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ERROR to the Circuit Court for McDowell County to review a judgment dismissing a petition for a writ of certiorari, and striking from the docket a proceeding to subject defendant's property to taxation. Reversed.

The facts are stated in the opinion of the court.

Mr. John T. Simms, for plaintiff in 69, L.R.A.1915A, 1118, 81 S. E. 69; Re error:

Masonic Temple Soc. 90 W. Va. 441, 22 Where property is used exclusively A.L.R. 892, 111 S. E. 637. for lodge and charitable purposes it is not taxable; but where any part of

Lively, J., delivered the opinion of

the court: property owned by the Masonic lodge or any other fraternal organization is

The crucial question involved in let and used for commercial purposes,

this litigation is whether the real producing substantial rental or in- property of a Masonic lodge, a part come, the whole of the property is sub- of which is rented for commercial ject to taxation, although a portion of purposes and which produces a subthe building is used for lodge purposes stantial income, is subject to taxonly.

ation. Re Masonic Temple Soc. 90 W. Va.

McDowell Lodge, No. 112, A. F. 441, 22 A.L.R. 892, 111 S. E. 637; Mason v. Zimmerman, 81 Kan, 799, 106

& A. M., duly organized and charPac. 1005; State ex rel. Bertel v. Board

tered as a Masonic lodge under the of Assessors, 34 La. Ann. 574; Epis- laws, owns real estate in Welch, Mc

. copal Academy v. Philadelphia, 150 Pa. Dowell county, consisting of a lot 574, 25 Atl. 55; Bangor v. Rising Virtue on which it has erected a four-story Lodge, 73 Me. 428, 40 Am. Rep. 369; building and basement, the third Fitterer v. Crawford, 157 Mo. 51, 50 and fourth stories of which are used L.R.A. 191, 57 S. W. 532; Newport v.

for lodge purposes; the first and secMasonic Temple Asso. 108 Ky. 333, 49

ond floors rented as offices to various L.R.A. 252, 56 S. W. 405; Indianapolis v. Grand Master, 25 Ind. 518; Hiber

persons, and the cellar leased for a nian Benev. Soc. v. Kelly, 28 Or. 173,

printing office; the annual rentals 30 L.R.A. 167, 52 Am. St. Rep. 769, 42

for basement, first and second floors, Pac. 3; Wyman v. St. Louis, 17 Mo. amount to $3,958.90. The rents are 335; Presbyterian Theological Semi- used by the lodge for purposes of its nary v. People, 101 Ill. 578; Washburn

organization, including moneys in College v. Shawnee County, 8 Kan.

excess of $1,000 appropriated by it 344; Cincinnati College v. State, 19

directly to charitable purposes. The Ohio, 110; New Orleans v. St. Patrick's Hall Asso. 28 La. Ann. 512; New

rent received is expended for charOrleans v. St. Anna's Asylum, 31 La.

itable purposes, the maintenance of Ann. 292; Salem Lyceum v. Salem, 154

the building, and to pay off and disMass. 15, 27 N. E. 672; Phillips Exeter charge a debt on the building, inAcademy v. Exeter, 58 N. H. 306, 42 cluding the interest. A sworn stateAm. Rep. 589; Morris v. Lone Star ment found in the record gives the Chapter, 68 Tex. 698, 5 S. W. 519; Ft. income for the Masonic year ending Des Moines Lodge v. Polk County, 56

September 30, 1922, as $10,337.12, Iowa, 34, 8 N. W. 687.

made up of cash balance on hand, Messrs. Strother, Sale, Curd, &

dues and fees collected, rents reTucker, for defendant in error: The whole property assessed is ex

ceived from the building (which empt from taxation.

rents amount to $5,458.90), volunGrand Lodge, A. F. A. M. v. Board tary donations, and miscellaneous of Review, 281 Ill. 480, 117 N. E. 1016;

income. Disbursements include loCurtis v. Androscoggin Lodge, 99 Me. cal charities, interest on the debt 356, 59 Atl. 518; Cumberland Lodge v. ($1,106.30), rent, salaries, supNashville, 127 Tenn. 248, 154 S. W. plies, funerals, grand lodge dues, for 1141; Petersburg v. Petersburg Benev.

