FIRST UNITARIAN CHURCH OF LOS ANGELES (a Corporation), Appellant, v. COUNTY OF LOS ANGELES et al., Respondents
L. A. No. 23847
In Bank
Apr. 24, 1957
May 22, 1957
48 Cal.2d 419
In the circumstances, counsel‘s representation of petitioner was not “pro forma” rather than zealous and active, and such representation did not deprive petitioner of the right to the effective aid of counsel in any sense cognizable on habeas corpus; rather, it is our opinion that even if the record now before us (which, of course, includes matters which were not before the District Court of Appeal in People v. Atchley (1955), 132 Cal.App.2d 444) were here on appeal, it would not impel the conclusion that there was any reversible error. (Cf. People v. Avilez (1948), 86 Cal.App.2d 289, 296-297 [194 P.2d 829]; People v. Manchetti (1946), 29 Cal.2d 452, 458-459 [175 P.2d 533].)
For the reasons above stated, the order to show cause is discharged and the petition is denied.
Shenk, J., Carter J., Traynor, J., Spence, J., and McComb, J., concurred.
Gibson, C. J., concurred in the judgment.
Petitioner‘s application for a rehearing was denied May 22, 1957.
Charles E. Beardsley and Stanley A. Weigel as Amici Curiae on behalf of Appellant.
Harold W. Kennedy, County Counsel, Gordon Boller, Assistant County Counsel, and Alfred C. DeFlon, Deputy County Counsel for Respondents.
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 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.
“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
“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 orgаnization who makes such declaration knowing 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
It is noted that
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
This statutory method of providing for exemptions continued until the adoption of the
In 1944
Section 3611 of the Political Code was carried into the Revenue and Taxation Code in 1939 as
No meritorious argument has been or can be advanced to the effect that
It may properly be said that the primary purpose of the people of the state in the enactment of
It is then to consider whether
The plaintiff contends that
If it be assumed for the moment that
It thus appears that under the tax laws of the state wholly apart from
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
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
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
In addition to the means heretofore and otherwise provided by law the Legislature, with special reference to the implementation of
There is therefore no merit in the plaintiff‘s contention that the exception of householders from the requirements of
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
It is claimed that
Without the slightest doubt the
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
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 tеnet 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 com-
It is further claimed by the plaintiff that
It is also claimed that
Despite the fact that the
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
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
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
Apart from considerations involving the constitutional amendment the additional requirement of an oath imposed by
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
The plаintiff 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 (
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
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.
Schauer, J., Spence, J., and McComb, J., concurred.
TRAYNOR, J.—I dissent.
A restraint on free speech is not less a restraint when it is imposed indirectly through withholding a privilege rather than directly through taxation, fine, or imprisonment. This
The tax exemptions in question are likewise comparable to the privilege of using the mails at less than cost. In Hannegan v. Esquire, Inc., 327 U.S. 146, 156 [66 S.Ct. 456, 90 L.Ed. 586], the court declared that, “grave constitutional questions are immediately raised once it is said that the use of the mails is a privilege which may be extended or withheld on any grounds whatsoever. . . . Under that view the second-class rate could be granted on condition that certain economic or political ideas not be disseminated. The provisions of the [statute] . . . would have to be far more explicit for us to assume that Congress made such a radical departure from our traditions and undertook to clothe the Postmaster General with the power to supervise the tastes of the reading public of the country.” The dissent of Mr. Justice Brandeis in United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 430-431 [41 S.Ct. 352, 65 L.Ed. 704], invoked in the Esquire case, reasoned that, “Congress may not through its postal police power put limitations upon the freedom of the press which if directly attempted would be
Although free speech may not be an absolute right, it must be jealously guarded. As the court stated in American Communications Assn. v. Douds, 339 U.S. 382, 412 [70 S.Ct. 674, 94 L.Ed. 925], the first amendment “requires that one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result therefrom.” That test is still a valid one. It was not repudiated in Dennis v. United States, 341 U.S. 494 [71 S.Ct. 857, 95 L.Ed. 1137]. The court was there concerned not to abolish the clear and present danger test but to bend it to the special situation of a critical time and the diabolic strategy of the Communist Party. As before, the key word in its solution was danger: “‘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.‘‘” (341 U.S. at 510.) There was evidence that the defendants, members of the Communist Party, advocated overthrow of the government by force and violence. The jury was instructed that it could not find them guilty under the statute unless it found that they had conspired with the intent that their advocacy “be of a rule or principle of action and by language reasonably and ordinarily calculated to incite
It is essential in each case to inquire into the character of the speech to be restrained and the surrounding circumstances. The probability that advocacy will break out in action depends on the numbers, methods, and organization of the advocates.
