Albuquerque Alumnae Ass'n v. Tierney , 37 N.M. 156 ( 1933 )

On Motion for Rehearing. Perhaps not unnaturally appellant is impressed, and here strongly urges, that, having contemporaneously sustained the claim of a Masonic lodge (Temple Lodge v. Tierney, 37 N.M. 178,20 P.2d 280, we have been inconsistent, or have at least indulged finespun distinctions, in overruling its claim. We shall add a word upon this point.

Counsel assume that we reached our decision in the Temple Lodge Case by adopting the liberal rule of construction of our exemption provision. Not so. We were urged by the appellee in both cases to the rule of strict construction, both on reason and on local authority. We set forth at some length in the Temple Lodge Case our grounds for rejecting the contention. But we did not declare for liberal construction. We concluded that the problem would not yield to a mere canon of construction, and that we had to decide whether the particular exemption claimed was within the "reasonable and probable intent" of the constitutional provision.

As a pure matter of interpretation of language, it requires some liberality, we confess, to conclude that the use described in the Temple Lodge Case is properly characterized as "charitable." So, on that basis, we had a doubtful case. In such cases, for reasons explained in the decision, the matter will generally be concluded by the construction which other branches of the government have long and uniformly followed. That consideration alone was perhaps sufficient to gain the decision for Temple Lodge.

But, as bearing on the reasonable and probable intent, we had also the fact that, under a variety of exemption provisions, there was a considerable body of judicial decision sustaining the exemption and placing it on the ground that a Masonic lodge is a charitable organization and that property employed in its appropriate pursuits is charitably used.

As we viewed the case at bar, these considerations were absent. It is now stated that counsel in oral argument, though not in the brief, urged "that the administrative officials of this state had heretofore considered college fraternities exempt from taxation." This we did not recall. Giving it full force, it can mean only that one or two county assessors, for an indefinite period less than the life of our Constitution, have deemed such property not subject to taxation, a consideration of little force in determining the meaning of the constitutional exemption.

Nor was there any established or recognized doctrine that use of property for the purpose of college fraternities is an educational use. The authority is to the contrary.

There is another distinction. The charity which served to gain the exemption for Temple Lodge is practiced by the lodge itself, and the property is to that extent used for that purpose. We apprehend that we could not have yielded to the claim if the showing had been merely that the lodge was an association of persons engaged individually in charitable pursuits. That, upon the record, we considered the showing of appellant. It is now urged as against this that one of the objects embraced in the certificate of incorporation is "to exemplify, teach and practice the fraternal principles of Kappa Kappa Gamma fraternity, among the members thereof," that the trial court found appellant to have been organized for the purposes expressed in its charter, and that the property was used for the purpose of practicing the principles of the order. We do not understand that we may take judicial notice of the "fraternal principles" of this organization. How can we hold them to be educational, with no further fact before us than that they are "fraternal"?

Appellant recurs to its earlier contention that, since use, not ownership, is the criterion, it cannot matter at all whether the dormitory be owned by the educational institution or by an independent corporation, group, or individual. The proposition, though plausible, is unsound. We cannot correctly determine "the reasonable and probable intent" by such a logical formula. It is true that ownership of the property is not here a requisite of the exemption right, and that other common limitations on the right do not here exist. It does not follow that, in determining whether a particular use is educational, it may not at times be useful and necessary to inquire as to ownership. This we suggested in the Temple Lodge Case, saying: "Such limitations no longer exist, at least not as arbitrary and controllinglimitations."

The final expression in the original opinion requires another word. It does not accurately represent our conclusion. It might be inferred that we deemed this a case of an educational use, overshadowed by other primary and dominant uses. In fact, it is our view that this record presents no use at all which should be deemed educational within the meaning of the Constitution.

We feel constrained to deny the motion for rehearing. It is so ordered.

SADLER and HUDSPETH, JJ., concur.

ZINN, J., did not participate.

BICKLEY, J., dissents.