Masonic home, janitor, light, heat, Mechanics Asso. 78 Va. 431; Hardin v. Rock Springs Lodge, 23 Wyo. 522, 154

water, repairs, miscellaneous exPac. 323; Henderson v. Strangers Rest

penses for lodge and building, inLodge, 17 Ky. L. Rep. 1041, 17 S. W. surance, taxes, and an amount 215; State v. Kittle, 87 W. Va. 526, 105 ($2,000) paid on debt. The properS. E. 775; Com. v. Richmond, 116 Va. ty was entered on the land books

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(96 W. Va. 611, 123 S. E. 561.) and assessed at $25,000 for the year no appeal is given from his decision 1922, the total taxes amounting to to this court. But where any tri$632.75, which were paid under pro- bunal having jurisdiction passes uptest by the lodge to the sheriff. Sub- on the taxability of the property, sequently, in June, 1923, the lodge judicial review thereof may be had, petitioned the county court for a re- and if the amount involved is in exfund of the taxes paid, claiming cess of $100, this court has jurisdicthat the property was not subject tion to review. Our cases so holding to taxation and was erroneously as- are cited in Humphreys v. County sessed; the county court granted the Ct. 90 W. Va: 315, 110 S. E. 701, prayer of the petition, holding that , beginning with Charleston & S. the property was exempt from tax- Bridge Co. v. Kanawha County Ct. ation, and ordered the sheriff to re- 41 W. Va. 658, 24 S. E. 1002. It fund the $632.75 theretofore paid. would serve no useful purpose to To this decision of the county court make additional citations. Under $ the circuit court awarded a writ of 132a of chap. 29, Code, the county certiorari, on petition of the state, court is given authority to pass upand a hearing was had on October on questions of the nontaxability of 27, 1923, when relief was denied to property, and its decision may be the state, the petition for certiorari reviewed by certiorari from the cirdismissed, and the cause stricken cuit court, and from that court to from the docket. The clerk was or- the supreme court. dered to certify the disposition of We come to the main question. Is the case to the county court. To the property of the McDowell Lodge, this action of the court the state ex- used in the manner above set out, cepted, the proceeding stayed for the subject to taxation? Our recent purpose of obtaining a writ of er- case of Re Masonic Temple Soc. 90 ror, which writ was granted by this W. Va. 441, 22 A.L.R. 892, 111 S. court.

E. 637, holds that lodges of Free and Counsel for the Masonic lodge Accepted Masons are charitable challenges the jurisdiction of this bodies, and their property, when court to entertain this writ of error, used solely for charitable and beclaiming that the action of the coun- nevolent purposes, and not held or ty and circuit courts was purely ad- leased out for profit, is exempt from ministrative, and not judicial. To taxation. We affirm that decision. sustain that contention the cases of Many of the decisions of other Pittsburg. C. & St. L. R. Co. v. states are carefully reviewed by Board of Public Works, 28 W. Va. Judge Miller in the opinion, in 264, McLean v. State, 61 W. Va. which he points out that each deci537, 56 S. E. 884, and Bluefield sion is based upon the particular Waterworks & Improv. Co. v. State, Constitution or laws under which it 63 W. Va. 480, 60 S. E. 403, are is rendered. The divergent holdcited. The question of the taxabil- ings are thus accounted for. And ity of property is quite different so, on the question here presented. from controversies over the valua- We must look to our own Constitution for taxation. The taxability of tion and statutes for a solution of property is jurisdictional, and calls the question before us. The general for judicial determination, whereas policy of this state, accentuated by the fixing of values for taxation is § 1, art. 10, of the Constitution, is merely ministerial. This distinc- that all property shall contribute to tion runs through all of our cases on the expenses of the government. the subject. Wherever the taxpayer Taxes must be equal and uniform, raises a question of valuation which and no species of property can be is decided adversely to him, he may taxed higher than any other species go to the circuit court, and the judge of property of equal value. One aim thereof, in deciding the question, of government is to protect property acts in a ministerial capacity, and rights, insure the possession and en

38 A.L.R.-3.

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joyment thereof by the owners, and held to apply only to the property thus promote domestic tranquillity which is actually used and occupied and the general welfare. The own- for the charitable purposes for ers of property, whether they be in- which the institution is organized. dividuals, corporations, or associa- A few of the cases so holding are tions, should contribute to the ex- People ex rel. Krochersperger v. penses of the protection and stabil- Chicago Theological Seminary, 174 ity of that property. There are ex- Ill. 177, 51 N. E. 198; Brodie v. ceptions to this general policy which Fitzgerald, 57 Ark. 445, 22 S. W. may be made by the legislature, and 29; Indianapolis v. Grand Master, which the Constitution confines to 25 Ind. 518; Ft. Des Moines Lodge property which is used for educa- v. Polk County, 56 Iowa, 34, 8 N. W. tional, scientific, religious, or char- 687; Female Orphan Soc. v. Board itable purposes. These exceptions

These exceptions of Assessors, 109 La. 537, 33 So. are clearly defined by $ 57, chap. 29, 592; Baltimore v. Grand Lodge, A. Code, which provides, among other F. A. M. 60 Md. 280; Ridgeley things, that “all property, real and Lodge v. Redus, 78 Miss. 352, 29 So. personal, used for charitable 163; People ex rel. Young Men's purposes, and not held or leased out