The state provisions in question penalize advocacy in a totally different context from that in the Dеnnis case. The penalty falls indiscriminately on all manner of advocacy, whether it be a call to action or mere theoretical prophecy that leaves the way open for counteradvocacy by others. Moreover, with regard to advocacy of support of a foreign government, the state provisions penalize not only advocacy during actual hostilities but also advocacy during peacetime of action during hostilities that may occur, if at all, in the remote future.
There is no evidence in the present case that plaintiff church or its members advocate the overthrow of the government by force or otherwise. There is no evidence that plaintiff church or any of the organizations seeking tax exemptions are infiltrated by Communists or other disloyal persons, or that they are in any danger of such infiltration. The evidence is all to the contrary. It is baldly assumed that plaintiff church advocates the overthrow of the government by force because it refuses to declare that it does not. It is one thing for a court to sustain convictions after it has concluded following a full trial that it is dealing with an organization wielding the power of a centrally controlled international Communist movement; it is quite another to deprive a church of a tax exemption on the ground that it will not declare that it does not advocate overthrow of the government.
If it is unconstitutional to restrain plaintiff from advocating overthrow of the government, it is a fortiori unconstitu
The majority opinion, however, invokes the rule that the government may attain a legitimate objective through means reasonably related thereto even though there is an incidental restraint on speech. Thus, in securing qualified and trustworthy employees for government service a loyalty oath may be required, not for the purpose of restraining speech, but as a means of selection. (Adler v. Board of Education, 342 U.S. 485, 492 et seq.; Garner v. Board of Public Works Los Angeles, 341 U.S. 716, 720 et seq.; Gerende v. Baltimore etc. Board of Elections, 341 U.S. 56; Steinmetz v. California State Bd. of Education, 44 Cal.2d 816; Pockman v. Leonard, 39 Cal.2d 676.) Similarly, American Communications Assn. v. Douds, 339 U.S. 382, held that in seeking to keep interstate commerce free of political strikes, Congress may require labor officials to file non-Communist affidavits as a condition to their unions’ invoking the jurisdiction of the National Labor Relations Board.
In such cases it is necessary to determine whether the provisions that incidentally restrain speech are in fact reasonably related to the attainment of the governmental objective. In Lawson v. Housing Authority, 270 Wis. 269 [70 N.W.2d 605], cert. denied, 350 U.S. 882 [76 S.Ct. 135, 100 L.Ed. 778], the Supreme Court of Wisconsin considered a federal statute that provided in effect that no housing unit constructed under the statute could be occupied by a member of an organization designated as subversive by the attorney general. Pursuant to this statute, the Milwaukee Housing Authority adopted a reso
In the present case the majority opinion thus states the governmental objective: “Encouragement to loyalty to our institutions and an incentive to defend one‘s country in the event of hostilities . . . 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. . . . 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 issue thus narrows to whether a state can properly restrain free speech in the interest of promoting what appears to be eminently right thinking. A state with such power becomes a monitor of thought to determine what is and what is not right thinking. Great as a state‘s police power is, however, the United States Supreme Court has yet to sanction its breaking into people‘s minds to make them orderly. In
Advocacy does not occur in an intellectual vacuum. Usually it answers or challenges other advocacy. As Mr. Justice Frankfurter aptly stated in Dennis v. United States, 341 U.S. 494, 549-550: “Of course no government can recognize a ‘right’ of revolution, or a ‘right’ to incite revolution if the incitement has no other purpose or effect. But speech is seldom restricted to a single purpose, and its effects may be manifold. A public interest is not wanting in granting freedom to speak their minds even to those who advocate the overthrow of the Government by force. For, as the evidence in this case abundantly illustrates, coupled with such advocacy is criticism of defects in our society. Criticism is the spur to reform; and Burke‘s admonition that a healthy society must reform in order to conserve has not lost its force. Astute observers have remarked that one of the characteristics of the American Republic is indifference to fundamental criticism. Bryce, The American Commonwealth, c. 84. It is a commonplace that there may be a grain of truth in the most uncouth doctrine, however false and repellant the balance may be. Suppressing advocates of overthrow
Errors in thought or expression are best counteracted by deeper thought and more cogent expression. Only through free discussion can subversive doctrines be understood and effectively combatted. “‘The interest, which [the
The majority opinion in the present case goes far beyond any United States Supreme Court decision in upholding legislation that restricts the citizen‘s right to speak freely.
