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(116 Kan. 175, 225 Pac. 1029.) passing to be exempt from taxation; tions established by the laws of the and except property to or for the state imposing the tax, and will not use of the state, a county or a mu- apply to a foreign corporation, even nicipality for public purposes, shall if it carries on some of its work be taxed as herein provided.

within the state." The particular question involved In Re Prime, 136 N. Y. 347, 18 here has not been decided by this L.R.A. 713, 32' N. E. 1091, it was court. However, a somewhat simi- heid that the exemption of any relar question was considered in the ligious, educational, or charitable case of State ex rel. Taggart v. Hol- corporation or corporation organcomb, 85 Kan. 178, 50 L.R.A.(N.S.) ized for other than business pur243, 116 Pac. 251, Ann. Cas. 1912D, poses, from the collateral inherit800. It was there held that the ance tax by chapter 553 of the exemption from taxation of all prop- Laws of 1890, extends only to doerty used exclusively for municipal mestic corporations. In the opinion purposes meant only the property it was said (136 N. Y. 362): "The of Kansas municipalities. This de- argument that gifts for the promocision was sustained by the Supreme tion of charity, education, and reCourt of the United States. 226 ligion should be encouraged, and U. S. 599, 57 L. ed. 375, 33 Sup. Ct. should not be diminished by exacRep. 112.

tions of the state, presents a moral A majority of the states that have and political rather than a judicial adjudicated the question adhere to question. It is the duty of courts in the view that tax exemptions to the interpretation of statutes to decharitable or educational institu- clare the law as it is, and the intertions are confined to domestic cor- ests of society are best subserved by porations. Blakemore, Inheritance a close adherence by courts to what Taxes, § 257; Gleason & 0. Inherit they find to be their plain meaning, ance Taxn. (2d ed.) 233.

neither narrowing the application In 37 Cyc. 1573, it is said: “A on the one hand, nor extending the bequest to a foreign corporation is meaning on the other, to meet cases not exempt from payment of the not specified, which may seem to be legacy tax, although such corpora- within the reason of the law." tion, by reason of its character as In Re Quirk, 257 Mo. 422, 51 a charitable, religious, or education- L.R.A.(N.S.) 817, 165 S. W. 1062, al institution, is exempt from taxa- it was held that an exemption of tion in the state of its domicil, or property conveyed for some educaalthough domestic corporations of tional, charitable, or religious purthe same class are exempt; and it is pose exclusively, in a statute imposimmaterial that such corporation ing an inheritance tax upon prophas been empowered by law to take erty in the state which shall pass by and hold property in the taxing will or the intestate laws, does not state, or that the fund provided in extend to property conveyed to the bequest is to be used within the charitable institutions located in taxing state.

other states. In 26 R. C. L. 226, 227, it is said: Ross on Inheritance Taxation, $ "The character of legacies which 146, was quoted in the opinion as are exempt depends in each case on follows (page 434): “It has been the phrasing of the statute, but contended that the exemption of there are a few general principles charitable institutions from inheritwhich may be laid down. Thus, it ance taxation applies to such inis agreed that the grant of an ex- stitutions, regardless of their locaemption will be construed strictly tion within or without the state against one claiming the benefit of granting the exemption, for, it is it. An exemption of gifts to liter- argued, the exemption is in recogary, educational, and charitable cor- nition of the beneficent purpose of porations will apply only to corpora- these institutions, and inasmuch as the purpose is common to them all, Mass. 113, 26 L.R.A. 259, 38 N. E. wherever located, the exemption 512; Alfred University v. Hancock, , should be universal. But the courts 69 N. J. Eq. 470, 46 Atl. 178; Re have not yielded to this argument. Hickok, 78 Vt. 259, 62 Atl. 724, 6 They have held, with unanimity, it Ann. Cas. 578. is believed, that in the absence of Cases holding a contrary view any language plainly indicative of

