St. John's Church v. County of Los Angeles

BARNARD, P. J.

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 having never been rented or any rent received. Taxes hav

[237]

ing been assessed against this property for the year 1930-1931, the plaintiff paid the same under protest and within six months thereafter and after demands made, brought this action under section 3819 of the Political Code to recover the amount paid. No issue was raised as to these facts, but the defendants in their answer alleged that the plaintiff had not made a return to the assessor accompanied by an affidavit, within the time and as required by subdivision 2 of section 3611 of the Political Code. A demurrer to this answer was sustained without leave to amend and from the ensuing judgment the defendants have appealed.

The sole question presented is whether, under subdivision 3 of section 3611 of this code, which was added in 1929, a failure to make the affidavit required by subdivision 2 of that section between the first Monday in March, and the first Monday in July of a tax year, operates to waive the exemption and to prevent the recovery of taxes so assessed and so paid under protest.

Section 1 of article XIII of the state Constitution provides that all property in the state not exempt under the laws of the United States shall be taxed “except as otherwise in this constitution provided”. The ensuing six sections exempt certain property from taxation. The property here in question comes within the provisions of section 1%, which provides that such property shall be free from taxation.

We are of the opinion that the section last referred to is self-executing. In

Winchester

v.

Howard (Rice

v.

Howard),

136 Cal. 432 [64 Pac. 692, 69 Pac. 77, 89 Am. St. Hep. 153], the court 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, fourth edition, it is said: