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built the house, and that prior to the execu-, V., Texas B. & L. Ass'n, 8 Tex. Civ. App. 500, tion of the instruments mentioned he had an 29 S. W. 51, writ denied as to attorney's agreement with Franklin with reference to fees); but it is not necessary for us to decide the matter, and all of the terms of the con- that question, and we do not express any tract were agreed upon between him and opinion with reference thereto. Franklin, how the notes should be handled, as the indebtedness to Franklin is concerned, and how the material should be furnished evidenced by the 26 notes, no valid lien exists and paid for; that Franklin was not able to against the property, since that debt has buy the lumber and material to build the been paid in full. In Colleps v. Lumber Co., house; that Herring furnished the lot, and 185 S. W. 1043, it is said: the Barber Lumber & Mill Company furnish- "There is only one way known to the law ed all the material and paid the contractor ; by which one who furnishes material or labor that the contractor's pay roll was paid each homestead, to fix and secure a lien upon the

for the erection of, or labor made upon, the week; that the contractor did the work on same," that is, by complying with article 5631, the building for a specified amount, and when supra. his work was finished the Barber Lumber & It has been held that an express agreeMill Company paid him the balance, after ment in a mechanic's contract that he shall having paid all his labor while the work pro- have a lien upon the homestead as provided gressed; that no lumber or material was by law will not create a lien until the refurnished before the papers were executed, quirements of the statute have been complied and no money was furnished before the mate with. Cameron v. Marshall, 65 Tex. 7; B. rial and lumber were furnished.

& L. Ass'n v. Logan, 33 S. W. 1088. In the If the appellees are entitled to judgment of absence of such contract, those who furnish foreclosure of their alleged lien it must be on labor or material to the contractor have no the theory that they complied with the terms lien of any character. Colleps v. Lumber of article 5631, Vernon's Sayles' Tex. Civ. Co., supra, and cases there cited. See, also, Stats., which provides in part:

Ellerman v. Wurz, 14 S. W. 333, in which the “When material is furnished, labor performed, Supreme Court says: erections or repairs made upon a homestead, if

"To obtain and fix the material or mechanic's the owner thereof is a married man, then to fix lien authorized by these provisions, the preand secure the lien upon the same, it shall be scribed requirements must be strictly followed necessary for the person or persons who fur

and complied with." nished the material or performed the labor, before such material is furnished or labor is per

A deed of trust on the homestead, which formed, to make and enter into a contract in writing, setting forth the terms thereof, which does not show the contract, or the considerashall be signed by the owner and his wife, and tion, although duly executed by both husprivily acknowledged by her, as is required in band and wife, does not create a lien on the making sale of a homestead.'

homestead under the statute or under the The Constitution of the state of Texas Constitution. Walker v. Woody, 40 Tex, Civ. (article 16, $ 50) provides in part:

App. 346, 89 S. W. 789, writ of error denied. "No mortgage, trust deed, or other lien on the “No lien can be fixed, and no foreclosure homestead shall ever be valid, except for the had, upon the homestead by an implied writpurchase money therefor, or improvements made thereon, as hereinbefore provided, whether such ten contract or by an express oral contract.” mortgage, or trust deed, or other lien, shall have West End Town Co. v. Griggs et ux., 54 S. been created by the husband alone, or together / W. 904. While the decision of the Court of with his wife."

Civil Appeals in this case was reversed by [1-6] It will be noted that in the contract the Supreme Court in 93 Tex. 451, 56 S. W. 49, between the Herrings and Franklin, the Her- yet the reversal did not affect the soundness rings bound themselves to pay the contractor of the announcement by the Court of Civil “$1,200 in cash, and the balance in twenty- Appeals quoted above. A deed of trust on a six monthly installments,” etc. Whether this homestead to secure the payment of a note $1,200 was the estimated profit of Franklin is invalid, there being no contract in writing under the contract, and the $1,049 evidenced for work and material, even though the by the 26 installment notes was intended money secured on the note was afterwards to cover the material and labor items, we are used for the purpose of improving the homeleft in doubt, except so far as light may be stead. Girardeau v. Perkins et al., 59 Tex. shed through the testimony of Barber, but Civ. App. 552, 126 S. W. 633, writ denied. the two $600 notes were not executed to There can be no lien acquired under this Franklin, neither did he have a lien to se- statute upon a homestead by a materialman cure the payment of the same. According who furnished the material, not to the ownto Barber's testimony, Franklin did not ers of the property, but to the builder who furnish the material or pay for the labor has contracted with the owners, unless such expended on the erection of the building. It materialman has complied with the provimight be a question whether under article sions of the article. Gilmer v. Wells, 17 5631 a lien could be fixed on a homestead Tex. Civ. App. 436, 43 S. W. 1058, 1060, writ to secure the payment of a contractor's prof- denied. Appellees cannot claim a lien by it on the contract (see Summerville v. King, virtue of a contract between the Herrings 98 Tex. 332-341, 83 S. W. 680; B. & L. Ass'n and Franklin, for under this contract Frank