are: Re Fiske, 178 Cal. 116, 172 a different intent, the legislature Pac. 390; Re Frain, 141 La. 932, 75 must be deemed to have made the So. 847; Re Peterson, 186 Iowa, 75, exception for the benefit of its own 172 N. W. 206; and Sage v. Com. institutions only, and that foreign 196 Ky. 257, 244 S. W. 779. corporations, or institutions without Taxes must be raised for the supthe state, must pay the inheritance port and conduct of the governtax, although exempt in the state of ment. Exemption to charitable, edtheir domicil, and although some of ucational, and religious organizatheir charitable work and enterprise tions is bottomed upon the fact that are carried on within the state en- they render service to the state, for forcing payment of the tax." which reason they are relieved of

In State v. Holcomb, supra, it was certain burdens of taxation. The efsaid: “Provisions giving immunity. fect of an exemption is equivalent to from taxation are to be strictly con- an appropriation. It cannot be said strued, and anyone claiming that he to have been the intent of the legis- . should escape his share of the pub- lature to make appropriation for the lic burden must show a clear and ex- benefit or maintenance of foreign press constitutional or statutory ex- charities, which, at

Taxes-exempemption. The exemption will not best, have a remote tion-foreign be sustained unless it is given by chance only of bene

charity. Constitution or statute, in clear and fiting the citizens of this state. unambiguous language, and appears The writ is denied. to be indisputably within the legislative intention." See also Re Speed, 216 Ill. 23, 108

NOTE. Am: St. Rep. 189, 74 N. E. 809, affirmed in 203 U. S. 553, 51 L. ed. The subject of exemption of char314, 27 Sup. Ct. Rep. 171, 8 Ann. itable organizations from taxation or Cas. 137; Humphreys v. State, 70 special assessment is treated in the Ohio St. 67, 65 L.R.A. 776, 101 Am. annotation following PEOPLE EX REL. St. Rep. 888, 70 N. E. 957, 1 Ann. BALDWIN V. JESSAMINE WITHERS HOME, Cas. 233; Carter v. Whitcomb, 74 post, 634. Specifically as to exemption N. H. 482, 17 L.R.A.(N.S.) 733, of foreign charities from inheritance, 69 Atl. 779; Minot v. Winthrop, 162 see subd. III. b, 6, of that annotation.

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

County Treasurer,

v.
JESSAMINE WITHERS HOME, Appt.

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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,

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(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.] Statutes, § 284 construction of tax property from taxation must show exemption.

such exemption within the terms of 2. Statutes exempting property the Constitution and statute. from taxation are strictly construed,

[See 11 R. C. L. 558; 2 R. C. L. Supp. and all doubts are resolved against

1270.] the exemption. [See 25 R. C. L. 1093; 26 R. C. L.

Taxes, $ 140 what determines the 313; 3 R. C. L. Supp. 1466; 4 R. C. L.

question of exemption. Supp. 1657.]

4. The primary use to which propEvidence, $ 120 burden of proof

erty is put determines the question of tax exemption.

its exemption from taxation. 3. One claiming exemption of his [See 26 R. C. L. 326.]

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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 Tax Commission, 299 Ill. 430, 132 N. Stella E. Whitmore, for appellant: E. 553; People ex rel. Bracher v. Sal

The income from the farm is not a vation Army, 305 Ill. 545, 137 N. E. 430. profit.

The fact that the rents and reveMonticello Seminary v. Board of Re- nues of property are devoted to school view, 249 Ill. 485, 94 N. E. 938.

purposes does not exempt the property The exemption of the property less- from taxation. The property itself ens rather than increases the burden must be directly used for school purof taxation.

poses before it is entitled to exempCongregational S. S. & Pub. Soc. v. tion. Board of Review, 290 Ill. 113, 125 N. Monticello Seminary v. Board of ReE. 7; 26 R. C. L. 316.

view, 249 Ill. 481, 94 N. E. 938. There is a distinction between a The law looks to the property, as it charitable organization and one main- finds it is used, and not to what is tained for gain, profit, or private ad- done with its accumulations. vantage.