I would reverse the judgment.
Gibson, C. J., concurred.
CARTER, J.—I dissent.
I approach the consideration of this case with a profound consciousness that the problems involved may have a direct impact upon the stability of our state and federal governments. Evidently those who enacted the legislation here involved felt that it was necessary to preserve the status quo of those governments. On the other hand the plaintiff challenges the enactments as an invasion of fundamental constitutional guarantees to it and other religious institutions. We are, therefore, at the outset, faced with the problem as to what sanctions, in the way of pledges of fealty and loyalty, our government may exact from a taxpayer in order to qualify the latter for a tax exemption granted to all in the same class. The solution of this problem depends upon our interpretation and application of the constitutional guarantees relied upon by plaintiff as barriers against such sanctions.
It must be remembered that while our government was “conceived in liberty,” it was born in revolution. The Declaration of Independence was the antithesis of a pledge of allegiance or loyalty to the British government of which the then American colonists were a part. This memorable document epitomized the concept of its framers of the objects and purposes of government and the right of the people to change it by force if necessary. It declared: “We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their
The events which followed the adoption of the Declaration of Independence by the Continental Congress on July 4, 1776, are well known to every student of American history. These events culminated in the Constitutional Convention at Philadelphia during the summer of 1787 where the Constitution of the United States was drafted. Many of the delegates at the Constitutional Convention had been members of the Continental Congress which had adopted the Declaration of Independence. They were revolutionists in the truest and most dignified sense. It should be remembered that the Declaration of Independence and the Constitution of the United States were prepared by a group of men who had endured tyranny under a monarchial form of government for over three generations. They were the leaders in the struggle which overthrew that government and they sought to establish a government of the people, by the people, and for the people, which would derive its just powers from the consent of the governed. They sought to establish justice, ensure domestic tranquility, promote the general welfare, provide for the common defense and secure the blessings of liberty to themselves and their posterity—a government which would govern without tyranny and without oppression and which would guarantee to the governed all of the liberty that a free people in a homogenous society could enjoy.
The great liberality accorded to the guarantees of freedom of speech and press by those at the head of our government during its formative period is exemplified by the following statement in the First Inaugural Address of President Thomas Jefferson. He there declared: “If there be any among us who would wish to dissolve this union or change its republican form, let them stand undisturbed as monuments of the safety
Over a century and a half has elapsed since the above quoted utterances of Thomas Jefferson. Our government has withstood one major revolution and several minor armed rebellions but the fundamental basic concept of civil liberties embraced within the Bill of Rights has remained unimpaired.
It is worthy of note that the framers of the Constitution of the United States saw fit to exact of the person who assumed the office of President a very simple oath which reads as follows: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.” (
“Following that, Oliver Cromwell in his desperate efforts to find a legitimate basis for his dictatorial regime, demanded an oath preceding the election of parliament in 1653 that no one participating in the election would allow the constitution ‘as settled in one person and parliament’ to be disturbed. But Cromwell died and the oath was forgotten. The rupture which the oath was supposed to heal did not disappear until toleration and a liberal, truly constitutional government had taught people how Catholic and Protestant, how parliamentarian and authoritarian, how Whig and Tory could live peaceably together, with no one requiring the other to swear oaths which were either unnecessary or ineffectual.
