City of Jackson v. Preston

• Decision Date: 30 November 1908
• Docket Number: 13,567
• Citation: 93 Miss. 366,47 So. 547
• Court: Mississippi Supreme Court
• Parties: CITY OF JACKSON v. JAMES R. PRESTON

47 So. 547

93 Miss. 366

CITY OF JACKSON v. JAMES R. PRESTON

No. 13,567

Supreme Court of Mississippi

November 30, 1908

FROM the circuit court of, first district, Hinds county, HON WILEY H. POTTER, Judge.

Preston appellee, was plaintiff in the court below; the city of Jackson, appellant, was defendant there. The plaintiff sought to recover from the city money which he had paid it under protest as municipal taxes for the year 1907. From a judgment in plaintiff's favor defendant appealed to the supreme court. The facts are stated in the opinion of the court. The section of Code 1906 involved, so far as relates to the subject matter of the suit is as follows:--

"4251 (3744). What property exempt. The following property, and no other, shall be exempt from taxation, to-wit:--

* * *

* * *

(d) All property, real or personal, belonging to any religious or charitable society, and used exclusively for the purpose of such society and not for profit. All property, real or personal, belonging to any college or institution for the education of youth, used directly and exclusively for such purpose."

It will be remembered that by Code 1906, § 3317, municipalities are empowered to levy ad valorem taxes only on property within their limits subject to state and county taxes, and that all property exempted from state and county taxes, is exempt from municipal taxation as well.

Judgment affirmed.

McWillie v. Thompson, for appellant.

The declaration not only fails to show that the property on which the taxes were paid belonged to a college or institution for the education of youth, but negatives the fact by showing that it belongs to Preston.

Two things are absolutely essential to an exemption under the statute: (1) The property must be property "belonging to" a college or institution for the education of youth and (2) it must be used directly and exclusively for an educational purpose.

Neither of these two essentials without the other can support the exemption; the withdrawal or nonexistence of either causes the claim of an exemption to collapse. It surely does not need the citation of authority to prove the position taken.

It will be claimed by appellee that the legislature undertook to create the exemption by its amendment of Code 1892, § 3744 par. (d), and therefore he is entitled to maintain this suit.

The Code 1892, § 3744 par. (d) exempted "All property real or personal, belonging to any * * * incorporated institution for the education of youth, used exclusively for the purposes of such * *, and not for profit."

The amendment made consisted of (1) striking out the word "incorporated" and inserting the words "college or" before the word "institution" and (2) omitting the words "and not for profit" from the end of the sentence.

After as well as before the amendment the property must be property belonging to the educational institution and must have been used exclusively for educational purposes. Before the amendment the institution must have been an incorporated one, since then it need not be incorporated; it can be a joint stock company, a religious denomination, or other association of persons capable of owning property, real or personal, or of being the beneficiaries for whom property can be held in trust by another. Before the amendment the use need not have been direct, but since then the property must be used "directly" as well as exclusively by the educational institution. Before the amendment if the property was used for profit it was not exempt; since then if it belonged to the educational institution and be used directly and exclusively for educational purposes it makes no difference that the use is for profit.These are the only effects of the amendment.

The court below struck from the paragraph as found in the Code of 1892 the words "belonging to" when the legislature in passing the Code of 1906 had expressly left them there, under circumstances persuasive of deliberate intent. The legislature had the matter of amending the statute and enlarging the exemption in mind and in its wisdom held on to the words "belonging to" as limiting the property to be exempted and yet, appellee appeals to the court to strike them out.

The exemption claimed is sought to be rested upon but one leg, the use of the property, while the law looks to the ownership and use, the ownership no less than the use.

Take the case before the court: Preston owns the property, he may sell it tomorrow and defeat the object of the exemption; his creditors may levy upon it under execution or attachment and sell it away from the purposes to which at present it is devoted to the destruction of the object of the exemption. This will not do; the legislature was unwilling to exempt property unless it were devoted to educational purposes beyond the whim or power of any one man, or the creditors of any one man to revoke the dedication. It is no answer to this to say that if it belonged to the college it could be sold by the college, or the creditors of the college, because the probability of an educational institution selling its property used for educational purposes or suffering it to be sold under execution is quite remote.

For whose benefit was the exemption under consideration intended? Manifestly for the college or institution for the education of youth, and not for the benefit of any person whose property might be used "directly and exclusively" for college purposes. Whose use of the property is referred to in the statute? Manifestly the owner's use, otherwise we might have this case: An owner would lease his property for a large rental to an educational institution and be able to claim the exemption for his benefit by showing that it was used "directly and exclusively" by the institution, his tenant. This would not do, was never intended.

Our position is strengthened by a consideration of other parts of the section. Look at par. (a); under it the ownership of land constituting a cemetery is unimportant; under par. (e) ownership is not made prominent to say the least; while under par. (f) it is wholly without significance; the exemption depends alone under paragraphs (a) and (f) upon the use to which the property is devoted. The legislature knew how to grant an exemption when property was used for certain purposes and it knew how to grant the exemption with reference to use and ownership jointly. Knowing how, it granted the exemption claimed only when the property belonged to a college or institution for the education of youth and was used directly and exclusively for its purposes.

L. Brame, for appellee.

Under the Code of 1892, § 3744, the provision in reference to exemptions of this character was as follows: "All property, real or personal, belonging to any religious or charitable society, or incorporated institution for the education of youth, used exclusively for the purpose of such society or institution, and not for profit."

In the Code of 1906, § 4251 (d), a very material change was made, the language being as follows:

"All property, real or personal, belonging to any college or institution for the education of youth, used directly and exclusively for such purpose."

It will be seen that the requirement for incorporations was expressly omitted and the words "and not for profit" stricken out. The evident purpose of this change was to broaden the statute in the interest of education, and this was consistent with a wise public policy. We must attribute some purpose to the legislature in making this change. It was well-known that a number of prominent educational institutions in the state were owned by individuals. There was no reason for making a distinction between incorporated institutions and those that were not incorporated. The manifest purpose of the legislature in making the change was to foster and encourage education throughout the state by placing all educational institutions on the same footing as to taxation.

In this connection, we also call attention to Code 1892, § 3994, which provided as follows: "In districts containing not more than one chartered institution of learning, the board shall locate the public school, if it be so desired by the authorities of the chartered institution, with the consent of the trustees of the chartered institution, at the site thereof;" etc. This language is carried forward literally in Code 1906, § 4513. Therefore the legislature in Code 1906, § 4251 omitted the provision as to an incorporated or chartered institution, but in the suction last quoted, Code 1906, § 3994, re-enacted the law, expressly providing for an incorporated institution.

As stated before, this action of the legislature in striking out the word "incorporated" is significant. It is a cardinal rule of construction that some purpose must, be attributed to the legislature when in amending or re-enacting a statute it leaves out a word or clause and especially one so broad and comprehensive as the word omitted in this instance. This is especially true where the effect of a change is in the interest of the well known public policy of the state.

"A new enactment is to be interpreted 'in the light of the general policy of previous legislation and of the long established principles of law and equity,' and 'there is a presumption that by the new enactment the legislature intended some progress along the line, and did not intend any reversal, of such established policy and principles.' Haggett v. Hurley, 91 Mc. 547."

We conclude therefore that in enacting the law of 1906, it was in effect expressly provided that property in private ownership, if devoted directly and exclusively to the education of youth, shall be exempt from taxation. And why not? Why should the land, buildings and equipment of an incorporated...