Missouri Pacific Hospital Ass'n v. Pulaski County

Ed F. McFaddin, Justice. The question for decision is whether the property of the appellant, Missouri Pacific Hospital Association, is exempt from taxation. The appellees are Pulaski County, the City of Little Rock, the Little Rock Special School District, and John M. Rose, as a property owner in Pulaski county. The status of the appellant, and the use of its property will be discussed subsequently. Appellees filed petition, with the Arkansas Public Service Commission to have the property of the appellant placed on the assessment roll for ad valorem taxes. The Public Service Commission, after hearing evidence, made the order sought by the appellees, and rendered a written opinion that has proved helpful to this court. The Pulaski Circuit Court affirmed the order of the Public Service Commission; and the appellant has appealed, presenting the points herein listed. I. Is the Appellant’s Property “Used Exclusively for Public Charity,” and Therefore Exempt? The answer to. this question depends on the use of the appellant’s property measured to the applicable constitutional provisions. Article XVI, § 5 of the Arkansas Constitution says, in part: “ . . . the following property shall be exempt from taxation: . . . buildings and grounds and materials used exclusively for public charity.” ' Article XVI, § 6 of the Constitution says: “All laws exempting property from taxation other than as provided in this Constitution shall be void. ’ ’ Some of our cases construing the constitutional lan-' guage “used exclusively for public charity” are: Brodie v. Fitzgerald, 57 Ark. 445, 22 S. W. 29; Hot Springs School District v. Sisters of Mercy, 84 Ark. 497, 106 S. W. 954; Grand Lodge F. & A. M. v. Taylor, 146 Ark. 316, 226 S. W. 129; School District of Ft. Smith v. Howe, 62 Ark. 481, 37 S. W. 717; and Robinson v. Indiana & Arkansas Lumber Co., 128 Ark. 550, 194 S. W. 870, 3 A. L. R. 1426. These cases afford the guide to a decision in the present case. Acting under Art. XVI, § 5 of the Constitution, the Legislature, by Act No. 114 of 1883 (now found in § 13603, Pope’s Digest) provided: “All property described in this section, to the extent herein limited, shall be exempt from taxation . . . “Seventh. All buildings belonging to institutions, of purely public charity, together with the land actually occupied by such, institutions, not leased or otherwise used with a view to profit, and all monies and credits appropriated solely to sustaining and belonging exclusively to such institutions.” This subdivision has been several times before this court; but, as pointed out in Brodie v. Fitzgerald, supra, the right of exemption must be found in the Constitution rather than in the statute, since Art. XYI, § 6 so provides. Appellant claims that its property is exempt as coming within the last clause of Art. XYI, ^ 5, supra, that is: “All buildings and grounds and materials used exclusively for public charity.” We proceed, therefore, to determine whether the use made of appellant’s property is “exclusively for public charity”; and these facts appear to be admitted: (1) Appellant is a benefit association organized under the laws of Missouri, and composed of the employees of the Missouri Pacific Railroad Company and. the Missouri Pacific Transportation Company. (2) Appellant owns the hospital in Little Rock; and the employees of the railroad and transportation companies support the hospital by contributions from their wages and salaries each month; and these employees have absolute and exclusive control over the hospital, which is open to retired employees of these companies, and also to members of the families of the employees. (3) The hospital is principally open only to these people; but, in addition, the hospital receives some people who become sick or are injured on the property of the railroad or transportation' company. (4) The hospital does not “go out and take in the public generally that might come in and ask for admission.” (5) As previously stated, the hospital is supported by assessments made on the wages and salaries of employees. (6) These assessments are fixed by the Board of Trustees of the hospital, based on a scale depending on the amount of wages of each employee. (7) The assessments- are made to meet the requirements of the hospital; and, in the event that the hospital accumulates a surplus, the assessments are reduced or temporarily suspended. The above admitted facts, as to the use and financing of the appellant’s property, show that the property is not used “exclusively for public charity” within the rule announced in Hot Springs School District v. Sisters of Mercy, supra. In the reported case this court (speaking through Mr. Justice Hart) held the following to be some of the essentials existing in that case, and to be necessary to allow exemption of the property as “used exclusively for public charity”: A. The institution was open to any worthy sick person regardless of ability to pay. B. No funds were diverted from the institution. Whatever profit was realized from those who paid went to the benefit of those who could not pay, to extend and enlarge the charity of the hospital. Neither of these two essentials is