At this point, I cannot refrain from quoting the words of warning contained in the powerful concurring opinion of Mr. Justice Black in Wieman v. Updegraff, 344 U.S. 183, 192 [73 S.Ct. 215, 97 L.Ed. 216]: “History indicates that individual liberty is intermittently subjected to extraordinary perils. . . . The first years of our Republic marked such a period. Enforcement of the Alien and Sedition Laws by zealous patriots who feared ideas made it highly dangerous for people to think, speak, or write critically about government, its agents, or its doctrines, either foreign or domestic. Our constitutional liberties survived the ordeal of this regrettable period because there were influential men and powerful organized groups bold enough to champion the undiluted right of individuals to publish and argue for their beliefs however unorthodox or loathsome. Today, however, few people and organizations of power and influence argue that unpopular advocacy has this same wholly unqualified immunity from governmental interference. For this and other reasons the present period of fear seems more ominously dangerous to speech and press than was that of the Alien and Sedition Laws. Suppressive laws and practices are the fashion. The Oklahoma oath statute is but one manifestation of a national network of laws aimed at coercing and controlling the minds of men. Test oaths are notorious tools of tyranny. When used to shackle the mind they are, or at least they should be, unspeakably odious to a free people. Test oaths are made still more danger
“. . . Our own free society should never forget that laws which stigmatize and penalize thought and speech of the unorthodox have a way of reaching, ensnaring and silencing many more people than at first intended. We must have freedom of sрeech for all or we will in the long run have it for none but the cringing and the craven. And I cannot too often repeat my belief that the right to speak on matters of public concern must be wholly free or eventually be wholly lost.” (Emphasis added.)
History is replete with accounts of the many stratagems created by tyrants to violate the individual‘s liberty. But it is also replete with accounts of man‘s constant warfare against these devices and victories won by courageous judges, legislators, administrators, lawyers, and citizens.
In 1787, the founders of this nation assumed that they had settled these matters for all time when they drew upon the lessons of history and wrote a Bill of Rights to assure the individual permanent freedom from official tyranny, and the right freely to participate in the process of self-government.
“Such constitutional limitations arise from grievances, real or fancied, which their makers have suffered, and should go pari passu with the supposed evil. They withstand the winds of logic by the depth and toughness of their roots in the past. Nor should we forget that what seems fair enough against a squalid huckster of bad liquor may take on a very different face, if used by a government determined to suppress political opposition under the guise of sedition.” (Learned Hand, J., in United States v. Kirschenblatt (C.C.A.2d), 16 F.2d 202, 203 [51 A.L.R. 416].)
“These specific grievances and the safeguards against their recurrence were not defined by the Constitution. They were defined by history. Their meaning was so settled by history that definition was superfluous. . . . ‘Upon this point a page of history is worth a volume of logic.’ New York Trust Co. v. Eisner, 256 U.S. 345, 349 [41 S.Ct. 506, 65 L.Ed. 963, 16 A.L.R. 660].” (Frankfurter, J., United States v. Lovett (1945), 328 U.S. 303, 321, 323 [66 S.Ct. 1073, 90 L.Ed. 1252].)
“It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U.S. 616 [6 S.Ct. 524, 29 L.Ed. 746], in Weeks v. United States, 232 U.S. 383 [34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B 834], and in Silverthorne Lumber Co. v. United States, 251 U.S. 385 [40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426]) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments. The effect of the decisions cited is: That such rights are declared to be indispensable to the ‘full enjoyment of personal security, personal liberty, and private property;’ that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties to the other fundamental rights of the individual citizen—the right to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly decided that these Amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts, or by well-intentioned but mistakenly over-zealous executive officers.” (Gouled v. United States (1920), 255 U.S. 298, 303 [41 S.Ct. 261, 65 L.Ed. 647], Clarke, J.) (Emphasis supplied.) See also: Brandeis, J. dissenting, Olmstead v. United States (1927), 277 U.S. 438, 476, 478 [48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376], and Jones v. Securities & Exch. Com. (1935), 298 U.S. 1, 28 [56 S.Ct. 654, 80 L.Ed. 1015].
“If there is one fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” (Jackson, J., in West Virginia State Board of Education v. Barnette (1943), 319 U.S. 624, 642.) (Emphasis supplied.)
