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(116 Kan. 175, 225 Pac. 1029.)

passing to be exempt from taxation; and except property to or for the use of the state, a county or a municipality for public purposes, shall be taxed as herein provided."

The particular question involved here has not been decided by this court. However, a somewhat similar question was considered in the case of State ex rel. Taggart v. Holcomb, 85 Kan. 178, 50 L.R.A. (N.S.) 243, 116 Pac. 251, Ann. Cas. 1912D, 800. It was there held that the exemption from taxation of all property used exclusively for municipal purposes meant only the property of Kansas municipalities. This decision was sustained by the Supreme Court of the United States. 226 U. S. 599, 57 L. ed. 375, 33 Sup. Ct. Rep. 112.

A majority of the states that have adjudicated the question adhere to the view that tax exemptions to charitable or educational institutions are confined to domestic corporations. Blakemore, Inheritance Taxes, § 257; Gleason & O. Inheritance Taxn. (2d ed.) 233.

In 37 Cyc. 1573, it is said: "A bequest to a foreign corporation is not exempt from payment of the legacy tax, although such corporation, by reason of its character as a charitable, religious, or educational institution, is exempt from taxation in the state of its domicil, or although domestic corporations of the same class are exempt; and it is immaterial that such corporation has been empowered by law to take and hold property in the taxing state, or that the fund provided in the bequest is to be used within the taxing state.

In 26 R. C. L. 226, 227, it is said: "The character of legacies which are exempt depends in each case on the phrasing of the statute, but there are a few general principies which may be laid down. Thus, it is agreed that the grant of an exemption will be construed strictly against one claiming the benefit of it. An exemption of gifts to literary, educational, and charitable corporations will apply only to corpora

tions established by the laws of the state imposing the tax, and will not apply to a foreign corporation, even if it carries on some of its work within the state."

In Re Prime, 136 N. Y. 347, 18 L.R.A. 713, 32 N. E. 1091, it was held that the exemption of any religious, educational, or charitable corporation or corporation organized for other than business purposes, from the collateral inheritance tax by chapter 553 of the Laws of 1890, extends only to domestic corporations. In the opinion it was said (136 N. Y. 362): "The argument that gifts for the promotion of charity, education, and religion should be encouraged, and should not be diminished by exactions of the state, presents a moral and political rather than a judicial question. It is the duty of courts in the interpretation of statutes to declare the law as it is, and the interests of society are best subserved by a close adherence by courts to what they find to be their plain meaning, neither narrowing the application on the one hand, nor extending the meaning on the other, to meet cases not specified, which may seem to be within the reason of the law."

In Re Quirk, 257 Mo. 422, 51 L.R.A. (N.S.) 817, 165 S. W. 1062, it was held that an exemption of property conveyed for some educational, charitable, or religious purpose exclusively, in a statute imposing an inheritance tax upon property in the state which shall pass by will or the intestate laws, does not extend to property conveyed to charitable institutions located in other states.

Ross on Inheritance Taxation, § 146, was quoted in the opinion as follows (page 434): "It has been contended that the exemption of charitable institutions from inheritance taxation applies to such institutions, regardless of their location within or without the state granting the exemption, for, it is argued, the exemption is in recognition of the beneficent purpose of these institutions, and inasmuch as

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the purpose is common to them all, wherever located, the exemption should be universal. But the courts have not yielded to this argument. They have held, with unanimity, it is believed, that in the absence of any language plainly indicative of a different intent, the legislature must be deemed to have made the exception for the benefit of its own. institutions only, and that foreign corporations, or institutions without the state, must pay the inheritance tax, although exempt in the state of their domicil, and although some of their charitable work and enterprise are carried on within the state enforcing payment of the tax."

In State v. Holcomb, supra, it was said: "Provisions giving immunity. from taxation are to be strictly construed, and anyone claiming that he should escape his share of the public burden must show a clear and express constitutional or statutory exemption. The exemption will not be sustained unless it is given by Constitution or statute, in clear and unambiguous language, and appears to be indisputably within the legislative intention."

See also Re Speed, 216 Ill. 23, 108 Am: St. Rep. 189, 74 N. E. 809, affirmed in 203 U. S. 553, 51 L. ed. 314, 27 Sup. Ct. Rep. 171, 8 Ann. Cas. 137; Humphreys v. State, 70 Ohio St. 67, 65 L.R.A. 776, 101 Am. St. Rep. 888, 70 N. E. 957, 1 Ann. Cas. 233; Carter v. Whitcomb, 74 N. H. 482, 17 L.R.A. (N.S.) 733, 69 Atl. 779; Minot v. Winthrop, 162

Mass. 113, 26 L.R.A. 259, 38 N. E. 512; Alfred University v. Hancock, 69 N. J. Eq. 470, 46 Atl. 178; Re Hickok, 78 Vt. 259, 62 Atl. 724, 6 Ann. Cas. 578.