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which no lien was retained by him, and $1,- existence after the improvements were made. 049 in notes, all of which has been paid. The * * * The power of a husband and wife, in reference in this contract to the two $600 give lien on homestead, by express contract, to

the manner prescribed by the Constitution, to notes does not disclose that said notes were secure payment of indebtedness incurred for given for material or labor. to be expended, work or material used in constructing improvenor does the evidence show how much, if ments on the homestead, is made clear by the any, of the $1,200 was so expended on the trust deeds, 'which can exist only through con

, homestead. Moreover, the notes were not tract. * The contract husband and wife given to Franklin, and therefore Franklin must make before lien for work or material used would not be entitled to a lien to secure the in improving their homestead can exist under

the statute need not state that it is the intent same. Under the deed of trust given for the to give lien to the contractor, and such a benefit of the lumber company no contract is statement might not defeat the right of a conset out by the terms of which it is shown tractor to fix and secure the statutory lien; that the debt therein attempted to be se- the parties

evidences intention thereby to give cured is for improvements on the homestead. lien, then lien exists by force of the contract, It cannot be held that a mere reference to and may be enforced under the rules applicable the contract between Franklin and the Her- to such liens. * * * A contract made under rings in the deed of trust given by the Barber such circumstances ought to be sustained, unless

to Lumber & Mill Company created a lien in lic policy. There was no law in force expressly favor of the company against the homestead. prohibiting such a contract." We are of the opinion that the court erred

By reference to the first question containin adjudging that the appellee herein had a ed in the certificate, it will be seen that the valid lien upon the premises involved, and in contractor who erected the improvements granting the foreclosure. The judgment of

complied with the requirements of the law as the trial court is reversed, and the judgment to the fixing of the mechanic's lien, and that here rendered for appellant.

said contractor, while said mechanic's lien Reversed and rendered.

was in force, assigned the debt, together with

the lien, to a third person, to whom the husOn Rehearing.

band and wife executed a deed of trust upon It is urged that the case of Lippencott v. the homestead, which was privily acknowlYork, 86 Tex. 276, 24 S. W. 275, is an authori- edged by the wife, and that the husband and ty for the proposition that a husband and wife executed to the assignee certain notes, wife may by contract fix a lien on the home- and that such assignee agreed with the husstead for labor performed thereon and mate- band and wife to extend the original debt and rial furnished, independently of any statutory lien for a period of years. The question proprovision. We do not so understand such de- pounded was, Did such deed of trust consticision. By reference to the questions certi- tute a valid lien upon the homestead? In fied, especially to questions 2, 3, 4, and 5, it this case the mechanic's lien was fixed on the will be noted that the Supreme Court made a homestead, and the only question involved distinction between liens created by law un- was as to whether under the contract described der article 16, $ 37, of the state Constitution, between the husband and wife and the assuch as mechanic's liens, materialman's liens, signee the extension of the debt and lien etc., and liens created by contract. After would invalidate the lien against the homequoting article 16, 8 50, of the Constitution, stead. To the question propounded the Suthe court said:

preme Court answered in the affirmative. "This section of the Constitution, while it Under the statute as it then existed the meoperates as a restriction on the power of a chanic's lien given the contractor by law husband and wife to impose charges upon the would have ceased to be operative if suit had homestead, recognizes their power to do this by mortgage, trust deed, or other lien to secure not been brought to enforce it within 12 payment for work or labor used in constructing months after it was fixed, although the debt improvements upon it; and in the absence of secured by it was still valid and might be enlegislation declaring the only mode in which this forced through a personal judgment. See may be done, no good reason is perceived why Acts of 20th Legislature, p. 114, $ 17, of said tracted as a debt must be to bind the homestead act. In regard to the liens created by law, for labor or material used in improving it." irrespective of contract, it was held that it

After quoting article 16, $ 37, of the Con- was necessary to enforce them in the time stitution, and discussing the same, the court and in the manner required by the statute; further said:

while, on the other hand, it was held that the "Liens by contract take effect from time of husband and wife might, by an express conexecution, and have no retroactive effect as to tract complying with the requirements of the third persons.