Asso. V. Sayles, 32 App. Div. 197, for profit,” shall be exempt from 53 N. Y. Supp. 67; Hibernian Benev. taxation. The theory justifying ex- Soc. v. Kelly, 28 Or. 173, 30 L.R.A. emption of this class of property so 167, 52 Am. St. Rep. 769, 42 Pac. used is that the resultant benefits to 3; Episcopal Academy v. Philadelthe body politic will be equal to or phia, 150 Pa. 565, 25 Atl. 55; Amerin excess of the taxes which would ican Sunday School Union v. Philaotherwise be imposed, and such re- delphia (American Sunday School ligious, scientific, literary, or char- Union v. Taylor) 161 Pa. 307, 23 itable use of the property should be L.R.A. 695, 29 Atl. 26; State ex rel. encouraged by relief from taxation. Hayes v. Board of Equalization, 16 But the statute says it shall only be S. D. 219, 92 N. W. 16; Morris v. exempt when the property is used Lone Star Chapter, 68 Tex. 698, 5 for these purposes, and not held or S. W. 519; Parker v. Quinn, 23 leased out for profit. It is a rule Utah, 332, 64 Pac. 961; Humphries so well established as to need no v. Little Sisters of the Poor, 29 Ohio citation of authority, that it is in- St. 201. Cases which hold to the cumbent upon the person who claims contrary are Henderson v. Strangers his property as exempt from tax- Rest Lodge, 17 Ky. L. Rep. 1041, ation to show that the use of that 17 S. W. 215 (but see Newport v. property clearly falls within the ex- Masonic Temple Asso. 108 Ky. 333. ception. The rule of strict con- 29 L.R.A. 252, 56 S. W. 405); Coopstruction applies, and, if any doubt er Hospital v. Burdsall, 63 N. J. L. arises as to the exemption, that 85, 42 Atl. 853; Book Agents v. Hindoubt must be decided against the ton, 92 Tenn. 188, 19 L.R.A. 289, person who claims the exemption. 21 S. W. 321; Cumberland Lodge v. While it must be borne in mind that Nashville, 127 Tenn. 248, 154 S. W. the decisions of other jurisdictions 1141; Staunton v. Mary Baldwin are largely influenced by their con- Seminary, 99 Va. 653, 39 S. E. 596; stitutional and statutory provisions, Petersburg v. Petersburg Benev. it is quite generally held that where Mechanics Asso. 78 Va. 433. Space property belonging to a charitable does not allow a comparison of these institution is rented out or other- cases, and the organic and statute wise employed as a source of profit law under which they were rento the institution, it is not sufficient dered. The inquiring mind may do to save that property from taxation so. It is sufficient to say that the because the rent or income is devot- great weight of authority appears ed exclusively to charitable pur- to be that, because the rents, issues, poses; the exemption is generally and profits of the property of a

(96 W. Va. 611, 123 S. E. 561.) charitable institution are used for home." A reasonable and practicathe purposes of charity, that fact ble meaning must be given to the will not exempt the property itself phrase. Our case of State v. Kittle, from taxation, under the rule of 87 W. Va. 526, 105 S. E. 775, is restrict construction applicable where lied upon to sustain the contention property is claimed to be exempt of the lodge. A lot of land on which

. under the exceptions to the general was erected a parsonage had been rule that all property must bear its omitted from the land books and not equal burdens of taxation. The assessed for taxation, and the lower Iowa statute under consideration in court held that it had been forfeited Ft. Des Moines Lodge v. Polk Coun- for nonentry, basing its holding apty, 56 Iowa, 34, 8 N. W. 687, ex- parently upon the theory that the empted property devoted to reli- statute which exempted "parsonages gious, literary, charitable, etc., uses, and the household goods and fur"and not leased or otherwise used niture pertaining thereto" was unwith a view of pecuniary profit.” constitutional. The building had The court said it was immaterial to been occupied by the resident minwhat purpose the income from ister for some time, but not being leased property was devoted. The convenient for his use, or for some property was exempt only when not other reason, the trustees had rented leased or used for profit, under the the building to others, the proceeds very terms of the statute. The Mis- being devoted to extinguishment of sissippi statute exempted property a debt on the building. This court of a charitable institution used ex

reversed the lower court, holding clusively for that purpose, and not that parsonages were in terms exfor profit. In Ridgeley Lodge v.

empted from taxation by the statute, Redus, 78 Miss. 352, 29 So. 163, the

and the statute was not in contra

vention of the Constitution, pracsame contention was made as is asserted in the instant case; namely,

tically construed by contempora

neous legislation and long acquiesthat, the rents of the first floor of

cence. The statute in terms exempts the Odd Fellows building being used

parsonages, and their status does for charity, that was, in effect, the

not depend upon their use, so long use of the property for charity.

as their use is devoted to church The court said that contention was

purposes.