The story of the rise and fall of the oath ex-officio needs to be retold. It will be recalled that the early 1200‘s were marked by the adoption of this procedural device in the ecclesiastical courts. In this period the inquisitional oath began to take the place of the trial by compurgation oaths in the ecclesiastical courts. The compurgation trials conducted with the device of “oath helpers” had become little better than a farce. The new method of the oath ex-officio was one which pledged the accused to answer truly and was followed by a rational process of judicial probing by questions on the specific details of the affair. In a footnote by John H. Wigmore in 15 Harvard Law Review 615, it is stated that by the
Liberals in the church courts insisted that the oath could only be imposed if the court had a rational hypothesis for proceeding against the suspect. Such rational hypothesis could either be fama publica or clamosa insinnatio. However, this was too mild for those who wanted a more vigorous pursuit of heretics and schismatics, and they finally prevailed in establishing the doctrine that the oath could be imposed by the church official ex-officio without any antecedent foundation. This extreme position, however, directly resulted in the downfall of the power of the ecclesiastical courts because of the public indignation it aroused.
The ordinary course of trial by the Inquisition was this. A man would be reported to the inquisitor as of ill-repute for heresy, or his name would occur in the confessions of sоme other prisoners. A secret inquisition would be made and all accessible evidence against him would be collected. When the mass of surmises and gossip, exaggerated and distorted by the natural fear of the witnesses, eager to save themselves from the suspicion of favoring heretics, grew sufficient for action, the blow would fall. The accused was then prejudged. He was assumed to be guilty, or he would not have been put on trial, and virtually his only mode of escape was by confessing the charges against him, abjuring heresy, and accepting whatever punishment might be imposed on him in the shape of penance. Persistent denial of guilt and assertion of orthodoxy, when there was evidence against him, rendered him an impenitent, obstinate heretic, to be abandoned to the secular arm and consigned to the state. (See Henry Charles Lea, A History of the Inquisition of the Middle Ages, I, p. 407.)
However, the English people early registered their resistance to general inquisitorial methods and their attendant abuses. A statute passed in 1360 in the reign of Edward III, provided, “that all general inquiries before this time granted within any seignories, for the mischiefs and oppression which have been done to the people by such inquiries, shall utterly cease and be repealed.” (34 Edw. III, ch. 1.)
But in 1583 the Court of High Commission in Causes Ecclesiastical, under the leadership of Archbishop Whitgift, started a crusade against heresy wherever it could be found,
examining suspected persons under oath in most extreme ex-officio style.
In 1609 Sir Edward Coke, as Chief Justice of Common Pleas, granted prohibition against the High Court of Ecclesiastical Causes in Edward‘s case. (13 Rep. 9.) Edward had been charged with libel and the church court put him under the ex-officio oath to compel him to state his meaning of the libelous words he was accused of uttering. The common law court took jurisdiction away from the church court upon the ground, among others, that “in cases where a man is to be examined upon his oath, he ought to be examined upon acts or words, and not of the intentions or thought of his heart; and if any man should be examined upon his oath of the opinion he holdeth concerning any point of religion, he is not bound to answer the same.”
But the oath ex-officio persisted and the Court of the Star Chamber began during James’ reign to use the ex-officio oath in stamping out sedition. Here the common law courts were powerless to prеvent employment of the oath procedure because they lacked jurisdiction over the Court of the Star Chamber.
In 1639 the Court of the Star Chamber examined John Lilburn, “Freeborn John,” an opponent of the Stuarts, on a charge of printing or importing certain heretical and seditious books. Lilburn refused to answer questions “concerning other men, to insnare me, and to get further matter against me.” The Council of the Star Chamber condemned him to be whipped and pilloried for his “boldness in refusing to take a legal oath,” without which many offenses might go “undiscovered and unpunished.” (See 3 How. State Trials 1315, et seq.)
The whip that lashed “Freeborn John” smashed the Court of the Star Chamber as well. In July, 1641, Parliament abolished the Court of the Star Chamber, the Court of High Commission for Ecclesiastical Causes, and provided by statute that no ecclesiastical court could thereafter administer an ex-officio oath on penal matters. In 1645 the House of Lords set aside Lilburn‘s sentence and in 1648 Lilburn was granted £3000 reparation for the whipping which he had received.
