Ware Lodge No. 435, Ancient Free v. Harper , 236 Ala. 334 ( 1938 )

Brushing aside the long discussion of constitutional interpretation, which I deem wholly irrelevant, and which can only tend to obscure the real issue in this case, the question presented is simply this:

Is there such conflict between the provisions of § 3022 of the Code of 1923, to wit:

"But property, real or personal, owned by any educational, religious or charitable institution, society or corporation, let for rent or hire or for use for business purposes, shall not be exempt from taxation, notwithstanding the income from such property shall be used exclusively for educational, religious or charitable purposes;" and the provisions of § 5 of Act, approved March 17, 1875, Acts 1874-75, p. 160, which provides "and the property and effects owned by them beingdedicated to charitable purposes only, shall be exempt fromtaxation," as would justify the holding that the Legislature intended and attempted a repeal of said clause in the Act of 1875, by the adoption of the Code? [Italics supplied.]

Before treating the questions certain well settled principles of construction of statutes and constitutional provisions granting exemptions are here stated.

1. Exemptions from taxation must be strictly construed in favor of the taxing power. State v. Tuscaloosa Cotton Seed Oil Co., 208 Ala. 610, 95 So. 52; State v. Wright, 224 Ala. 357,140 So. 584.

2. Statutes "creating * * * a total or partial exemption must be expressed in clear and unambiguous terms, and may not be deduced from language of doubtful import." Brown, Ins. Commissioner, v. Protective Life Insurance Company, 188 Ala. 166,66 So. 47.

3. The presumption is against construing a statute as conferring irrepealable exemption from taxation. Mayor, etc., of City of Mobile v. Stein, 54 Ala. 23.

The facts are without dispute. The property taxed, the subject of the controversy in this case, belongs to subordinate lodge of Masons at Alexander City, and consists of a lot and a three story building, the third floor is used for lodge purposes, the first and second floors for commercial purposes, and the rents accruing therefrom are used, after paying the expenses of the lodge for charitable purposes. The property was not owned by said lodge at the time of the enactment of the statute of March 17, 1875, but was acquired more than a half century after the enactment of said statute.

The pertinent provisions of the Act of 1875 are found in Section 5, the only section that refers to and deals with property of subordinate lodges. It provides that:

"The said grand lodge, and each subordinate lodge under its jurisdiction, shall have, respectively, power to receive by gift, grant, contract, devise or donation by will, or otherwise, any personal or real estate, not exceeding in value the sum of two hundred thousand dollars as the maximum of their assets, respectively, and shall have power to sell, alien or dispose of the same, and that no such gift, grant, contract, or devise, or donation by will, subscription, or otherwise, shall fail by reason of any misconception in the name of such corporation, and that all contracts or agreements which may have been lawfully entered into by said subordinate lodges under their organization heretofore shall be binding upon them in their several corporate capacities under this act, and that the same may be enforced by them respectively, and the propertyand effects owned by them being dedicated to charitablepurposes only shall be exempt from taxation." [Italics supplied]. Acts 1874-75, pp. 160, 161.

We are in the outset confronted with an ambiguous provision exempting property from taxation.

Its most natural interpretation is that it was intended to apply to property presently owned and presently dedicated, at the time of the enactment, to charitable purposes. If the well settled rule of construction, strictissimi juris, is applied, this is all it means. State v. Wright, supra.

This ambiguous provision can not be construed to mean that the property acquired fifty years later was, or is, as a matter of law, dedicated to charitable use.

If we ignore all the well settled rules of interpretation the most that said provision means is, that the property and effects, acquired and owned, if used exclusively for charitable purposes, shall be exempt from taxation. The use to which theproperty is dedicated at the time of the effort to assess the same is the criterion of the exemption. State et al. v. Church of the Advent, 208 Ala. 632, 95 So. 3; Anniston City Land Co. v. State, 160 Ala. 253, 48 So. 659; State Tax Commission of Alabama et al. v. Commercial Realty Company, a Corporation, post, p. 358, 182 So. 31.

Property rented and used for commercial purposes is not usedexclusively for charitable purposes, though the rents are subsequently so used. State et al. v. Church of the Advent, supra.

If there is doubt, the doubt aided by the presumption against irrepealable exemptions should be resolved in favor of the state's taxing power. Mayor, etc., of City of Mobile v. Stein, supra.

So construed there is no conflict between the Act of 1875 and § 3022 of the Code, and all the camouflage raised about the Dartmouth College doctrine in discussion is irrelevant.

The Act of February 17, 1854, considered in State of Alabama v. Alabama Bible Society, 134 Ala. 632, 32 So. 1011, provided "that the property of the said 'Alabama Bible Society at Montgomery' shall be exempt from taxation," without regard to its use. That case is not pertinent.

For these reasons, I respectfully dissent.