St. John's Military Acad. v. Edwards

• Decision Date: 25 October 1910
• Citation: 143 Wis. 551,128 N.W. 113
• Parties: ST. JOHN'S MILITARY ACADEMY v. EDWARDS, COUNTY TREASURER.
• Court: Wisconsin Supreme Court

143 Wis. 551

128 N.W. 113

ST. JOHN'S MILITARY ACADEMY

v.EDWARDS, COUNTY TREASURER.

Supreme Court of Wisconsin.

Oct. 25, 1910.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Suit by the St. John's Military Academy against Joseph Edwards, Treasurer of Waukesha County, to restrain the collection of a tax assessment on complainant's property. From an order overruling a general demurrer to the complaint, defendant appeals. Affirmed.Milo Muckleston (Henry Lockney, of counsel), for appellant.

Bloodgood, Kemper & Bloodgood (Jackson B. Kemper, of counsel), for respondent.

TIMLIN, J.

From the complaint in this action it appears that the respondent was incorporated under the general incorporation law found in chapter 86, Rev. St. 1878 (chapter 86, St. 1898). These statutes authorize a stock corporation to be formed in the manner there provided to conduct, promote, and maintain high schools, academies, and other like institutions. The articles of incorporation of respondent declare the business and purposes of said corporation to consist in establishing, maintaining, and conducting an academic institution. In addition, it purports to be authorized “to buy, sell, hold, convey, and deal in real estate, to buy, sell, and deal in all kinds of personal property, and do and perform any act or thing and exercise any and all powers incident to the business and purposes above specified.” This incongruous combination of corporate powers is quite foreign to ancient legal conceptions. But section 1771, c. 86, St. 1898, provides that a corporation may be formed “to conduct, pursue, promote or maintain any one or more of the following named purposes.” Following this, the purposes specified in the respondent's articles are enumerated. Whether these corporate powers are properly joined in the articles is not before the court in this case, except as it bears upon the questions of construction hereinafter considered. Plaintiff has not attempted to exercise all these powers.

It is further averred that the plaintiff has been since its incorporation engaged solely in the business of conducting a school or academy for boys wherein instruction is given in literary and scientific studies in a general way equivalent to the courses in the public high schools of this state; that it has during the past five years averaged more than 150 pupils in each year, with 10 instructors. It owns less than 10 acres of land in the town of Delafield, in Waukesha county, which is used solely for the purposes of the plaintiff in its business of conducting this school or academy, and has never been leased or otherwise used for pecuniary profit. It owns personal property of the value of about $4,500, which property is and at all times has been used by the plaintiff solely for the purpose of conducting a school or academy, and no other purpose. It has debts incurred for enlarging and improving its schools. No dividends have ever been declared or paid to its stockholders, except in the years 1900 and 1901. It is not expressly averred that the respondent is charging tuition fees or making other charges to its pupils; but this may be inferred from the averments of the complaint that it paid a dividend in each of the years mentioned out of the profits accruing from the business of conducting such school or academy, and that there has been usually a surplus of receipts over expenditures each year, which surplus was applied in decreasing the debts of the respondent. The actual value of the real and personal property of the respondent is at least $36,000.

Respondent on this showing alleges that it is a scientific and literary association, within the meaning of subdivision 3, § 1038, St. 1898, and therefore its property is exempt from taxation. Notwithstanding this the authorities of the town of Delafield in the year 1909 assessed the property of the plaintiff for the omitted taxes of the years 1906, 1907, 1908, and for the taxes of the then current year 1909. This tax the respondent refused to pay. It was returned delinquent into the hands of the county treasurer defendant, who threatens to sell the real estate of the plaintiff for such unpaid real estate taxes and to distrain its personal property to enforce the collection of the other taxes. An injunction is prayed for by the respondent, and the appellant in this court waives any objection he might have on the ground that there was an adequate remedy at law with reference to the personal property. The statute under which the plaintiff claims exemption from taxation is subdivision 3, § 1038, St. 1898: “Personal property owned by any religious, scientific, literary or benevolent association, used exclusively for the purposes of such association, and the real property, if not leased or not otherwise used for pecuniary profit, necessary for the location and convenience of the buildings of such association and embracing the same, not exceeding ten acres.” It is contended that the plaintiff is a corporation, not merely an association; hence not within the...