Mechanics' and like liens, when | Constitution, extend the lien so fixed by the fixed and secured, as to the improvements made, will be given priority over a mortgage or like contractor, and that it might be enforced in lien existing on the land at the time the facts the time and manner specified by the conoccur which give right to such lien ; while atract. We think this is the full extent of the lien created by contract solely will attach to holding in the cited case. The statute, as it improvements subsequently made on the land covered by the lien, and will not give way to was then and as it is now, and the Constitua junior lien of the same character coming into tion require that in order to fix a lien upon the homestead for work and material' used County. From judgment for plaintiff, dethereon the contract shall be in writing, and fendants appeal. Affirmed. executed by the wife in the manner and form

203 S.W.-10

McLean, Scott & McLean and W. P. Walkrequired in making a sale and conveyance of er, all of Ft. Worth, for appellants. Capps, a homestead. The statute then required, as Cantey, Hanger & Short, of Ft. Worth, for it does now, that such' writing executed by appellee. the 'wife must contain the terms of the conYract.

BUCK, J. [1, 2] This is an injunction The appellees' counsel urges that it would suit against the tax collector and other nambe unjust, even unconscionable, to deny appel- ed officers of Tarrant county to restrain lees a recovery in this case, since it is insisted them from enforcing the collection of the the facts show that appellees furnished all taxes assessed against the real estate and the material, paid for all the labor going into personal property of All Saints Hospital, althe improvements, and that it is admitted leged to be an institution of "purely public that the Herrings only paid $1,049, with in- charity," and therefore exempt from taxaterest thereon, leaving unpaid on the contract tion under the statutes and the Constitution price the amount of $1,200, represented by of the state. Plaintiff having abandoned its these two $600 notes. But the Constitution prayer for injunctive relief as against the coland the statute require certain things to be lection of the taxes on its personal property, done and certain steps to be taken before a and having offered to pay the same, and the lien can be fixed on a homestead owned by a court having entered judgment against it married man. The directions are plainly giv- as to the taxes on its personal property for en so that he who advances his money, fur- the years 1915 and 1916, and having granted nishes his material, or expends his labor may the injunction only as to the taxes on the be protected. If he fails to follow the direc- real estate and the improvements thereon tions, he must bear the consequences. The for said years, the one question presented by courts are powerless to help him. It is not this appeal is: Do the facts show this apa question of equity so much as it is a ques- pellee to be such an institution as under section of compliance vel non with the constitu- tion 6, art. 7507, Vernon's Sayles' Tex. Civ. tional and statutory requirements.

Stats., is exempt from taxation, and as furMotion for rehearing is overruled.

ther authorized under section 2, art. 8, of the Constitution of Texas? Article 7507, § 6, reads as follows:

"All buildings belonging to institutions of SCOTT et al. v. ALL SAINTS HOSPITAL. purely public charity, together with the lands (No. 8829.)

belonging to and occupied by such institutions (Court of Civil Appeals of Texas. Ft. Worth. profits, unless such rents and profits and all

not leased or otherwise used with a view to March 30, 1918. Rehearing Denied

moneys and credits are appropriated by such April 27, 1918.)

institutions solely to sustain such institutions 1. TAXATION 241(2) - EXEMPTIONS-STAT- and for the benefit of the sick and disabled UTE-"PURELY PUBLIC CHARITY."

