Montana Catholic Missions v. County of Lewis & Clark

De Witt, J. The c ontention of appellant is, that section 2 of article XII of the constitution and section 2 of the revenue act of 1891 exempt from taxation the real estate described in its complaint. It is fully conceded by the complaint that the real estate is not used by the plaintiff exclusively, or at all, for an institution of purely public charity. It is alleged that it is intended to be so used. For the purposes of this decision it may be considered that the plaintiff is an institution of purely public charity. It is observed that the section of the constitution cited describes two classes of property. We will notice the distinc [564] tion as to these two classes: 1. It names the United States, the state, counties, cities, towns, school districts, municipal corporations, and public libraries. It is not left to the legislature to say whether or not the property of these institutions shall be exempt. The constitution, in itself, settles that it shall be. Nor is the test of exclusive use mentioned. The constitution says, simply, “the property” of these institutions shall be exempt. Then the section of the constitution advances to another class of property, and describes it as “property as may be used exclusively for” certain purposes, and defines the purposes, and among them names “institutions of purely public charity.” This class of property is not exempt from taxation, under the constitution, but may be made so by the legislature. The legislature has acted. (Revenue Act, 1891, § 2.) It has therein declared to be exempt property as is used exclusively for the purposes mentioned in the section of the constitution, supra, and redescribes those purposes in the exact language of the constitution, making only the appropriate changes in the mood of the verbs. So, with the constitution and the law together, we have this condition: Property of certain entities, as the state, cities, etc., is exempt; and property exclusively used for certain purposes is exempt. The property in question falls within the second class, as the plaintiff is not one of the institutions mentioned in the first class, as the state or a city, etc., but is an “institution of purely public charity.” And, we find from the complaint, that the property is not used exclusively, or at all, by such “institution of purely public charity.” The most that the complaint alleges is that the property is intended to be so used. Such intention is not sufficient to constitute the use contemplated by the constitution and the law. (Green Bay etc. Co. v. Outagamie County, 76 Wis. 587.) In Pennsylvania the court went further than we do, or need to, and held that the exemption would not apply to premises on which a church was in process of erection. (Mullen v. Commissioners, 85 Pa. St. 288; 27 Am. Rep. 650.) How much stronger against the appellant is the fact, that in its case, there is not even a commencement of the alleged intended use. [565] (See, also, Detroit Y. M. Soc. v. Mayor, 3 Mich. 172; Mulroy v. Churchman, 60 Iowa, 717; Redemptorist Fathers v. Boston, 129 Mass. 178; Washburn College v. Commissioners, 8 Kan. 344.) We are therefore clearly of the opinion that, as the property in question is not at all used for an “institution of purely public charity,” it is not exempt from taxation. This must be held unless a construction of the constitution, and the law, which appellant urges, and which we will now examine, is to be adopted. It contends that the language does not mean that the property used by such institution shall be exempt, but rather that the institution as such as an association or corporation shall be exempt from paying taxes on its property. The conclusion would be that such institution is exempt from paying taxes upon any of its property. Appellant contends that the word “institution,” used in the statute, means the association, the corporation or the concern, whatever it may be. Concede that such is the meaning. Still we are of opinion that the section is describing property that is, or may be, exempt, and not the institution which is the owner of property. The whole sense of the section is, that it describes property; the property of the United States; the property of the state, of cities, etc.; property used exclusively for-, for what? For the following purposes, then setting forth the purposes. The word “for” is not repeated before each described purpose, nor does grammatical construction or perspicuity require it. Its sense is carried over to each mentioned purpose. The intention is just as clear that the section means “ used exclusively for institutions of purely public charity,” as it is that it means “ used exclusively for agricultural societies.” We adhere to the view that the language intends to describe the property used, and not the concern using it, as being exempt. This view is in accord with the grammatical construction of the language, with the context of the section, and the general intent expressed therein. To adopt appellant’s construction would be to hold that if an institution were simply of the character described in the constitution and law, that, as far as the revenue laws are concerned, it might hold exempt from taxation all property of [566] any character, and of any amount in value, whether it used such property exclusively, or at all, for purely public charity. Against this view are the decided cases supra, reason, the context of section 2 of article XII, and the spirit of the constitution on the subject of taxation. That instrument provides: “All property shall be assessed in the manner prescribed by law, except as otherwise provided in this constitution.” (Art. XII, § 16.) So appellant seeks to bring itself within an exception to the constitutional rule that “all property shall be assessed.” Upon this subject Mr. Justice Brewer, as a member of the supreme court of Kansas, appropriately remarked: “All property receives protection from the state. Every man is secured in the enjoyments of his own, no matter to what use he devotes it. This security and protection carry with them the corresponding obligation to support. It is an obligation which rests equally upon all. It may require military service in time of war, or civil service in time of peace. It always requires pecuniary support. This is taxation. The obligation to pay taxes is coextensive with the protection received. An exemption from taxation is a release from this obligation. It is the receiving of protection without contributing to the support of the authority which protects. It is an exception to a rule, and is justified and upheld upon the theory of peculiar benefits received by the state from the property exempted. Nevertheless, it is an exception; and they who claim under an exception must show themselves within its terms.” (Washburn College v. Commissioners, 8 Kan. 344.) Appellant herein seeks to bring itself within the exception by a strained and unnatural construction of the constitution, as above shown. The district court held against it, in which that court was correct. Its judgment is therefore affirmed. Affirmed. Pemberton, C. J., concurs.