present in the case at bar. The appellant’s hospital is not open to “any worthy sick person”; it is open only to Missouri Pacific employees, their families, and persons who may become sick or be injured on Missouri Pacific property. Furthermore, if the hospital accumulates a surplus, then such is returned to the members by reducing or temporarily suspending assessments. In short, the proof here shows that the appellant’s hospital is not used “exclusively for public charity”; and the úse is the determining factor. As stated by Chief Justice McCulloch in Grand Lodge v. Taylor, supra: “This language of the exemption clause refers, riot to the character of the corporation or association owning the property sought to be exempted, but, regardless of the character of the owner, to the direct and exclusive use of the property for public charity. ’ ’ In 51 Am. Juris., 606, et seq., there is an exhaustive discussion of hospitals as exempt from taxation. In 61 C. J. 500, et seq., this matter is also discussed. Of course, the decision in any state depends, to a large extent, on the wording of the constitutional provision in such state. Our Constitution limits the exemption to property “used exclusively for public charity”; and is much more restrictive than provisions in the constitutions of some other states. The wording of the restriction determines the distinction in some of the cases, as is pointed out in Annotations and cases cited in 51 Am. Juris., 606, et seq., from which -vye quote a part of the text: “Hospitals as such enjoy no inherent exemption from taxation, and their property is taxable except so far as exempted by constitutional provisions or legislative enactments. . . . Hospitals claiming exemption have the burden of showing that they clearly come within the terms of the exemption enactments. . . . Where the benefits of a hospital are restricted to a special class, the rules of law generally pertaining to such situations in the case of charitable institutions govern. So, a hospital to which the general public has no legal right of entry, and from which it may be excluded at the discretion of the managers, is not entitled to exemption from taxation as a purely public charity. A hospital maintained by a corporation created for the purpose of maintaining it for the benefit of employees of a railroad company, and used for treatment solely of members of an association composed entirely of such employees, is not for strictly charitable purposes within the meaning of a constitutional tax exemption. ’ ’ To sustain the last-quoted sentence, there is cited the case of Chaffee County v. D. & R. G. R. Co. Employees’ Relief Assn., 70 Colo. 592, 203 Pac. 850, 22 A. L. R. 902. In that case the Supreme Court of Colorado held that the hospital, very much like the one in the case at bar, was not exempt from taxation, since its property was not “used solely and exclusively for strictly charitable purposes.” The constitutional provision in Colorado concerning exemption is very similar to ours, and the hospital association in the Colorado case is very similar to the hospital association in the case at bar. A most enlightening case, construing our own constitutional provision as applied to a hospital operated for benefit of railway employees, is the case of S. L. S. W. Ry. Co. v. Yates, 23 Fed. 2d 283. In that case the U. S. Circuit Court of Appeals of the 8th Circuit decided that a hospital in Texarkana, Arkansas, was not exempt from taxation. The court said: “Funds to support the institution are to be obtained by assessments, based on a wage-earning scale, collected monthly from the employees. There are other provisions which emphasize those above quoted or outlined but sufficient has been said to show the general plan of the trust to be that the use of the property is confined to the employees (and their dependents) of appellant and its affiliated lines. The public in general, nor any part thereof, nor any indefinite class have any right to any use in this property and it is in no wise supported by any charitable gifts or donations, but only by the direct beneficiaries thereof and by contributions, in the form of loans, from the railways whose employees are protected. In short, it is simply the familiar plan of a hazardous business providing hospital and medical services for those engaged therein. It seems to us that this is clearly not a usage ‘exclusively for public charity.’ We base the above conclusion on ah independent construction of this provision of the Arkansas Constitution. However, there are certain Arkansas Supreme Court decisions which tend to support, if they do not compel the same conclusion. Those are Hot Springs School Dist. v. Sisters of Mercy, 84 Ark. 497, 106 S. W. 954; McDonald v. Shaw, 81 Ark. 235, 242, 98 S. W. 952; Fordyce v. Woman’s Christian National Library Association, 79 Ark. 550, 96 S. W. 155, 7 L. R. A. (N. S.) 485. In all, of these cases that court has held that to constitute a public charity within the meaning of this constitutional provision, the trust must be for. the benefit of an indefinite class of persons. Another case, Arkansas Midland R. Co. v. Pearson, 98 Ark. 399, 135 S. W. 917, 34 L. R. A. (N. S.) 317, seems closely analogous, if