Cases holding a contrary view are: Re Fiske, 178 Cal. 116, 172 Pac. 390; Re Frain, 141 La. 932, 75 So. 847; Re Peterson, 186 Iowa, 75, 172 N. W. 206; and Sage v. Com. 196 Ky. 257, 244 S. W. 779.

Taxes must be raised for the support and conduct of the government. Exemption to charitable, educational, and religious organizations is bottomed upon the fact that they render service to the state, for which reason they are relieved of certain burdens of taxation. The effect of an exemption is equivalent to an appropriation. It cannot be said to have been the intent of the legislature to make appropriation for the benefit or maintenance of foreign charities, which, at Taxes-exempbest, have a remote tion-foreign chance only of bene- charity. fiting the citizens of this state. The writ is denied.

NOTE.

The subject of exemption of charitable organizations from taxation or special assessment is treated in the annotation following PEOPLE EX REL. BALDWIN V. JESSAMINE WITHERS HOME, post, 634. Specifically as to exemption of foreign charities from inheritance, see subd. III. b, 6, of that annotation.

PEOPLE OF THE STATE OF ILLINOIS EX REL. C. C. BALDWIN, County Treasurer,

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Taxes, § 140-exemption -property leased for benefit of charity. 1. Property owned by a corporation conducting an old ladies' home, which is merely rented and the income applied to the expenses of the home,

(312 Ill. 136, 143 N. E. 414.)

is not exempt from taxation, although the home is a charity, where the statute provides for exemption of property actually used for charitable purposes, but not leased or otherwise used with a view to profit. [See note on this question beginning on page 634.]

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APPEAL by objector from a judgment of the McLean County Court (Radliff, J.) overruling objections to judgment for taxes assessed against a farm belonging to it. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Livingston & Whitmore and Stella E. Whitmore, for appellant:

The income from the farm is not a profit.

Monticello Seminary v. Board of Review, 249 Ill. 485, 94 N. E. 938.

The exemption of the property lessens rather than increases the burden of taxation.

Congregational S. S. & Pub. Soc. v. Board of Review, 290 Ill. 113, 125 N. E. 7; 26 R. C. L. 316.

There is a distinction between a charitable organization and one maintained for gain, profit, or private advantage.

Congregational S. S. & Pub. Soc. v. Board of Review, supra; Grand Lodge, A. F. A. M. v. Board of Review, 281 Ill. 486, 117 N. E. 1016.

Charging an admission fee does not bar exemption.

Congregational S. S. & Pub. Soc. v. Board of Review, supra; Sisters of Third Order v. Board of Review, 231 Ill. 317, 83 N. E. 272.

Messrs. Lester H. Martin and Joseph W. Depew, for appellee:

The enumeration in the Constitution of certain specified property which may be exempted is a limitation upon the power of the legislature to exempt any other property.

People ex rel. McCullough v. Deutsche Gemeinde, 249 Ill. 135, 94 N. E. 162; People ex rel. Thompson v. First Cong. Church, 232 Ill. 158, 83 N. E. 536; Re Allerton, 296 Ill. 340, 129 N. E. 801; Oak Ridge Cemetery Corp. v.

Tax Commission, 299 Ill. 430, 132 N. E. 553; People ex rel. Bracher v. Salvation Army, 305 Ill. 545, 137 N. E. 430.

The fact that the rents and revenues of property are devoted to school purposes does not exempt the property from taxation. The property itself must be directly used for school purposes before it is entitled to exemption.

Monticello Seminary v. Board of Review, 249 Ill. 481, 94 N. E. 938.

The law looks to the property, as it finds it is used, and not to what is done with its accumulations.

Cincinnati College v. State, 19 Ohio, 110; Cleveland Library Asso. v. Pelton, 36 Ohio St. 259; Academy of Richmond County v. Bohler, 80 Ga. 159, 7 S. E. 633; American Sunday School Union v. Philadelphia (American Sunday School Union v. Taylor) 161 Pa. 307, 23 L.R.A. 695, 29 Atl. 26; Smith v. Board of Review, 305 Ill. 38, 136 N. E. 787.

Dunn, J., delivered the opinion of the court:

At the June term, 1923, of the county court of McLean county, the county collector made application for judgment for delinquent taxes against a farm of 240 acres belonging to the Jessamine Withers Home, incorporated. The corporation filed objections, which were overruled, and the objector appealed from the judgment rendered against the land.

The basis for the appeal is the claim that the land is exempt from taxation by reason of ¶ 7 of § 2 of the Revenue Act (Smith-Hurd Rev. Stat. 1923, chap. 120), which declares that all property of institutions of public charity, of beneficent and charitable organizations, and of old people's homes, when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit, shall be exempt from taxation.

