State v. Lodge

• Decision Date: 06 June 1924
• Docket Number: (No. 5051.)
• Citation: 123 S.E. 561
• Court: West Virginia Supreme Court
• Parties: STATE. v. Mcdowell lodge, No. 112, A. F. & A. M.

123 S.E. 561

STATE.

v.Mcdowell lodge, No. 112, A. F. & A. M.

(No. 5051.)

Supreme Court of Appeals of West Virginia.

June 6, 1924.

(Syllabus by the Court.)

Error to Circuit Court, McDowell County.

Action by the State against the McDowell Dodge, No. 112. A. F. & A. M. From a judgment for defendant, plaintiff brings error. Reversed and judgment rendered.

John T. Simms, of Charleston, for plaintiff in error.

Strother, Sale, Curd & Tucker, of Welch, for defendant in error.

LIVELY, J. The crucial question involved in this litigation is whether the real property of a Masonic lodge, a part of which is rented for commercial purposes and which produces a substantial income, is subject to taxation.

McDowell Lodge, No. 112, A. F. & A. M., duly organized and chartered as a Masonic lodge under the laws, owns real estate in Welch, McDowell county, consisting of a lot on which it has erected a four-story building and basement, the third and fourth stories of which are used for lodge purposes; the first and second floors rented as offices to various persons, and the cellar leased for a printing office; the annual rentals for basement, first, and second floors amount to $3,958.90. The rents are used by the lodge for purposes of its organization, including moneys in excess of $1,000 appropriated by it directly to charitable purposes. The rent received is expended for charitable purposes, the maintenance of the building, and to pay off and discharge a debt on the building, including the interest. A sworn statement found in the record gives the income for the Masonic year ending September 30, 1922, as $10,337.12, made up of cash balance on hand, dues and fees collected, rents received from the building (which rents amount to $5,458.90), voluntary donations, and miscellaneous income. Disbursements include local charities, interest on the debt ($1,106.30), rent, salaries, supplies, funerals, grand lodge dues, for Masonic home, janitor, light, heat, water, repairs, miscellaneous expenses for lodge and building, insurance, taxes, and an amount ($2,000) paid on debt, The property was entered on the land books and assessed at $25,000 for the year 1922, the total taxes amounting to $632.75, which were paid under protest by the lodge to the sheriff. Subsequently, in June, 1923, the lodge petitioned the county court for a refund of the taxes paid, claiming that the property was not subject to taxation and was erroneously assessed; the county court granted the prayer of the petition, holding that the property was exempt from taxation, and ordered the sheriff to refund the $632.75 theretofore paid. To this decision of the county court the circuit court awarded a writ of certiorari, on petition of the state and a hearing was had on October 27, 1923, when relief was denied to the state, the petition for certiorari dismissed, and the cause stricken from the docket. The clerk was ordered to certify the dis position of the case to the county court. To this action of the court the state excepted, the proceeding stayed for the purpose of obtaining a writ of error, which writ was granted by this court.

Counsel for the Masonic lodge challenges the jurisdiction of this court to entertain this writ of error, claiming that the action of the county and circuit courts was purely administrative and not judicial. To sustain that contention the cases of Railroad Co. v Board of Pub. Works, 28 W. Va. 264, McLean v. State, 61 W. Va. 537, 56 S. E. 884, and Blue-field v. State, 63 W. Va. 480, 60 S. E. 403, are cited. The question of the taxability of property is quite different from controversies over the valuation for taxation. The taxability of property is jurisdictional and calls for judicial determination, whereas the fixing of values for taxation is merely ministerial. This distinction runs through all of our cases on the subject. Wherever the taxpayer raises a question of valuation which is decided adversely to him, he may go to the circuit court, and the judge thereof in deciding the question acts in a ministerial capacity, and no appeal is given from his decision to this court. But where any tribunal having jurisdiction passes upon the taxability of the property judicial review thereof may be had, and if the amount involved is in excess of $100 this court has jurisdiction to review. Our cases so holding are cited in Humphreys v. County Court, 90 W. Va. 315, 110 S. E. 701, beginning with Southside Bridge v. County Court, 41 W Va. 658, 24 S. E. 1002. It would serve no useful purpose to make additional citations. Under section 132a of c. 29, Code, the county court is given authority to pass upon questions of the non-taxability of property, and its decision may be reviewed by certiorari from the circuit court, and from that court to the Supreme Court.

We come to the main question. Is the property of the McDowell Lodge, used in the manner above set out, subject to taxation? Our recent case of In re Masonic Temple Society, 90 W. Va. 441, 111 S. E. 637, 22 A. L. R. 892, holds that lodges of free and accepted masons are charitable bodies and their property when used solely for charitable and benevolent purposes, and not held or leased out for profit, is exempt from taxation We affirm that decision. Many of the decisions of other states are carefully reviewed by Judge Miller in the opinion, in which he points out that each decision is based upon the particular Constitution or laws under which it is rendered. The divergent holdings are thus accounted for. And so, on the question here presented. We must look to our own Constitution and statutes for a solution of the question before us. The general policy of this state, accentuated by section 1, art. 10, of the Constitution; is thatall property shall contribute to the expenses of the government. Taxes must be equal and uniform, and no species of property can be taxed higher than any other species of property of equal value. One aim of government is to protect property rights, insure the possession and enjoyment thereof by the owners, and thus promote domestic tranquillity and the general welfare. The owners of property, whether they be individuals, corporations, or associations, should contribute to the expenses of the protection and stability, of that property. There are exceptions to this general policy which may be made by the Legislature and which the Constitution confines to property which is used for educational, scientific, religious, or charitable purposes. These exceptions are clearly defined by section 57, c. 29, Code, which provides, among other things, that "all property, real and personal, * * * used for charitable purposes, and not held or leased out for profit, " shall be exempt from taxation. The theory justifying exemption of this class of property so used is that the resultant benefits to the body politic will be equal to or in excess of the taxes which would otherwise be imposed, and such religious, scientific, literary, or charitable use...