Cincinnati College v. State, 19 Ohio, Congregational S. S. & Pub. Soc.' v.

110; Cleveland Library Asso. v. PelBoard of Review, supra; Grand Lodge,

ton, 36 Ohio St. 259; Academy of RichA. F. A. M. v. Board of Review, 281 mond County v. Bohler, 80 Ga. 159, 7 Ill. 486, 117 N. E. 1016.

S. E. 633; American Sunday School Charging an admission fee does not Union v. Philadelphia (American Sunbar exemption.

day School Union v. Taylor) 161 Pa. Congregational S. S. & Pub. Soc. v.

307, 23 L.R.A. 695, 29 Atl. 26; Smith Board of Review, supra; Sisters of v. Board of Review, 305 Ill. 38, 136 N. Third Order v. Board of Review, 231

E. 787. Ill. 317, 83 N. E. 272.

Messrs. Lester H. Martin and Jo. Dunn, J., delivered the opinion of seph W. Depew, for appellee:

the court: The enumeration in the Constitu- At the June term, 1923, of the tion of certain specified property

property county court of McLean county, the which may be exempted is a limitation county collector made application upon the power of the legislature to

for judgment for delinquent taxes exempt any other property.

against a farm of 240 acres belongPeople ex rel. McCullough v. Deuts

ing to the Jessamine Withers Home, che Gemeinde, 249 Ill. 135, 94 N. E. 162; People ex rel. Thompson v. First

incorporated. The corporation filed Cong. Church, 232 Ill. 158, 83 N. E. objections, which were overruled, 536; Re Allerton, 296 Ill. 340, 129 N. and the objector appealed from the E. 801; Oak Ridge Cemetery Corp. v. judgment rendered against the land.

The basis for the appeal is the claim cants must be sixty-five years old, that the land is exempt from taxa- of good character, and must have tion by reason of | 7 of § 2 of the been residents of McLean county for Revenue Act (Smith-Hurd Rev. a year prior to their admission. Stat. 1923, chap. 120), which de- They must pay an admission fee of clares that all property of institu- $500, and must convey to the cortions of public charity, of beneficent poration all their property, but they and charitable organizations, and of receive the income during their lives. old people's homes, when such prop- There are sixty or more inmates. erty is actually and exclusively used The home is always full and has a for such charitable or beneficent waiting list. The farm is rented purposes, and not leased or other- for part cash and part crop rent, and wise used with a view to profit, shall

the rent is all paid to the treasurer be exempt from taxation.

of the home, except what is used to S. Noble King, who owned the keep up repairs, and is used to mainland in question and other land, died

tain the home. The income from all in 1913, leaving a will having a resid- its property is insufficient to pay uary clause, by which he gave the the expenses of conducting the home residue of his property, after the and it is compelled to solicit charipayment of his debts, to his widow

table subscriptions. The matron, for life, with remainder to the nurses, and janitor are paid, but trustees of the Second Presbyterian none of the trustees or officers reChurch of Bloomington, for the pur- ceive any compensation. pose of improving, maintaining, and Section 3 of article 9 of the Consupporting an old ladies' home. The stitution of 1870 provides that such will directed that none of the land property as may be used exclusively should be sold, but that it should be for school, religious, cemetery, and held in trust until the home should charitable purposes may be exempt be incorporated and elect its own from taxation, but such exemption trustees, and then the trustees of shall only be by general law. Under the church should turn over the the authority of this section, $ 2 of property to the trustees of the home.

the Revenue Act provides that all The widow renounced the will, and property of institutions of public in May, 1913, upon a bill filed by her charity, all property of beneficent in the circuit court of McLean Coun- and charitable organizations, and of ty against the trustees of the church old people's homes, when such propand the heirs of the testator, a de. erty is actually and exclusively used cree was rendered directing her to

for such charitable or beneficent convey to the trustees of the Sec- purposes, and not leased or otherond Presbyterian Church the 240

wise used with a view to profit, shall acres in question upon their pay

be exempted from taxation. ment of a certain sum of money to

Under the Constitution all propher, the conveyance being decreed

erty in this state is subject to taxato be their full equitable share of passed in accordance with the con

tion unless relieved by legislation the testator's estate. She conveyed stitutional provision just cited. the land in pursuance of this de

