Dakota Lodge No. 1, I. O. v. Yankton County

MISER, C. This is an action by Dakota Lodge No. i, Independent Order of O’dd Fellows, a South Dakota corporation, against Yankton county, for the return and refund of $776.57, with interest, being taxes paid for the years 1907 to 1918., inclusive, and for the years 1922 to 1923, inclusive, on certain lots owned by plaintiff. The ground for claiming the refund is that, under the Constitution and statutes of this state, the property upon which the taxes were paid is exempt from taxation, because Dakota Lodge No. 1, Independent Order of Odd Fellows, is a charitable institution within the meaning of section 6, art. 11, Constitution of South Dakota, section 2056, Rev. Pol. Code of 1903, section 6670, Rev. Code 1919, and chapter 106, Laws of 1919. Inasmuch as important changes in the fundamental law relating to exemption from taxation were made 'by a constitutional amendment in 1918, and by the enactment of chapter 106 of the Session Laws of 19119 we shall first examine into the question of right to exemption from the taxes thereafter paid. In State ex rel. Eveland v. Johns, 43 S. D. 279, 178 N. W. 945, this court held that the express power given to the Legislature by section 2 of article 11 of the South Dakota Constitution, as amended in 1918, “to determine what class or classes of property shall be subject to taxation and what property, if any, shall not be subject to taxation,” made the inconsistent provisions of sections 6 and 7 of said article 11 “subservient to the purposes of the express power so granted.” The court also said: “We are therefore of the view that Chapters 105 and 106, Session Laws of 1919, is [404] a constitutional and valid exercise of legislative power and authority.” It was, therefore, with a full consideration of sections 5, 6, and 7 of article n, as well as section 2 of said article as amended in 1918, as well as consideration of section 6670, R. C. 1919, as amended by chapter 106, Laws 1919, that this court said, in Re Dakota Wesleyan University, 48 S. D. 84, 202 N. W. 284, that “Under our-present Constitution and existing statute all property that is owned by religious, educational, charitable or benevolent societies, * * * and all property * * * that is used exclusively for charitable, benevolent, religious, or educational purposes, is exempt from taxation.” In the case at bar, the trial court found that the lots in question ha-di at no time since plaintiff became the owner of the same been used exclusively for charitable or benevolent purposes within the meaning of section 6670, and that the plaintiff is not a charitable or benevolent society within the meaning of that section, and rendered judgment dismissing plaintiff’s complaint and confirming the action of defendant county in rejecting- the application for refund. From this judgment plaintiff has appealed. Respondent does not agree with the appellant that the question whether this lodge is a charitable institution is the sole question presented on this appeal; but, in the view we take of this case, it is unnecessary to decide whether the method of recovery chosen by plaintiff •was the proper method, nor to decide the applicability of the statute of limitations to the law relating to refunds. Was Dakota Lodge No. 1, Independent Order of Odd Fellows, a charitable society within the meaning of subdivision 3 of Section 6670, R. C. 1919, after the amendment by chapter 106, S. L. 1919, and prior to the amendment by chapter 46, S. L. 1927? It may be accepted as a fact that the Independent Order of Odd Fellows is a great fraternity, which “was founded from a desire for human brotherhood,” and that, as the proof shows, from 1830 to 1924, it spent in the United States and in nine other countries where established over $200,000,000 in the relief of its members and their widowed families, out of a total revenue of about $600,000,000; but the lots on which these taxes were levied were not owned by the Independent Order of Odd Fellows nor by its Sovereign Grand Lodge, but by Dakota Lodge No.' 1. Conse [405] quently, the question of exemption is not determined by whether this great brotherhood is a charitable society within the meaning of section 6670, but by whether the owner of these lots, Dakota Lodge No-. 1, appellant herein, is a charitable society within: such, meaning; nor are we now concerned with the right of Legislature to specifically provide w-hat property of such fraternal lodges may be exempt, nor whether, in enacting chapter 46 of the Session Laws of 1927, the legislative intent was to exempt such property. Indeed, if this decision be limited, as it should be limited, to the facts as presented to the trial court, the question to be decided is whether the finding o-f the trial court that Dakota Lodge No-. 