Thiel College v. County of Mercer

Mr. Justice Gordon delivered the opinion of the court, January 2d 1883. We must read the first section of article ninth of the constitution and the Act of May 14th 1874, together, and as there is no real conflict between them, the former may help us to interpret the latter. The constitution exempts from taxation only “institutions of purely public charity,” and the act, “all hospitals, universities, colleges, seminaries, academies, associations and institutions of learning, benevolence and charity, with the grounds thereunto annexed and necessary for the occupancy and enjoyment of the same, founded and endowed, and maintained by public or private charity.” The latter clause brings the act within the constitutional limitation; not only must the exempted institutions be of a public character; not only must they be founded and endowed by public or private charity, but they must be maintained in the same manner. But when we come to apply this constitutional and statutory definition to Thiel college it will not fit at all. From a legal standpoint it has not a single feature of a public charity about it. It is not even alleged that a solitary charity pupil is now within its walls, or that it is in contemplation that there ever shall be a pupil of that kind. What kind of a charity is that in which every one pays, either in money or work, for what he gets, whether it be food or education? And what is the object of these charges for boarding and tuition, if it be not to make this institution self-sustaining? If, however, that is its object, the intention is that it shall be supported, “ maintained,” by revenues which it may derive from what it has to sell — education, and not by private or public charity. Concerning this corporation we may repeat what has been so well said by the learned judge of the court below: “The charter of this college enables it to receive charities, but imposes no liability on it to bestow any on.the public. Its students pay for their tuition in labor or money; and, in their admission, it has an unlimited discretion. It is compelled to receive no students against its own wishes. It can convert the very land, which it seeks to exempt from taxation, into money, and apply it to its own corporate use. It may do so with all its property, save the college fund.” [534] From this description of the plaintiff in error, it certainly no more resembles a public charity than the Delaware county institute of science, which was established “ for the purpose of the promotion and diffusion of general and scientific knowledge among the community at large, and the establishment and maintenance of a library and museum,” and of which it was said, per curiam, 13 Nor. 163, that so far from being a purely public charity, it was not a public charity at all, for that, though it might permit others to use its library, nobody could call it to account for the refusal of such permission. It is not nearly as much of a public charity as was that in Miller’s Appeal, 10 W. N. C. 168, where, as was alleged, the schools were maintained principally by charitable donations, and where the parents of none of the pupils were required to pay for their tuition but such as were able and willing so to do. Moreover, judging this institution by the rule stated in Donohugh’s Appeal, 5 Nor. 306, and it is utterly wanting of the character necessary to make it a public charity. In that case it was said that “ the essential features of a public use are, that it is not confined to privileged individuals, but open to the indefinite public.” But Thiel college is open only to a privileged class; namely, those who pay for their tuition, and of these only such as the trustees may see fit to admit. Furthermore, and admitting this institution to come within the provisions of the Act of 1874, we cannot see why it should complain of the officials of Mercer county. They caused to be assessed but thirty-seven out of fifty-five acres of land claimed by the corporation, and it is not pretended that the balance thus left unassessed was not entirely sufficient for the proper use and enjoyment of the college buildings properly so called. True, it is said, the design is to occupy the whole of it by a hoarding-house, houses for the use of the caterer, president, professors, and as a farm. But property of this kind cannot be permitted to escape taxation, otherwise a whole village or town might, in the end, come to be exempt. The improvements above mentioned, are no more necessary for the “ occupancy and enjoyment ” of a college, than is a parsonage for the occupancy and enjoyment of a church. Yet in the case of the Church of Our Saviour v. Montgomery county, 10 W. N. C. 170, we held that a parsonage, though built on the same- lot with a church, could not, under the Act of 1874, be exempted from taxation. This case is in point and rules the question before us, for the language of the act with reference to churches and their grounds, is precisely the same as that used with reference to colleges and their grounds. The judgment is affirmed. Sharswood, C. J., and Green, J., dissent.