragement to loyalty to our institutions and an incentive to defend one’s country in the event of hostilities are doctrines which the state has plainly promulgated and intends to foster. It is the high purpose residing in its people that the state is attempting to encourage in its endeavor to protect itself against subversive infiltration. The propriety of that objective is recognized by the Supreme Court in the Dennis case (Dennis v. United States, supra, 341 U.S. 494) where it said at page 509: “Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.”

Obviously, a program of tax exemption designed to promote adherence to the principles of our government but constrained to include within its bounty persons or organizations actively advocating subversion and the support of enemies in time of hostilities, would be wholly without reason and result in its own defeat.

The test requires further that consideration be given not only to the “gravity of the ‘evil’ ” sought to be repressed but that the evil be “discounted by its improbability.” The Dennis case involved the validity of the Smith Act which prohibited and made criminal the advocacy of the activities denounced by the people of this state in its Constitution. In speaking of the imminence of the threat posed by the advocacy of subversive activities, the court at page 509 stated: “If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. . . . Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent.” In that case the court upheld an instruction to the jury that if. the defendants actively advocated governmental overthrow by force and violence as speedily as circumstances would permit, then as a “matter of law . . . there is sufficient danger of a substantive evil that the Congress has a right to prevent to. justify the application of the statute under the First Amendment of the Constitution.” In the present ease the constitutional provision is concerned with those who advocate the same prohibited activity. It must be said that such advocacy from whatever source poses a threat to our government and that the gravity of the evil is not to be materially discounted by its improbability within the meaning of the test employed in the Dennis case.

Against the fundamental interest sought to be safeguarded by- the state it is necessary to consider and balance the interest of those who assert that their right to speak has been unduly limited. From what has heretofore been said it is apparent that the limitation on speech is a conditional one, imposed only if a tax exemption is sought; that the prohibited advocacy is penal in nature, and that not one of the fundamental guarantees but only a privilege or bounty of the state is withheld if the exemption claimant prefers to engage in the prohibited criminal advocacy. It is obvious, therefore, that by no standard can the infringement upon freedom of speech imposed by section 19 of article XX be deemed a substantial one.

Apart from considerations involving the constitutional amendment the additional requirement of an oath imposed by section 32, of and by itself, gives no cause for the plaintiff: to complain that it is improperly deprived of constitutional freedoms where compliance with the oath requirements otherwise may properly be imposed. (Chesney v. Byram, supra, 15 Cal.2d 460, 465-468.)

Statutory limitations on the free exercise of speech similar in nature to the present limitation have been imposed as valid conditions upon which some privilege, benefit or conditional right has been withheld by a state. For example, as a condition to obtaining or maintaining employment state employees have been required to subscribe to oaths which declare their nonadvocacy of subversive activities (Pockman v. Leonard, supra, 39 Cal.2d 676); as have county employees (Hirschman v. County of Los Angeles, 39 Cal.2d 698 [249 P.2d 287, 250 P.2d 145] ; Steiner v. Darby, 88 Cal.App.2d 481 [199 P.2d 429]), municipal employees (Garner v. Board of Public Works of Los Angeles, 341 U.S. 716 [71 S.Ct. 909, 95 L.Ed. 1317], affirming Garner v. Board of Public Works, 98 Cal.App.2d 493 [220 P.2d 958]), public school teachers (Adler v. Board of Education, 342 U.S. 485 [72 S.Ct. 380, 96 L.Ed. 517, 27 A.L.R.2d 472] ; Steinmetz v. California State Board of Education, 44 Cal.2d 816 [285 P.2d 617] ; Board of Education v. Eisenberg, 129 Cal.App.2d 732 [277 P.2d 943] ; Board of Education v. Wilkinson, 125 Cal.App.2d 100 [270 P.2d 82]), and candidates for public offices (Gerende v. Baltimore etc. Board of Elections, 341 U.S. 56 [71 S.Ct. 565, 95 L.Ed. 745]; Shub v. Simpson, 196 Md. 177 [76 A.2d 332]). The right to a bounty or other benefits from the state has been so conditioned in the ease of applicants for state unemployment benefits. (State v. Hamilton, 92 Ohio App. 285 [110 N.E.2d 37]; Dworken v. Collopy, (Ohio) 91 N.E.2d 564.) Even the right to vote (Opinion of the Justices, 252 Ala. 351 [40 So.2d 849]), and to citizenship (United States v. Schwimmer, 279 U.S. 644 [49 S.Ct. 448, 73 L.Ed. 889]) has been so conditioned.