members and their families and the burial of A hospital organized by some members of the same, or for the maintenance of persons a church parish, having the general purpose when unable to provide for themselves, whether to provide for and nurse sick and destitute such persons are members of such institutions persons, to which all persons in need of treat- or not. An institution of purely public charity ment were freely admitted whether they could under this act is one which dispenses its aid pay or not, though such as were able to pay to its members and others in sickness or diswere expected to do so, as the hospital had no tress, or at death, without regard to poverty source of revenue other than such fees and do- or riches of the recipient, also when the funds. nations to it, was a "purely public charity” property and assets of such institutions are whose lạnd and buildings were exempt from placed and bound by its laws to relieve, aid and taxation under Vernon's Sayles' Ann. Civ. St. administer in any way to the relief of its mem1914, art. 7507. $ 6, and Const, art. 8, 8 2.

bers when in want, sickness and distress, and [Ed. Note.-For other definitions, see Words provides homes for its helpless and dependent and Phrases, First and Second Series, Purely members and to educate and maintain the orPublic Charity.]

phans of its deceased members or other per

sons." 2. TAXATION 251-CHARITIES-PURPOSE OF CHARGE-SUFFICIENCY OF EVIDENCE.

Without undertaking to set out any conIn suit by a charitable hospital against the siderable portion of the testimony in the extax collector and other officers of the county to act words of the witnesses, we think the evirestrain them from enforcing the collection of dence adduced establishes the following state taxes, evidence held not to show that the charge made by the hospital against patients financially of facts: The institution had its origin in able to pay was made with a view to profit, but the minds and hearts of some 15 charitably rather that it was made to carry out the domi- inclined ladies, members of Trinity parish, nant purpose and general beneficent design of Ft. Worth, Tex. the founders of the hospital.

They felt the need in the

city of a hospital where the sick among the Appeal from District Court, Tarrant Coun- poor could receive careful nursing and skillty; Bruce Young, Judge.

ed medical treatment, such as would not be Action by the All Saints Hospital against available to such indigent persons in an inMarvin Scott and others, officers of Tarrant) stitution run for profit. These ladies as

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eral years.

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sessed themselves 50 cents a month, and aug- Therein it further provides: mented this sum by going among the citi- "The board of pay patients, per week shall zenship of the city and receiving small con- be fixed by the officers, and it shall be the duty tributions. Finally they bought a piece of of the superintendent to collect from patients

one week's board each week in advance, and property, 100x100, on Magnolia avenue, for pay the same to the treasurer, excepting only $400, to pay which purchase price took sev- in cases of charity patients.”

In 1900 a charter was secured, Mrs. Bevans, president of the board of and the first building was started. The trustees, testified in part as follows: brick masons working on it donated a part "The money which was required to complete of their time, and from the Thurber Brick the building was raised through subscriptions Company the ladies secured a donation of and by taxing ourselves so much, probably $25

and by having teas and giving balls and tag days brick; the hauling and the freight thereon a year. We were all poor, and did not have being paid for by the recipients. The outside much goods. * * Not a nickel that was walls were finally erected, and thus the put into this proposition was expended with

the idea of receiving any return on it. There building stood for years, awaiting the re- has never been any stock issued, and such a sponse to the charitably inclined for funds thing as stock certificates has never entered our necessary to complete the building. Then all character of surgical work, and it has rooms

minds. * * The hospital is equipped for the first floor was finished, and the first in- for the patients and operating rooms; there mate, a charity patient, was installed. Sub- is an operating room donated by Capt. Burnett, scriptions and donations came, not only from which is said to be as fine as there is in the

Southwest. There are 31 rooms in the hospital. the citizenship of Ft. Worth, but from other There are a corps of nurses connected with portions of the state, and the buildings were the hospital; we have nurses in training, who completed and equipped. One wealthy and medicine and other things necessary for the

also have to be paid. The hospital also provides charitable donor fitted up an operating room. treatment of the sick, for which the hospital No one connected with the management re- has to pay. The only way the hospital has of ceives any revenue or profit from the con- charity work at all is by fees paid by persons

securing any revenue to enable it to do any duct of the institution, except the matron, who are able to pay for services which they nurses, and other paid employés. The char- receive there.