Meanwhile, the scene of struggle against oaths ex-officio was carried to colonial America. The story is well told by R. Carter Pittman in 21 Virginia Law Rev. 763 from which the following quotations are taken:
“The settlement of the English colonials in the new world
took place at a time in English History when opposition to the ex-officio oath of the ecclesiastical courts was most pronounced, and at the period when the insistence upon the privilege against self-incrimination in the courts of common law had begun to have decided effect. . . . The ex-officio oath, as employed in the ecclesiastical courts, which regulated the most intimate details of men‘s daily life, and more particularly by the Court of High Commission, was possibly the most hated instrument employed to create the unhappy plight of these Puritans and Separatists. . . . “About getting out of England there was much ‘red tape’ and it consisted in the most part of taking oaths—the oath of Supremacy and the oath of Allegiance, etc. For days and weeks thousands waited aboard ship in the river Thames until this oath ordeal was over and after that they were forced with a refined cruelty to say the prayers in the Anglican prayer books twice a day at sea. . . .”
The trial of Mrs. Ann Hutchinson before Governor Winthrop of Massachusetts in the year 1637 was recalled by Mr. Justice Black in Adamson v. California, 332 U.S. 46 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223], when he commented at page 88:
“Mrs. Hutchinson was tried, if trial it can be called, for holding unоrthodox religious views. People with a consuming belief that their religious convictions must be forced on others rarely ever believe that the unorthodox have any rights which should or can be rightfully respected. As a result of her trial and compelled admissions, Mrs. Hutchinson was found guilty of unorthodoxy and banished from Massachusetts. The lamentable experience of Mrs. Hutchinson and others, contributed to the over-whelming sentiment that demanded adoption of the Constitutional Bill of Rights. The founders of this Government wanted no more such ‘trials’ and punishments as Mrs. Hutchinson had to undergo. They wanted to erect barriers that would bar legislators from passing laws that encroached on the domain of belief, and that would, among other things, strip courts and all public officers of a power to compel people to testify against themselves.” (Emphasis supplied.)
But the ingenuity of those who would use the oath against the unorthodox was undaunted.
See Harrison v. Evans, 1 English Reports 1437, decided by the House of Lords in 1767. Evans was a Protestant Dissenter and this fact was known to the Lord Mayor of London. Nevertheless, the Mayor appointed Evans to fill a vacancy as
The House of Lords, by a 6 to 1 vote, ruled with the dissenting Evans, overturned the judgments of the lower courts and returned to him his £600.
“Test oaths, designed to impose civil disabilities upon men for their beliefs rather than for unlawful conduct were an abomination to the founders of this nation. This feeling was made manifest in
Article VI of the Constitution which provides that no religious test shall ever be required as a qualification to any office or public trust under the United States.” (Black, J., dissenting In re Summers (1945), 325 U.S. 561, 576 [65 S.Ct. 1307, 89 L.Ed. 1795].) (Emphasis supplied.)“No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed. It cannot be denied, for example, that the religious test oath or the restrictions upon assembly then prevalent in England would have been regarded as measures which the Constitution prohibited the American Congress from passing.” (Emphasis supplied.) (Bridges v. California (1941), 314 U.S. 252 at 265 [62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346].)
It is revealing to note that test oaths and the struggle against them arose at a time when the division between church and state was in its early stages, when the separation was far from complete. The immunity from compulsory disclosure which ultimately developed affected not only the right of the individual to worship as he pleased but also his right, notwithstanding his place or mode of worship, to hold political office. The protection accorded religious belief developed hand in hand with nonsectarianism in government.
This policy has been recognized in the United States. While the original purpose behind the abolition of the test oath may have been to further religious liberty, the effect has been to extend political liberty. The following statement is illustrative: “This conjunction of liberties is not peculiar to religious activity and institutions alone. The First Amendment
The California 1897 Direct Primary Act permitted political parties to require persons, as a condition of voting at the primary, to give an oath that they would thereafter support the nominees of that party. That statute was declared unconstitutional and the Supreme Court, in Spier v. Baker (1898), 120 Cal. 370, said at page 379 [52 P. 659, 41 L.R.A. 196]:
“. . . And the moment you recognize the existence of power in the legislature to create tests in these primary elections, you recognize the right of the legislature to create any test which to that body may seem proper. While the test prescribed in this act may be said to be a most reasonable one, yet the right to make it carries with it the right to make tests most unreasonable. If the power rests in the legislature to create a test, then the power is found in a Democratic legislature to make the test at a primary election a belief in the free coinage of silver at the ratio of sixteеn to one, and the same power is found in a Republican legislature to make the test a belief in the protective tariff. If such a power may be sustained under the constitution, then the life and death of political parties are held in the hollow of the hand by a state legislature.”