The plaintiff contends that the constitutional amendment and implementing legislation are invalid for other reasons based on constitutional guarantees. Such contentions are without merit in view of what has been said in disposing of the basic contentions presented.

Attention has been directed to the recent decision in Pennsylvania v. Nelson, 350 U.S. 497 [76 S.Ct. 477, 100 L.Ed. 640] (April 2, 1956), wherein the Supreme Court declared invalid a Pennsylvania penal provision (Pa. Penal Code, § 207, 18 Purdon’s Pa. Stat. Ann., § 4207) which made it a crime to advocate the violent overthrow of the federal or state government. Reasons for the decision in that case were that Congress had occupied the field to the exclusion of “parallel” state legislation; that the dominant interest of the federal government required that such “prosecutions” should be exclusively within the control of the federal government, and that the “Pennsylvania Statute presents a peculiar danger of interference with the federal program.” It is clear from the opinion of the court in that ease that the exclusion of state sedition legislation was limited to the imposition of criminal penalties. The court directed its attention to “anti-sedition statutes, criminal anarchy laws, criminal syndicalist laws, etc. ’ ’ No reference is made to the many so-called loyalty oath cases considered by the court in recent years. The court’s intention not to change or modify the established law in those cases by what it said in the Nelson case appears from its later opinion in Slochower v. Board of Education, 350 U.S. 551 [76 S.Ct. 637, 100 L.Ed. 692], decided on April 9, 1956, one week after the court’s decision in the Nelson case. In speaking of balancing the state’s interest in the loyalty of certain persons against the interests of those persons in their individuals rights, the court referred by way of illustration to its earlier decisions in Adler v. Board of Education, supra, 342 U.S. 485, and Garner v. Board of Public Works of Los Angeles, supra, 341 U.S. 716, 720. In both of those cases the court upheld the validity of state legislation which required, as a condition to acquiring or maintaining particular privileges or rights by certain persons, that such persons refrain from advocating the violent overthrow of our form of government. If in the present case the constitutional amendment and implementing legislation infringe upon an area occupied exclusively by Congress within the scope of the decision in the Nelson case, certainly the same conclusion would be true of the enactments involved in the Garner and Adler cases and the court would not have approved those decisions in the Slochower case. Furthermore, in any consideration of the possible application of the Nelson case to the case at bar, it would be unreasonable to conclude that the federal government intends to or has occupied the field of state taxation.

Finally, it should be observed that we are here dealing with questions of law and not with any questions of fact with reference to the activities of the plaintiff organization. As hereinbefore noted, there is attached to the protest filed with the payment of the tax sought to be recovered a statement of the principles and objectives of the plaintiff in furtherance of its religious activities. Those principles and doctrines reflect the high ideals of morality and personal conduct which are basic in the foundation of our system of government, both state and national. They are noble in purpose and inspirational in tone. It is inconceivable that an organization actuated by the doctrinal pronouncements there declared would knowingly harbor within itself any person or group of persons who would engage in the subversive activities referred to in section 19 of article XX. It is taken for granted that an organization actuated by those high purposes and ideals would be the first to champion the efforts of the state to protect itself against the destruction of those guarantees which are necessary to the existence of the plaintiff and to the preservation of the fundamental rights which it otherwise enjoys. But an assumed fact of the nonexistence of subversion in an organization is not enough. The law demands the ascertainment of that fact for purposes of taxation and section 32 requires the cooperation of the plaintiff in establishing it.

No good reason has been advanced why churches as well as all of the many other organizations seeking exemption from taxation should not be required to comply with the law of the state providing for assistance to the county assessors in the discharge of their duties to ascertain the facts which would justify the exemption. By the plaintiff’s failure and refusal to allege that it has complied with the law which would enable it to qualify for the exemption the complaint fails to state a cause of action. The demurrer was therefore properly sustained without leave to amend.

The judgment is affirmed.

Sehauer, J., Spence, J., and MeComb, J., concurred.

1 Hereinafter referred to as section 19 of article XX.

2 This and all other code sections hereinafter referred to will he to sections of the Revenue and Taxation Code unless otherwise indicated.