The char- receive there. The hospital has not a cent of ter states the purposes for which the corpora- permanent endowment, depending entirely upon tion was organized in the following lan- fees, charges, or voluntary contributions which guage:

"In the operation of the hospital we take all

poor, indigent, and helpless patients that we “The purpose for which this corporation is possibly can, and give them every attention, just the erection and maintenance of a charity hos- the same attention as if they paid $45 a week pital for the care of the poor and destitute, for a room, which is our best room; there is no sick, and afflicted. Its general purpose shall distinction whatever. If a person is injured or be to provide for and nurse sick and destitute sick in such way as that he could be admitted persons, and such patients as may choose to to any hospital, such a person is not rejected apply for admission under the rules and by- under any circumstances, he is always acceptlaws to be adopted by the trustees. Its plan ed; we make room for him some way. If it is of organization shall be to organize a hospital a real case that has to come, our superintendent for the purposes aforesaid, as the best interests has been wonderful in making room for such of society may require, and to provide there- cases; we have always taken nearly every one for such management as may be necessary to that has tried to get in. If a person is brought carry out its general purposes as a church to the hospital who is able to pay for the servcharity, provided always that such religious in- ices rendered to him, the pay will be accepted; struction and public worship as the trustees if they do not pay, we just have to do without may prescribe therefor shall conform to the it; we do not force any one. There is no disdoctrine of the Protestant Episcopal Church in tinction made in the manner of treatment bethe United States."

tween those who pay and those who do not pay.

"With the exception of the people who work The by-laws provide that the attending money from the institution, except this last

in the hospital, there is no one who draws any physician and surgeon on duty shall have month our secretary has had a great deal of charge of the charity patients, and shall vis- expense; we gave her $20, to buy stamps and it the hospital daily, and oftener if neces- received. There is not a cent in any shape or

such things, and that is the first she has ever sary. As to admission of patients it further form that goes to the trustees or any one like provides that:

that in the way of remuneration.

"Of course, the hospital really does not pay its Pay patients, or boarders, shall be admitted expenses, but if it did, and there was anything to the hospital on rates to be established by the left, it would be used to pay off the mortgage. officers and upon agreement with them, upon After the mortgage is paid up, anything that is the application of any medical practitioner of taken in by the hospital over and above its any school of medicine and of reputable char- expenses will be used to enable us to do more acter, upon the approval of such application charity; we would enlarge the place so as to by any members of the medical board or any be able to do more of that kind of work; that of their appointees, or by a majority of the is our intention and our ambition; I don't know board of trustees, subject always to the capacity that it will be fulfilled, but that is what we are of the hospital and to the provisions of the looking forward to. by-laws.

“We have rooms in the hospital at different "Charity patients shall be admitted to the prices, ranging from $15 to $45 per week, and hospital only to the capacity of the hospital wards ranging from $6 to 10 per week. These and association to care for same. Furthermore, prices are paid by patients in the hospital who provided that charity patients shall be admitted are able to pay them. We have one room and without reference to the religious sector de three beds that are set aside and devoted exnomination to which they may belong."

clusively to charity patients, but we also devote

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other rooms to charity patients, when there! “A gift to a general public use,' which exis occasion to do so. All of the other rooms in tends, or doubtless may do so, either to the rich the hospital except this one room I speak of or the poor." are subject to be rented to pay patients when

5 R. C. L. p. 293, says: they are not already occupied.

"If a patient comes to the hospital and wants "A gift is a 'public' charity when there is a to be treated and is received into the hospital, benefit to be conferred on the public at large, he is expected to pay, if he can. We some

or some portion thereof, as upon an indefinite times make inquiry beforehand as to their abil. class of persons. Even if its benefits are conity to pay, but when a man is very sick, you fined to specific classes, as decrepit seamen, lacannot make an inquiry. The patients are borers, farmers, etc., of a particular town, it usually brought there by some doctor, but oth is well settled that it is a public charity. The ers make application in person. * * *

essential elements of a public charity are that "It is not a fact that every patient is ex- it is not confined to privileged individuals, but pected to pay who does not come as charity is open to the indefinite public. Without underpatient and represent that he is not able to taking to be technically accurate, a 'purely pubpay. If you come out there to the hospital and lic' charity may be defined as one which diswe know your circumstances and know that you charges, in whole or in part, a duty which are able to pay, we would expect you to pay. the commonwealth owes to its indigent and helpNot all the time would we expect a person to less citizens. Undoubtedly it is the duty of the pay who just came there and got a room, with státe to educate its children, and thus fit them out stating at the time that they were unable to for discharging the duties of citizenship, to pay and would be a charity patient; in most care for the indigent insane, its helpless orcases such patient would be expected to pay; phans, and its poor who are sick and afficted; otherwise we could not run the hospital at all; and therefore any institution which, serving no we could not run the hospital a day or an hour, selfish intent, discharges, in whole or in part, if it was just purely a charity hospital.” any, such duty, is a purely public charity.” Mrs. D. I. Brown, superintendent, testified of Law (20 Ed.) p. 895; Gerke v. Purcell, 25

See 11 C. J. § 1, p. 299; 5 Am. & Eng. Enc.

