State v. Church of the Advent

• Citation: 208 Ala. 632,95 So. 3
• Decision Date: 11 January 1923
• Docket Number: 6 Div. 800.
• Parties: STATE ET AL. v. CHURCH OF THE ADVENT.
• Court: Alabama Supreme Court

95 So. 3

208 Ala. 632

STATE ET AL. v. CHURCH OF THE ADVENT.

6 Div. 800.

Supreme Court of Alabama

January 11, 1923

Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.

Action by the State of Alabama and Jefferson County against the Church of the Advent to collect taxes for the years 1916-1921, inclusive. From a judgment holding the property exempt for the years 1916-1920, inclusive, plaintiffs appeal and defendant by consent assigns as error the ruling of the court holding the property taxable for the year 1921. Reversed and remanded.

Harwell G. Davis, Atty. Gen., for appellants.

Wm. M Walker, of Birmingham, for appellee.

GARDNER J.

The agreed statement of facts discloses that the property sought to be taxed, although owned by the Church of the Advent, was not actually used for religious purposes, but was rented by the defendant to a person who used the property as a boarding house. The appellee contends that the proceeds derived from this rental were used for religious purposes, and that the property was thereby exempt from taxation, while appellant insisted that the test by which it is to be determined whether or not the property is exempt is the use and not the purpose the proceeds are devoted to. We are of the opinion that the contention on the part of the state is sustained by the holding of this court in Anniston City Land Co. v State, 160 Ala. 253, 48 So. 659, construing section 91 of the Constitution of 1901. This section of our Construction forbids the Legislature of tax "lots in incorporated cities *** with the buildings thereon, when same are used exclusively for religious worship, for schools, or for purposes purely charitable." The Constitution of the state of Kansas contains a similar provision, and this court, in Anniston City Land Co. v. State, supra, followed the holding of the Kansas court in Washburn College v. Shawnee, 8 Kan. 344, wherein the court, speaking through Justice Brewer, said:

"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 to exempt all property belonging to literary and charitable institutions from taxation, the language employed would have been very different."

It was therefore held in this state that exclusive use, irrespective of ownership, was, under this provision of the Constitution, the test of the right of exemption. Under such construction therefore, the question of ownership becomes immaterial, but the matter of exemption is rested upon the use to which the property is put. The rent of the property here in question is but an incident to ownership, and it must necessarily follow as a logical conclusion that if the ownership is immaterial, the disposition of the rent, which is an incident to the ownership, is likewise of no consequence in construing this provision of our Constitution.

This question has been many times determined in other jurisdictions. In Y. M. C. A. v. Douglas County, 60 Neb. 642, 83 N.W. 924, 52 L. R. A. 123, numerous quotations from the authorities are set out, from which we take the following excerpt:

"To hold that property rented for business purposes is exempt when the rentals or income therefrom are used exclusively for religious, charitable, or educational purposes is extending the operation of the law further than is warranted by the language used. There is a clear and well-defined distinction between the use of property and the use of the income derived therefrom. *** Government cannot discriminate between the uses which different societies or individuals will make of the proceeds of their business, and determine that this society or individual will make a more worthy disposition of the proceeds of his business than that, and therefore the one shall be taxed and the other not. *** The fact that the income derived from rents or parts of the building not used is devoted exclusively to the objects and purposes of the association, and not used for the benefit or profit of its members, can make no difference. The law looks to the property as it finds it in use, and not to what is done with its accumulations."

In Fitterer v. Crawford, 157 Mo. 51, 57 S.W. 532, 50 L. R. A. 191, the Missouri court, construing similar language, said:

"There is a very material difference between the 'use of a building

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