In Thomas v. Collins, 323 U.S. 516 [65 S.Ct. 315, 89 L.Ed. 430], the same thought is expressed: “But it cannot be the duty, because it is not the right of the state to protect the public against false doctrine. The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” (Emphasis supplied.)
In the light of the foregoing discussion, let us consider the attacks made by plaintiff upon the oath here required. It is contended, with merit, that the oath here is unconstitutional in that it violates the equal protection clauses of both
In testing the reasonableness of the laws under attack here, the next question which presents itself is why are householders excepted from those who must take the oath before any tax exemption is allowed them? We are told that the “segment of householders in this state is so overwhelmingly large as compared with others chosen for exemption that the cost of processing them would justify their separate classification.” If this class is so “overwhelmingly large” it would appear that if the old adage “in numbers lie strength” is
There is in my mind no doubt whatsoever that the legislation with which we are here concerned bears no relation whatsoever to the objective to be achieved. Presumably that objective is to stamp out, by any means at hand, the promulgation of unpopular ideas. While the idea of the overthrow of the government of this country by force and violence in either peace or war is as abhorrent to me as it is to the majority of Americans, I am at a complete loss when it comes to imagining any reasonable theory on which the legislation in question can be considered an effective way of preventing such action. The tax itself is on property owned by churches and used for religious purposes and the exemption applies only when such property is used for such purposes. So far as the veteran‘s exemption is concerned, the tax to which it applies is also on property. Property taxes and unpopular beliefs or advocacy would appear to be as far apart as the poles and to bear no reasonable relationship one to the other. The clаssification here involved falls directly within the rule of the Louisville Gas case: it is arbitrary, it does not rest upon a difference bearing a reasonable and just relation to the act in respect to which the classification is proposed; it is a mere difference which “is not enough.”
THE OATH IS A VIOLATION OF THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF SPEECH:
In Danskin v. San Diego Unified Sch. Dist., 28 Cal.2d 536, 542 [171 P.2d 885], we held that “Freedom of speech and of peaceable assembly are protected by the First Amendment of the Constitution of the United States against infringement by Congress. They are likewise protected by the Fourteenth Amendment against infringement by state Legislatures. (Thomas v. Collins, 323 U.S. 516, 530 [65 S.Ct. 315, 89 L.Ed. 430]; De Jonge v. Oregon, 299 U.S. 353, 364 [57 S.Ct. 255, 81 L.Ed. 278].) However reprehensible a Legislature may regard certain convictions or affiliations, it cannot forbid them if they present ‘no clear and present danger that they will bring about the substantive evils’ that the Legislature has a right to prevent. ‘It is a question of proximity and degree.’ (Schenck v. United States, 249 U.S. 47, 52 [39 S.Ct. 247, 63 L.Ed. 470].) The United States Supreme Court has been alive to the difference between remote dangers and substantial ones, between remote dangers and immediate ones . . .
A reading of the majority opinion leaves in the minds of the reader the implication that the “clear and present danger” rule was abrogated by the later case of Dennis v. United States, 341 U.S. 494 [71 S.Ct. 857, 95 L.Ed. 1137]. In the Dennis case it was specifically noted by the court that in the
As Mr. Justice Douglas said in his dissenting opinion in the Dennis case, “Full and free discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilization apart.
“Full and free discussion has indeed been the first article of our faith. We have founded our political system on it. It has been the safeguard of every religious, political, philosophical, economic, and racial group amongst us. We have counted on it to keep us from embracing what is cheap and false; we have trusted the common sense of our people to choose the doctrine true to our genius and to reject the rest.
“There comes a time when even speech loses its constitutional immunity. Speech innocuous one year may at another time fan such destructive flames that it must be halted in the interests of the safety of the Republic. That is the meaning of the clear and present danger test. When conditions are so critical that there will be no time to avoid the evil that the speech threatens, it is time to call a halt. Otherwise, free speech which is the strength of the Nation will be the cause of its destruction.
“Yet free speech is the rule, not the exception. The restraint to be constitutional must be based on more than fear, on more than passionate opposition against the speeсh, on more than a revolted dislike for its contents. There must be some immediate injury to society that is likely if speech is allowed.”
