Goldman v. Robert E. Bentley, Post No. 50, American Legion

• Citation: 107 N.E.2d 528,158 Ohio St. 205
• Decision Date: 16 July 1952
• Docket Number: No. 32835,32835
• Parties: , 48 O.O. 155 GOLDMAN v. ROBERT E. BENTLEY POST NO. 50, AMERICAN LEGION.
• Court: United States State Supreme Court of Ohio

Page 205

158 Ohio St. 205

107 N.E.2d 528, 48 O.O. 155

GOLDMAN v. ROBERT E. BENTLEY POST NO. 50, AMERICAN LEGION.

No. 32835.

Supreme Court of Ohio.

July 16, 1952.

Robert L. Black, Jr., Cincinnati, for appellant.

Robert A. Goldman, Cincinnati, for appellee Jerome Goldman.

C. Watson Hover, Pros. Atty., and Francis Schwegmann, Cincinnati, for appellee George C. Guckenberger, auditor.

PER CURIAM.

The principal question here involved is whether the use of the property in question for meetings of American Legion posts and other patriotic and service organizations of veterans, without charge, is, under the provisions of Section 5353, General Code, a use exclusively for charitable purposes entitling the property to exemption from taxation. A secondary question is whether such property is so exempt where at times its occupancy is temporarily surrendered to other organizations and persons for a service fee.

The pose claims that the use of the property for its dedicated purpose of veterans' headquarters and activities is a charitable use entitling the property to exemption from taxation, and that the incidental use of the property by outside organizations for a service fee is not destructive of such exemption.

Section 2, Article XII of the Constitution of Ohio, is in part as follows:

'General laws may be passed to exempt * * * houses used exclusively for public worship, institutions used exclusively for charitable purposes, and public property used exclusively for any public purpose * * *.'

Pursuant to such constitutional authority, the General Assembly enacted Section 5353, General Code, which provides in part as follows:

'Real and tangible personal property belonging to institutions used exclusively for charitable purposes, shall be exempt from taxation.'

In determining property to be exempt from taxation, the taxing authorities and the courts are, both by the Constitution and statutes, specifically limited to properties 'used exclusively for charitable purposes.' Furthermore, this court is traditionally committed to the proposition that exemption statutes must be strictly construed and that no presumption favorable to the exemption of property from taxation will be indulged. This must necessarily be the rule in order to preserve equality in the burden of taxation. Cincinnati College v. State, 19 Ohio 110, 115; Lee v. Sturges, 46 Ohio St. 153, 159, 19 N.E. 560, 2 L.R.A. 556; Benjamin Rose Institute v. Myers, 92 Ohio St. 252, 110 N.E. 924, L.R.A.1916D, 1170; Cullitan v. Cunningham Sanitarium, 134 Ohio St. 99, 100, 16 N.E.2d 205; Incorporated Trustees of Gospel Worker Society v Evatt, 140 Ohio St. 185, 188, 42 N.E.2d 900; Jones v. Conn, 116 Ohio St. 1, 155 N.E. 791; In re Estate of Taylor, 139 Ohio St. 417, 40 N.E.2d 936; Columbus Metropolitan Housing Authority v. Thatcher, 140 Ohio St. 38, 44, 42 N.E.2d 437.

Under our statute the test of tax exemption is the use to which the property is devoted, and, where a certain use is the requisite of exemption, the exemption is lost if the property is appropriated to other uses. Cullitan v. Cunningham Sanitarium, supra; Zindorf v. Otterbein Press, 138 Ohio St. 287, 34 N.E.2d 748; Incorporated Trustees of Gospel Worker Society v. Evatt, supra.

And this is true even though the income or proceeds of the use of the property are devoted to charitable purposes. Cincinnati College v. State, supra; Cleveland Osteopathic Hospital v. Zangerle, 153 Ohio St. 222, 91 N.E.2d 261, and cases cited.

In the instant case, the Board of Tax Appeals made a specific finding that the activities of the post 'appear to be no different in scope than those of other fraternal and patriotic lodges and organizations, whose general club rooms and meeting places are not entitled to tax exemption.' A careful examination of the record substantiates the findings of the Board of Tax Appeals in this respect. The post is a constituent member of the American Legion. The constitution of the post discloses that it is a fraternal and not primarily a charitable organization, although like other fraternal societies it does some charitable work among its members and others. Its...