not directly in point.” There áre many cases on the question here at issue. Some cases support the views already expressed; and some are to the contrary. We make no effort to list all such cases, nor to distinguish and discuss those, apparently or actually holding to the contrary. It is sufficient to say that we reach the conclusion, in line with the cases and authorities we have cited, that the appellant’s property is not “used exclusively for public charity,” and is, therefore, not entitled to tax exemption under our constitutional provsion. II. Act 40 of 1931. The appellant relies most strongly on this act as granting the exemption from taxation. This act, which may be found in § 13587, Pope’s Digest, reads: “All corporations or institutions heretofore or hereafter organized, created and operated as a hospital for the purpose of treating the members of said organization and others, not leased or otherwise used with a view of profit, are hereby declared to be institutions of public charity and shall be free from taxation.” But the vice of the appellant’s argument in reliance on this act lies in the unconstitutionality of the act as applied to ‘the facts in this case. Art. XVI, § 5 of the Constitution provides what property is exempt from taxation; Art. XVI, § 6, as previously quoted, says: “All laws exempting property from taxation other than as provided in this Constitution shall be void.” When we hold, as we did in section I, supra, that the appellant’s property was not “used exclusively for public charity,” then Art. XVI, § 6 of the Constitution strikes down any legislative attempt to grant appellant any exemption from taxation. In Supreme Lodge v. Board of Review, 223 Ill. 54, 79 N. E. 23, 7 Ann. Cas. 38, the Supreme Court of Hlinois struck down'a legislative enactment which allowed a tax exemption broader than the constitutional provision. That is what we are obliged to do here. What was said in Brodie v. Fitzgerald, supra, is not only apropos; but is ruling: “Section 6 provides that ‘All laws exempting property from taxation other than as provided in this Constitution shall be void.’ It follows that if this property> is not exempt from taxation under the Constitution, it cannot be exempt under any act of the General Assembly, as the section last quoted is a limitation upon the power of the Legislature to exempt property from taxation.” We, therefore, conclude that Act 40 of 1931 is unconstitutional insofar as it attempts to grant tax exemption to property not exempt under Art. XYI, § 5 of the Constitution; and for that reason does not support the appellant in the case at bar. III. Res Judicata. Finally, appellant cites orders of the Pulaski County Court made in 1925 and 1931, and an order of the Arkansas Tax Commission made in 1929, each declaring appellant’s'property to be exempt from taxation; and appellant claims that these orders render res judicata any and all questions as to taxability of appellant’s property in the present proceedings. Against this plea, the appellees offer several defenses, some of which are: (1) administrative rulings are never res judicata; (2) there was no identity of parties as between any of the previous proceedings and the case at bar. We find it unnecessary to discuss-or decide these contentions, because we hold that a judgment rendered in one year, holding property to be exempt from taxes because “used exclusively for public charity,” is not res judicata regarding the taxes on the property for a subsequent year. The great weight of authority is to the effect that an adjudication upon liability for taxes of one year is no bar to an action for taxes for a subsequent year. In Keokuk & W. R. Co. v. Missouri, 152 U. S. 301, 38 L. Ed. 450, 14 S. Ct. 592, the U. S. Supreme Court said: “A suit for taxes for one year is no bar to a suit for taxes for another year. The two suits are distinct and separate causes of action.” In City of Newport v. Commonwealth, 106 Ky. 434, 50 S. W. 845, 51 S. W. 433, 45 L. R. A. 518, the Kentucky Court of Appeals said: “An adjudication upon a liability for taxes for one year is no bar to an action for taxes for a subsequent year. ” In Bank v. City of Memphis, 101 Tenn. 154, 46 S. W. 557 the Tennessee Supreme Court said: “The plea of res adjudicata is limited in its effect, in tax cases, to the taxes actually in litigation, and is not conclusive in respect to other taxes assessed for other and subsequent years. ’ ’ In Lakeshore Ry. Co. v. People, 46 Mich. 193, 9 N. W. 249 the Supreme Court of Michigan said: “The result of a suit for taxes of a particular year is not res judicata in subsequent suits between the same parties for taxes of other years, and the decisions upon legal questions arising in the first case are important only as precedents.” To the same effect see Chicago R. Co. v. Cass County, 72 Neb. 489, 101 N. W. 11, 117 A. S. R. 806; City of Davenport v. C. R. I. & P. R. Co., 38 Iowa 633; Shreveport Creosting Co. v. Shreveport, 119 La. 637, 44 So. 325; and State v. Brotherhood of R. Trainmen, 74 O. App. 263, 54 N. E. 2d 320. See, also, 34 C. J. 966. We, therefore, hold that the appellant’s plea of res judicata is without merit. The judgment of the Circuit Court is in all things affirmed.