As regards parsonages, against the letter and spirit of the

the qualification that they shall not law.

be held or leased out for profit is Our statute says property used

not appended as in the case of the for charitable purposes, and not

property of charitable or benevolent held or leased out for profit, shall be institutions. That case is easily disexempt. The property in question is tinguishable from this case. not used wholly for charitable pur

The use of the property of the Mcposes. The character of use of the Dowell Lodge determines its status property itself determines its ex

as taxable property, emption from taxation, and not the

Taxes-property

and not the use for of Masonic proceeds from its use. The clause,

which the proceeds lodge. "not held or leased out for profit,' are expended when it is held or is significant. It is difficult to see leased out for profit. The property, how the property of charitable and having been leased out for combenevolent associations could be mercial purposes and for profit, as rented except for profit to the as- shown by the agreed facts, is not sociation. If rented for profit to its exempt from taxation under the members, and not for purposes of statute. the association, it would be difficult The judgment of the Circuit to place such association in the class Court and the order of the County of charitable institutions, unless it Court will be reversed, and the could be justified under the familiar prayer of the petition for refund of saying that "charity begins at taxes paid, refused.

ANNOTATION.

Exemption from taxation of property of fraternal or relief association.

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The present annotation discussing temptations of a large city, and, being the exemption from taxation of prop- strangers, they are set upon by booterty of a fraternal or relief association leggers, prostitutes, street walkers, , is supplemental to an earlier annota- gamblers, and degenerates. There is tion on the same topic in 22 A.L.R. 907. little escape for the men, because they

The following recent cases support have no place to go; at least, they the view that property of a fraternal have had none until the setting up of or relief association, used or occupied the National Navy Club. They are by it, is exempt from taxation: Na- not welcome in hotels, and they tional Navy Club New York (1923) haven't enough money, as a matter of 122 Misc. 89, 203 N. Y. Supp. 114 fact, to go to the better places of en(naval relief association); Re Dakota tertainment, and as soon as the small Wesleyan University (1925) - S. D. amount of money which they have is

202 N. W. 284 (dictum). And see gone, they are entirely adrift. the reported case (STATE V. MCDOWELL There is no question that the boys LODGE, ante, 31) (Masons).

who come from this club come back in Thus, in National Navy Club v. New good condition and are free from the York (N. Y.) supra, it was held that a effects that we notice in boys who clubhouse operated entirely for the have spent the night along Broadway relief of enlisted men of the United or drifting along the streets." States Navy was exempt from taxa- In a recent case the South Dakota tion as within the New York statute court said: “Under our present Conproviding that "the real property of a stitution and existing statute all propcorporation or association organized erty that is owned by religious, eduexclusively for the moral or mental cational charitable, or benevolent

, improvement of men or women, or for societies, regardless of its character, charitable, benevolent,

extent, location, or the purposes for or ... patriotic

purposes, which it is used, and all property, reor for two or more such purposes, and gardless of its character or extent, used exclusively for carrying out that is used exclusively for charitable, thereupon one or more of such pur- benevolent, religious, or educational poses,

shall be exempt from purposes, is exempt from taxation." taxation." It appeared in that case Re Dakota Wesleyan University (1925) that the plaintiff corporation owned - S. D. —, 202 N. W. 284. and operated a clubhouse in New In the following recent cases it is York city for the purpose of providing held that property of a fraternal or entertainment and respectable sleep- relief association, used or occupied ing quarters for enlisted men in active by it, is not exempt from taxation: service in the United States Navy and Benevolent Asso.

Wintersmith Marine Corps at less than cost, by (1924) 204 Ky. 20, 263 S. W. 670 means of endowments and contribu- (Elks); People ex rel. Olean Masonic tions. The nature of the relief af- Corp. v. Breder (1923) 121 Misc. 553, forded was outlined by one of the wit- 201 N. Y. Supp. 291 (Masons) ; Berger nesses for plaintiff, who testified as v. University of New Mexico (1923) follows: “The great number of our 28 N. M. 666, 217 Pac. 245 (dictum). enlisted men come from the interior; In Benevolent Asso. v. Wintersmith they are all young boys, the average (Ky.) supra, the court held that the age being about twenty-one or twenty- Kentucky statute which exempted two, and the minimum age eighteen. from taxation an institution purely in When these boys are granted liberty the nature of a public charity did not they have no homes; they go ashore in permit the exemption of a clubhouse this city, and are subject to all the of the Benevolent Association of Elks,

v.

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