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S. Noble King, who owned the land in question and other land, died in 1913, leaving a will having a residuary clause, by which he gave the residue of his property, after the payment of his debts, to his widow. for life, with remainder to the trustees of the Second Presbyterian Church of Bloomington, for the purpose of improving, maintaining, and supporting an old ladies' home. The will directed that none of the land should be sold, but that it should be held in trust until the home should be incorporated and elect its own trustees, and then the trustees of the church should turn over the property to the trustees of the home. The widow renounced the will, and in May, 1913, upon a bill filed by her in the circuit court of McLean County against the trustees of the church and the heirs of the testator, a decree was rendered directing her to convey to the trustees of the Second Presbyterian Church the 240 acres in question upon their payment of a certain sum of money to her, the conveyance being decreed to be their full equitable share of the testator's estate. She conveyed the land in pursuance of this decree. The Jessamine Withers Home was incorporated for the purpose of maintaining a home for aged and indigent women, and has since maintained such a home, but not upon the land in question, and none of the land is occupied by the home. The home is nonsectarian, admitting applicants without regard to race, creed, or nationality. Appli

cants must be sixty-five years old, of good character, and must have been residents of McLean county for a year prior to their admission. They must pay an admission fee of $500, and must convey to the corporation all their property, but they receive the income during their lives. There are sixty or more inmates. The home is always full and has a waiting list. The farm is rented. for part cash and part crop rent, and the rent is all paid to the treasurer of the home, except what is used to keep up repairs, and is used to maintain the home. The income from all its property is insufficient to pay the expenses of conducting the home and it is compelled to solicit charitable subscriptions. The matron, nurses, and janitor are paid, but none of the trustees or officers receive any compensation.

Section 3 of article 9 of the Constitution of 1870 provides that such property as may be used exclusively for school, religious, cemetery, and charitable purposes may be exempt from taxation, but such exemption shall only be by general law. Under the authority of this section, § 2 of the Revenue Act provides that all property of institutions of public charity, all property of beneficent and charitable organizations, and of old people's homes, when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit, shall be exempted from taxation.

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(312 Ill. 136, 143 N. E. 414.)

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termines the question of exemption.

exempt from taxation. If it is devoted primarily to the religious or charitable purposes which exempt from taxation, an incidental use for another purpose will not destroy the exemption, but an incidental use for religious or charitable purposes of property whose primary use is for another purpose will not warrant exemption. First Cong. Church v. Board of Review, supra; People ex rel. Thompson v. First Cong. Church, 232 Ill. 158, 83 N. E. 536. The object of the constitutional provision thus authorizing exemptions from taxation, and of the legislation pursuant to that authority, is to provide that property in actual use by charitable or religious organizations or institutions of learning in carrying out directly their charitable, religious, or school purposes shall not be required to contribute to the support of government, and the authority of the legislature to exempt from taxation is expressly limited to property exclusively applied to such actual use. The purpose does not, however, extend to the exemption of

-exemptionproperty leased for benefit of charity.

property of such organizations not in actual use directly for such purpose, but leased to produce an income or otherwise used for profit, though the income or profit from the property be applied to maintaining the charitable or religious organizations or institutions of learning. Former decisions of this court show that the phrase "actually and exclusively used" for such charitable and beneficent purposes, as applied

to this case, means devoted directly and primarily to the charitable purposes for which the old ladies' home is established, and that the meaning of the phrase "not leased or otherwise used with a view to profit" has the ordinary meaning of the words. of the words. If real estate is leased for rent, whether in cash or in other form of consideration, it is used for profit. While the application of the income to charitable purposes aids the charity, the primary use of this land is for profit. It is used directly for profit, the same as any other farm in the county, and it is only indirectly, from the application of the income, that it aids in the charitable and beneficent purposes of the old ladies' home. In First M. E. Church v. Chicago, 26 Ill. 482, a building consisting of four stories and basement was erected on a lot owned by the church. The lower stories and basement were occupied and used for business purposes and rented to different persons, the entire rent and income being applied exclusively to the purposes of the church, while the upper stories were exclusively used for the religious purposes of the church. The church objected to a judgment for taxes against the property, and it was argued on appeal that, because the rents and profits received for the use of the building were applied to the payment of the mortgage on the premises and to provide. other places of worship in Chicago, this was not appropriating the building to a pecuniary profit, but exclusively to religious purposes. In the opinion it was said that the same might be said of a manufacturing establishment the proceeds of which were devoted to the same object. It was held that the meaning of the law as applied to religious buildings and furniture was that they must be used directly for sacred, and not for secular, purposes. It was not enough that the profits or income of the secular uses are to be applied to sacred purposes. When money is made by the use of the building, that

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