1 was not a charitable society within the meaning of section 6670, was or was not contrary to- the evidence adduced. At the trial, the facts were stipulated, and by stipulation certain exhibits were admitted in- evidence. One exhibit showed the income received by plaintiff from all sources from 1907 to 19-26, inclusive, to be $40, 940.36. Another exhibit admitted by a stipulation to be “a statement showing the amount of money disbursed by plaintiff for charitable purposes each year, from the year 1907 to June 23, 1926, inclusive,” showed that, in a like period, plaintiff disbursed for relief $5,626.98, for home fund $4,340.35, and for Grand Lodge dues $3,455.67, or a total disbursement fo-r these purposes of $i3;423.oo. What was done by plaintiff with the remaining $27,5,17.3,6 -does not appear. By the by-laws of plaintiff corporation, it appears that the funds of the lodge- are to be expended only for its actual, necessary expenses and support, for the payment of benefits to sick and disabled members, for the relief of distressed members of the order or their families, and for the payment of funeral benefits. The by-laws further provide that, upon the decease of a member entitled to benefits, there shall be paid $30 as a funeral benefit, and further provide that weekly benefits for sickness shall be $2 per week for the first 52 weeks and $1 per week thereafter. Presumably the relief disbursed was in-accordance therewith. No evidence was introduced of any charity disbursed to others nor evidence offered to show further the character o-f the individual disbursements listed under the headings of "relief,” "home fund,” and “Grand Lodge dues,” the totals for which have hereinbefore been given. In order to show the objects and purposes of the Independent [406] Order of Odd Fellows, it was stipulated, subject to certain objections by respondent, that a report of the Grand -Representatives of the Sovereign Grand Lodge of the Order was adopted by the Grand Lodge of .South Dakota at its meeting in 1926, which, in part, was as follows: “No guarantee except fellowship, no sick or health insurance. * * * To visit the sick, relieve the distressed, bury the dead and educate the orphan * * * when a guarantee is given to pay weekly sick benefits of a stipulated amount, it becomes a semi business organization and partially removed from the- realm of true brotherhood.” Whether, if the sick visited, the distressed relieved, the dead buried, the orphan educated, be only members of a society and their families, such society may yet be a charitable society within the meaning of section 6670, we do> not decide. In Lutheran Hospital Ass’n v. Baker, 40 S. D. 226, 167 N. W. 148, after a review of many authorities, involving the question of exemption from taxation of hospitals and a review of the evidence in that case, this court said: “The existence in a community of such an institution which admits, cares for, and gives medical aid to the pauper as well as the prince, without private gain to itself, is a public charity in the fullest sense. * * * It relieves the public from maintaining- by taxation such an institution of its own. This is the basic reason for the exemption from taxation of the property of such institutions, when the same is used exclusively for the purposes of charity.” The question in that -case- was whether the evidence showed the property taxed to have been used exclusively for charitable purposes; the question in this case is whether the evidence shows the property taxed to be owned by a charitable society. Appellant contends that, by section 8854, R. C. 1919, the Legislature determined the Independent Ordier of Odd- Fellows to be a charitable society within the meaning of section 6670. Section 8854 provides how “associations for benevolent and charitable purposes * * * )and lodges * * * 0,f * * * Independent Order of Odd Fellows, * * * and other fraternal, 'benevolent or charitable fraternities * * * may become incorporated.” Even though we assume that under the authority of article 2 of section 11 of the State Constitution as now amended, the Legislature has now the right to declare that lodges such as [407] appellant may, by reason of their great and distinctive contributions to society, be exempted from the burden of taxation, and that the amendment to section 6670 by chapter 46, S. L. 1927, was based on the legislative assumption that lodges such as appellant are charitable societies, before a court can say that, between 1907 and 1923, a ’South Dakota corporation was a charitable society within the then meaning of section 6670, evidence suffifciently establishing its charitable character must be adduced. The distinctions drawn between societies held to be charitable under tax exemption statutes, and societies held otherwise, are SO’ fine, the authorities so in conflict, as not to permit, in the “decision of such a question, the assumption of facts necessary to show its- charitable character when such facts have not been proven. An examination of the evidence adduced in this case does not permit this court to say that the findings of the trial court were contrary to- the evidence, or its judgment contrary to the law. This applies equally to taxes for 1907-1918 and for 1922 and 1923. The judgment is affirmed. SHERWOOD, P. J„ and FOLEEY, BURCH and BROWN, JJ-, concur.