Statutes passed for the purpose of cree. The Jessamine Withers Home exempting property from taxation was incorporated for the purpose must be strictly con

Statutes-conof maintaining a home for aged strued, and if there struction of and indigent women, and has since is any doubt upon

tax exemption. maintained such a home, but not

the question it must be resolved upon the land in question, and none against the exemption and in favor of the land is occupied by the home. of taxation. The exemption is not The home is nonsectarian, admit- to be made by judicial construction, ting applicants without regard to but anyone claiming exemption from race, creed, or nationality. Appli- taxation under a statute must show

(312 Ill. 136, 143 N. E. 414.) clearly that the property is exempt to this case, means devoted direct

within the terms of ly and primarily to the charitable Evidence-bur. den of proof- the Constitution and purposes for which the old ladies' tax exemption.

the statute. First home is established, and that the Cong. Church v. Board of Review, meaning of the phrase "not leased 254 Ill. 220, 39 L.R.A. 437, 98 N. E. or otherwise used with a view to 275; Congregational S. S. & Pub. profit” has the ordinary meaning Soc. v. Board of Review, 290 Ill. 108, of the words. If real estate is 125 N. E. 7. It is the primary use to leased for rent, whether in cash which the property is put which de- or in other form of consideration,

termines the ques- it is used for profit. While the Taxes-what determines the tion whether it is

application of the income to chariquestion of

exempt from taxa- table purposes aids the charity, the exemption.

tion. If it is de primary use of this land is for profit. voted primarily to the religious or It is used directly for profit, the charitable purposes which exempt same as any other farm in the counfrom taxation, an incidental use for ty, and it is only indirectly, from another purpose will not destroy the the application of the income, that exemption, but an incidental use for it aids in the charitable and benefireligious or charitable purposes of cent purposes of the old ladies' property whose primary use is for home. In First M. E. Church v. Chianother purpose will not warrant cago, 26 Ill. 482, a building consistexemption. First Cong. Church v. ing of four stories and basement was Board of Review, supra; People erected on a lot owned by the church. ex rel. Thompson v. First Cong. The lower stories and basement were Church, 232 Isl. 158, 83 N. E. 536. occupied and used for business The object of the constitutional pro- purposes and rented to different pervision thus authorizing exemptions sons, the entire rent and income befrom taxation, and of the legislation ing applied exclusively to the purpursuant to that authority, is to pro- poses of the church, while the upper vide that property in actual use by stories were exclusively used for the charitable or religious organizations religious purposes of the church. or institutions of learning in carry

The church objected to a judgment ing out directly their charitable, re- for taxes against the property, and ligious, or school purposes shall not it was argued on appeal that, bebe required to contribute to the sup

cause the rents and profits received port of government, and the author- for the use of the building were apity of the legislature to exempt from plied to the payment of the morttaxation is expressly limited to prop- gage on the premises and to provide erty exclusively applied to such ac- other places of worship in Chicago, tual use. The purpose does not, how- this was not appropriating the buildever, extend to the exemption of ing to a pecuniary profit, but exclu

property of such or- sively to religious purposes. In the -exemptionproperty leased

ganizations not in opinion it was said that the same for beneat of actual use directly might be said of a manufacturing charity.

for such purpose, establishment the proceeds of which but leased to produce an income or were devoted to the same object. It otherwise used for profit, though was held that the meaning of the the income or profit from the prop- law as applied to religious buildings erty be applied to maintaining the and furniture was that they must be charitable or religious organiza- used directly for sacred, and not tions or institutions of learning for secular, purposes. It was not Former decisions of this court show enough that the profits or income of that the phrase "actually and ex- the secular uses are to be applied to clusively used" for such charitable sacred purposes.

When money is and beneficent purposes, as applied made by the use of the building, that

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