2d in part as follows:

Ohio St. 229, 243; Dayton v. Speers Hospi"All Saints Hospital is a public charity in this way, that regardless of who it is, or what tal, 165 Ky. 56, 176 S. W. 361, L. R. A. 1917B, their condition is, except, of course, we do not 779, Ann. Cas. 1917B, 275. take contagious diseases, such as smallpox or A "purely public charity” is a charity "free scarlet fever, they would be admitted. We from mixture of combination ; have no contagious ward, and a patient with a charity must be unalloyed with other purposes contagious disease would not be admitted; oth- and objects." Watterson v. Halliday, 77 Ohio erwise there is no patient turned away; they St. 150, 82 N. E. 962, 968, 11 Ann. Cas. 1096.

; are all admitted, and they are cared for in the same way as pay patients. Many times patients

In Widows' & Orphans' Home v. Commoncome in and do not specify their circumstances wealth, 126 Ky. 386, 103 S. W. 354, 31. Ky. as they really should, either through pride or Law Rep. 775, 16 L. R. A. (N. S.) 829, cited

, whatever it is;, they state that they are, ex with approval in Green's Adm’rs v. Trust Co., pecting to get the money from home or from somewhere else, or they are going to sell some 134 Ky. 311, 120 S. W. 283, 20 Ann. Cas. 861, property or in some other manner secure the it is said: money to pay, but when they leave they may “The [constitutional] convention meant by tho have quite a bill which they are not able to pay, word 'purely' to describe the quality of the and we have that obligation to carry. Some charity, rather than the means by which it is times a patient comes in and cannot pay the full administered, that it should be wholly altruisamount that he would ordinarily pay or that tic in the end to be attained, and that no private would ordinarily be charged for the services he or selfish interest should be fostered under the receives, and in that case he pays what he can guise of charity, but it was never meant that, and we accept that amount. At other times a because a charity was limited by its terms to patient will come in purely on the foundation objects belonging to a certain sect, or fraternal of charity and such patients make no payments order, or color, or class, it was a private, and whatever. We take all the patients who are not a public, charity.” pay patients that apply for admission to the hospital, regardless of what doctor sends them Other decisions interpret the word "purethere; and the same is true of patients who ly" as intensifying or limiting the word cannot pay; we take all of them, regardless "public" rather than the word "charity.” of what doctor sends them there, and sometimes, you know, they just come there sick and want Philadelphia v. Masonic Home, 160 Pa. 572. admission. I have never known a patient be- 28 Atl. 954, 23 L, R. A. 545, 40 Am. St. Rep. ing refused admission who was indigent and 736; Newport v. Masonic Temple, 108 Ky. helpless; there has never been one refused ad- 333, 56 s. w. 405, 49 L. R. A. 252. But, mission since I have been there, and when they 333, 56 S. W. 405, 49 L. R. A. 252. are admitted, they get the same treatment as take either construction or interpretation, we the other patients on that floor. They are at think this institution as operated is a “puretended to by a nurse just the same as any other ly public charity.” It is open to the public, patient on the floor. If they are in condition so that they can be left alone, they simply ring to the limit of its capacity, without referthe bell if they want anything, and a nurse goes ence to creed, occupation, or denominational to them; if they are not in condition to be left affiliation. In the Ohio case of Gerke v. alone, a' nurse is furnished to stay right there Purcell, supra, it is said: with them."

“When the charity is public, the exclusion of We think enough evidence has been quoted in effect, to the force of [the word] 'purely' as

all idea of private gain or profit is equivalent, to sustain the conclusion reached by the applied to public charity in the Constitution.” trial court that All Saints Hospital comes Since the Texas Legislature adopted our within the provision of the exemption stat- statute from the law of Ohio, it must be ute cited. A charity is defined in Paschal presumed to have adopted the construction

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