State ex rel. Hayes v. Board of Equalization for Lawrence County

• Decision Date: 07 October 1902
• Citation: 92 N.W. 16,16 S.D. 219
• Parties: STATE ex rel. HAYES, State's Atty., v. BOARD OF EQUALIZATION FOR LAWRENCE COUNTY et al.
• Court: South Dakota Supreme Court

92 N.W. 16

16 S.D. 219

STATE ex rel. HAYES, State's Atty., v. BOARD OF EQUALIZATION FOR LAWRENCE COUNTY et al.

Supreme Court of South Dakota

October 7, 1902

Appeal from circuit court, Lawrence county; Joseph B. Moore, Judge.

Certiorari proceeding by the state of South Dakota, on the relation of Robert C. Hayes, state's attorney for Lawrence county against the county board of equalization for said county, and the members thereof. Judgment for defendants. Plaintiff appeals. Reversed.

Robert C. Hayes, State's Atty., for appellant. Moody, Kellar & Moody, for respondents.

HANEY P. J.

The question presented by this appeal is whether certain real property in Lawrence county, owned jointly by Golden Star Lodge, No. 9, A. F. & A. M., and Lead City Lodge No. 17, I O. O. F., is exempt from taxation. It appears that these lodges own "the west 30 feet of block 2, lot 12 according to the Hopkins map of the city of Lead," whereon is situated a two-story brick building, the basement and upper story of which are used by the lodges for the purpose of holding their meetings and transacting their business, and by other charitable, religious, and fraternal organizations to which the same from time to time are rented that the lower story of the building is rented and occupied by a retail store, but the entire proceeds of such rentals are applied to religious and charitable purposes, and none other; that the lodges cannot, under and by virtue of the terms of their organizations, distribute any of the proceeds of such rentals to any of their own members, pay any dividends, or use any of such rentals for any commercial business, speculative or mercantile purposes, or for any other than religious and charitable purposes, and in paying ordinary and usual operating expenses, which are of a trivial and insignificant character; and that the disposition of the rentals received by the lodges is not confined to their own members, but that the proceeds of such rentals are distributed to sundry public charities, and for the benefit of the needy, indigent, and suffering poor, whether members of the order or not.

Article 11 of the state constitution contains these provisions:

"Sec. 5. The property of the United States and of the state, county, and municipal corporations, both real and personal, shall be exempt from taxation.

Sec. 6. The legislature shall, by general law, exempt from taxation, property used exclusively for agricultural and horticultural societies, for school, religious, cemetery and charitable purposes, and personal property to any amount not exceeding in value two hundred dollars, for each individual liable to taxation.

Sec. 7. All laws exempting property from taxation, other than that enumerated in sections 5 and 6 of this article, shall be void."

The statute, so far as applicable to this case, reads as follows "All property described in this section to the extent herein limited shall be exempt from taxation, that is to say: *** Third. All property belonging to any charitable, benevolent or religious society, or used exclusively for charitable, benevolent or religious purposes." Laws 1897, c. 28, § 5. In so far as the statute is broader than the constitution, it is conceded to be invalid. The inquiry, therefore, will be whether the property is exempt under the organic law. It is also conceded by counsel that the owners of the property are organized for charitable purposes, within the meaning of the constitutional provision quoted. This proposition will be accepted for the purposes of this appeal, without expressing any opinion concerning the rights of fraternal organizations, as such, to claim exemptions. Assuming, then, that these lodges existed for charitable purposes, and that their property is exempt while used exclusively for the purposes for which they are organized, we will proceed to consider whether the property involved in this action is being so used. Appellant contends that, whereas the lower story of the building is occupied by a stock of merchandise, the property to that extent is used for the purpose of retailing merchandise, and is not exempt. On the other hand, it is insisted by respondents that, whereas the rentals of the storeroom are used for charitable purposes, the entire property is so used, and consequently exempt. Therefore the controversy turns upon the meaning of the word "use," as employed in the statute. The verb "use" is thus defined by Webster: "To make use of; to employ; to put to a purpose; as to use a plow; to use a chair; to use a book; to use time; to use flour for food; to use water for irrigation." In the language of Judge Brewer: "All property receives protection from the state. Every man is secured in the enjoyments of his own, no matter to what use he devotes it. This security and protection carry with them the corresponding obligation to support. It is an obligation which rests equally upon all. It may require military service in time of war, or civil service in time of peace. It always requires pecuniary support. This is taxation. The obligation to pay taxes is coextensive with the protection received. An exemption from taxation is a release from this obligation. It is the receiving of protection without contributing to the support of the authority which protects. It is an exception to a rule, and is justified and upheld upon the theory of peculiar benefits received by the state from the property exempted. Nevertheless it is an exception, and they who claim under an exception must show themselves within its terms." Washburn College v. Shawnee Co. Com'rs, 8 Kan. 344. To avail themselves of the exemption claimed in this action, the owners of the property must show themselves to be clearly within the exception as defined and limited by the constitution. Do not the express terms of that instrument require that the property itself shall be exclusively used for the excepted purpose? As the constitutional provision on this subject is...