Grand Lodge v. City of Burlington

Rowell, C. J. The plaintiff relies upon P. S. 496, subdivision VI, which declares that “real and personal estate granted, sequestered, or used for public, pious, or charitable uses, shall be exempt from taxation.” No claim is made that the property-in question is granted for any of those uses, but it is claimed that it is sequestered and used for pious and charitable uses. As it was not claimed below that it is sequestered or used for pious uses, that question can not be raised here. Nor was the question of sequestration for charitable uses raised below any further than it is involved in the claim there made that the property is “devoted” to charitable uses. But as the word “devoted” as there used fairly means, set apart, it is taken that thé plaintiff claimed below that the property is sequestered, in the sense of being set apart, for charitable uses. We assume without deciding that the expenditure of the net income from the rent in the way the plaintiff dispenses its charities and for the purposes named in the resolution, would be a charitable use of it within the meaning of the statute. But the time for such expenditure has not come, and will not come till the Temple is paid for and the fund accumulated, which will not be for a considerable time, according to the case. It cannot be said that the corpus of the property is now used for charitable uses, for the entire building is let to those who pay rent therefor to the plaintiff. Nor does the case disclose any intention on the part of the plaintiff ever to use the building itself or any part of it directly and immediately for such uses. And the mere intention to use the net income from the rent for such uses at some uncertain future time, before the arrival of which the intention may be changed, and the fund devoted to another and an entirely different purpose, is not a use of the property for charitable purposes within the meaning of the statute, for by the word “used”, employed in the statute, as applied to real estate, certainly, the direct and immedate use of the property itself is meant, and not the remote and consequential benefit derived from its use. Thus in Stiles v. Newport, 76 Vt. 154, 164, 56 Atl. 662, it is held that under the doctrine of implied exemption as applied to municipalities, the ultimate test is, not municipal ownership [209] but public use. So in The First M. E. Church v. Chicago, 26 Ill. 482, the question was whether, under a statute exempting from taxation “every building erected for the use of any literary, religious', benevolent, charitable, or scientific institution,” a building was exempt of which a part was used exclusively for religious purposes and a part was rented for compensation and the proceeds applied to religious purposes; and it was held that the part used for religious purposes was exempt, but that the part rented for compensation was not exempt. The court said that the meaning of the statute was, as applied to religious buildings and the furniture, that they must be used directly for sacred and not for secular purposes; that it was not enough that the profits or income of the secular uses were to be appropriated to sacred purposes; that when money was made by the use of the building, it was profit, no matter to what purpose it was applied. In Northwestern University v. The People, 80 Ill. 333, 22 Am. Rep. 187, the Constitution of the state provided that such property as the General Assembly might deem necessary “for school, religious, and charitable purposes, might be exempt from taxation.” The court said that by the language of the Constitution the General Assembly was restricted in the exercise of its discretion to property for schools and religious and charitable purposes; that property for such purposes, in the primary and ordinary acceptation of the term, is property that in itself is adapted to, and intended to be used as an instrumentality in aid of, such purposes; that it is the direct and immediate use, and not the remote or consequential benefit to be derived through the means of the property, that was contemplated. But the Supreme Court of the United States, reviewing the case on error, said that the Constitution did not say “property used for schools,” as the opinion of the court below implied; that neither the important word use nor schools was found in the Constitution; that if the language had been that the Legislature might “exempt property for the use of schools,” that Court would readily have agreed with the court below, for that would indeed have been the appropriate language to convey the idea on which that court rested its decision; but that the makers of the Constitution used other language because they had another [210] meaning, and did not use that language because they did not mean it; that they said the Legislature might exempt from taxation “such property as they might deem necessary,” not for the use of schools, but “for school purposes;” that the distinction is very broad between property contributing to the purposes of a school and property that is directly or immediately subjected to use in the school; that the purposes of the school and the school are not the same; that the purpose of a college or university is to give youth education; that money that comes from the sale or rent of land dedicated to that object aids the purpose; and that land so held and leased is held for school purposes in the fullest and clearest sense. University v. People, 99 U. S. 309, 25 L. ed. 387. That case is referred to in Book Agents of Methodist Episcopal Church, South, v. Hinton, 92 Tenn. 188, 19 L. R. A. 289, 295, 21 S. W. 321, as instructive on the point of the immediate use of the property. See the note to that case, and 12 Am. and Eng. Ency. Law, 2d Ed., 318. So where a statute exempted municipal property from taxation, it was held to be its unmistakable meaning that the exemption should extend only to such property as was actually used in the exercise of municipal functions, and not to property leased by the municipality, though the money realized therefrom was applied to a public purpose. Cincinnati v. Lewis, 66 Ohio St. 49, 63 N. E. 588. Nor does the mere adoption of an ambulatory resolution to devote to charitable uses the income of the property after the building is paid for, constitute a present sequestration of it to those uses, for it is at most only a thing in expectancy, and may never become a thing in possession. The plaintiff also relies upon P. S. 498, which somewhat restricts the language above quoted from sec. 496, and provides that lands or buildings exclusively used for the support of orphanages, homes, asylums, or hospitals that, without pay, receive and care for indigent, old, or infirm patients or inmates, shall be exempt from taxation. But the case does not come within that provision, for the building is not now being used for the support of any such institutions any more than it is sequestered to charitable uses. But the plaintiff says that the taxes for the years 1905 [211] and 1906 were levied without authority, because the property was specially set aside as exempt in the quadrennial appraisal of 1902, which fixed its status as non-taxable for that full quad rennial period; and because-the decision of the board of civil authority in 1904, on appeal from the assessors, was conclusive on both parites for the remainder of that quadrennial period. The fact that the property was set in the quadrennial appraisal apart from the taxable real estate did not fix its status as non-taxable, because it was not the duty of the assessors thus to set it. Their only duty was to appraise it. This is shown by the fact that then the only appeal allowed was from 'the appraisal. V. S. 392. But now, under No. 29, Acts of 1906, P. S. 529, 530, an appeal is allowed, not only from the appraisal, but also from any of the acts of the assessors. But whether this change imposes any duty upon assessors in this behalf, it is not necessary to inquire. And when in 1904 the assessors set the property in the grand list and taxed it, they were within their jurisdiction, for, as we have seen, the property was taxable. Therefore, the decision of the board of civil authority, reversing the judgment of the assessors and exempting the property, was erroneous, to say the least. But if only erroneous, it was good for that year, as it was allowed to stand. But when in 1905 the listers again set the property in the grand list and taxed it, and their action was affirmed by the board of civil authority on appeal, that concluded the matter for that year, for the property was taxable, and so both boards had jurisdiction, and this, notwithstanding the contrary judgment of 1904, for res judicata goes, not to the jurisdiction, but only in bar. And if the board of civil authority erroneously disallowed the bar, which we do not decide, its judgment was good for that year, not being set aside. The action taken in 1906 being like the action taken in 1905, it follows that the taxes of these years were legally assessed, and so not recoverable. Judgment affirmed.