Scott v. Society of Russian Israelites

• Decision Date: 24 January 1900
• Docket Number: 9,113
• Citation: 81 N.W. 624,59 Neb. 571
• Parties: GEORGE W. SCOTT, APPELLANT, v. SOCIETY OF RUSSIAN ISRAELITES ET AL. APPELLEES
• Court: Nebraska Supreme Court

81 N.W. 624

59 Neb. 571

GEORGE W. SCOTT, APPELLANT, v. SOCIETY OF RUSSIAN ISRAELITES ET AL. APPELLEES

No. 9,113

Supreme Court of Nebraska

January 24, 1900

APPEAL from the district court of Douglas county. Heard below before KEYSOR, J. Affirmed.

AFFIRMED.

W. A Saunders, for appellant.

Will H Thompson and D. W. Merrow, contra.

OPINION

NORVAL, C. J.

This suit was instituted in the court below by George W. Scott to foreclose a tax certificate upon the west half lot 7, block 73, in the city of Omaha, for the taxes of 1889, and for state, county and city taxes subsequently paid by the tax purchaser. At the time the 1889 taxes were levied, as well as when the tax sale occurred, the premises were owned by one David H. Bowman, who, on February 20, 1889, executed a lease therefor to the defendant, the Society of Russian Israelites for the term of ten years, the lessee agreeing to pay, in addition to the monthly rental agreed upon, all taxes and assessments imposed against the property during the lease. The defendant obtained the lease for the purpose of erecting on the lot a house for worship, and in March, 1889, the society commenced the erection of a building on said premises, which was completed in May following, and thereupon the property was used and occupied by the defendant exclusively for religious purposes. State, county and city taxes for the year 1890 were levied on the premises, which the plaintiff paid under his tax purchase. The district court found that the 1890 taxes were illegal and void, and rendered a decree for the plaintiff for the taxes for the year 1889. He has appealed.

The first argument of plaintiff is that real estate occupied and used exclusively for religious purposes is not exempt from taxation, unless the occupant is the owner. The proper solution of this question necessitates an examination of the provisions of the constitution and statute bearing upon the subject.

By section 2, article 9, of the constitution it is provided: "The property of the state, counties and municipal corporations, both real and personal shall be exempt from taxation, and such other property as may be used exclusively for agricultural and horticultural societies, for school, religious, cemetery, and charitable purposes, may be exempt from taxation, but such exemption shall be only by general law."

Section 2, article 1, chapter 77, Compiled Statutes, declares: "The following property shall be exempt from taxation in this state: First--The property of the state, counties and municipal corporations, both real and personal. Second--Such other property as may be used exclusively for agricultural and horticultural societies, for school, religious, cemetery and charitable purposes."

The language of the provisions quoted is plain. There is exempt from taxation all property used exclusively for religious purposes. It is the exclusive use for the purpose named which determines whether the property is subject to the burden of taxation or not. See Omaha Medical College v. Rush, 22 Neb. 449, 35 N.W. 222; Academy of the Sacred Heart v. Irey, 51 Neb. 755, 71 N.W. 752; Washburn College v. Shawnee County, 8 Kan. 344; St. Mary's College v. Crowl, 10 Kan. 442; Gerke v. Purcell, 25 Ohio St. 229. To hold that a religious society must be the absolute owner of the property occupied or used by it exclusively for church purposes to create the exemption would be to inject words into the constitution and statute which are not therein written. This we have no power to do.

In Washburn College v. Shawnee County, 8 Kan. 344, the court construed the provision of the constitution of Kansas which reads, "All property used exclusively for state * * * literary, educational, scientific, religious, benevolent and charitable purposes * * * shall be exempt from taxation," and in the course of the opinion Brewer, J. observed: "To bring this property within the terms of the section quoted it must be 'used exclusively for literary and educational purposes.' This involves three things: first, that the property is used; second, that it is used for educational purposes; and third, that it is used for no other purpose. * * * Nor is ownership evidence of use. * * * This is too plain to need either argument or illustration. If the framers of the constitution had intended...