Mr. Justice Douglas said that “If this were a case where those who claimed protection under the First Amendment were teaching the techniques of sabotage, the assassination of the President, the filching of documents from public files, the planting of bombs, the art of street warfare, and the like, I would have no doubts. The freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond the pale along with obscenity and immorality. This case was argued as if those were the facts. The argument imported much seditious conduct into the record. That is easy and it has popular appeal, for the activities of Communists in plotting and scheming against the free world are common knowledge. But the fact is that no such evidence was introduced at the trial.” The books on Leninism and Communism, etc., which were involved in the Dennis case were commented on by Mr. Justice Douglas as follows: “Those books are to Soviet Communism what Mein Kampf was to Nazism. If they are understood, the ugliness of Communism is revealed, its deceit and cunning are exposed, the nature of its activities becomes apparent, and the chances of its success less likely. That is not, of course, the reason why petitioners chose these books for their classrooms. They are fer-
I repeat that in the case at bar we haven‘t even had speech let alone any facts. Neither prejudice nor hate nor senseless fear should be the basis for abridging freedom of speech. “Free speech—the glory of our system of government—should not be sacrificed on anything less than plain and objective proof of danger that the evil advocated is imminent.”
American democracy is no accident; it is the majestic product of a vigorous, experimental and passionate history. This nation came into existence as the result of a purposeful struggle against governmental tyranny. The heritage of Thomas Jefferson—“Rebellion to Tyrants is obedience to God“—remains with us, embodied in our institutions and traditions. The spirit of Inquisition, which was abjured in the Declaration of Independence, has always been obnoxious to our political and social life. Equally, it has found no tolerance in our legal codes, our legal traditions, our juridical morality. Due process has meant a fair, legal process. Liberty has meant genuine, concrete liberty for the individual citizen—his right to freedom from search and seizure, his right to privacy, his right to be free of persecutory inquisition on grounds of race, color, creed, political opinion or association.
At this truly grave moment in our nation‘s growth it is in the power of this court to speak forthrightly in the language of Coke, Camden, and Bradley, in the language of the many illustrious jurists for whom the frenzy of the political market place never blurred the meaning of freedom.
“Under our constitutional system courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered,
What is required at this moment of this court is not innovation, but rather a restatement of the glowing principles by which the history of the western world has given dignity to its citizens: “Historical liberties and privileges are not to bend from day to day because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. A community whose judges would be willing to give it whatever law might gratify the impulse of the moment would find in the end that it had paid too high a price.” (Cardozo, J., Matter of Doyle, 257 N.Y. 244, 268 [177 N.E. 489].)
The issue is momentous, of far-reaching implication, and the ruling of the court will be a categorical imperative whose cumulative effect will be seen only in the fullness of time. “Nothing less is involved than that which makes for an atmosphere of freedom as against a feeling of fear and repression for society as a whole. The dangers are not fanciful. We too readily forget them. Recollection may be refreshed as to the happenings after the first World War by the ‘Report Upon the Illegal Practices of the United States Department of Justice,’ which aroused the public concern of Chief Justice Hughes (then at the bar), and by the little book entitled ‘The Deportations Delirium of Nineteen-Twenty’ by Louis F. Post, who spoke with the authoritative knowledge of an Assistant Secretary of Labor.” (Frankfurter, J., dissenting, Harris v. United States (1947), 331 U.S. 145, 173 [67 S.Ct. 1098, 91 L.Ed. 1399].)
Devotion to Americanism often calls for something other than conformity. The plaintiff in the present case knew that to protect the Constitution, indeed merely to invoke its protection for all Americans, required courage, and that hardihood to challenge a wrong done under color of authority was as indispensable to good citizenship as would be, in other circumstances, unquestioning obedience. President Thomas Jefferson wrote to Benjamin Rush in a letter dated April 21, 1803: “It behooves every man who values liberty of con-
In the last analysis, when the moment of decision comes, to the private citizen as well as to the judge, it is in the quiet of his own mind and in the glow of his own courage that Americanism thrives. And it is in the cumulative decision of millions, citizen as well as official, that Americanism is reborn each moment.
For the foregoing reasons, I would reverse the judgment.
Appellant‘s petition for a rehearing was denied May 22, 1957. Gibson, C. J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.
[S. F. No. 19450. In Bank. Apr. 24, 1957.]
DANIEL PRINCE, Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Respondent.