Tr.s Of Phillips Exeter Acad. v. Exeter.

• Decision Date: 07 September 1943
• Citation: 33 A.2d 665
• Parties: TRUSTEES OF PHILLIPS EXETER ACADEMY v. EXETER.
• Court: New Hampshire Supreme Court

33 A.2d 665

TRUSTEES OF PHILLIPS EXETER ACADEMY

v.EXETER.

Supreme Court of New Hampshire.

June 25, 1943.

Rehearing Denied Sept. 7, 1943.

COPYRIGHT MATERIAL OMITTED.

Transferred from Superior Court, Rockingham County; Young, Judge.

Proceedings by the Trustees of the Phillips Exeter Academy against the Town of Exeter for abatement of taxes for the years 1935 to 1940, inclusive. The cases were transferred to the Supreme Court on exceptions taken by both parties during and after trial following decision of certain questions in the petitions for the first three years on prior transfer in advance of trial, 90 N.H. 472, 27 A.2d 569.

One exception sustained, and other exceptions overruled.

Petitions for abatement of taxes for the years 1935 to 1940 inclusive. Certain questions in the petitions for the first three years were decided in their prior transfer (90 N.H. 472, 27 A.2d 569), in advance of trial. All the cases are now transferred on exceptions by both parties taken during and after the trial. The opinion sufficiently states the exceptions, and also the material facts. Transferred by Young, C. J.

Demond, Sulloway, Piper & Jones, of Concord (Jonathan Piper, of Concord, orally), for plaintiff.

Robert W. Upton, of Concord, and Batchelder & Wheeler, of Exeter, for defendant.

ALLEN, Chief Justice.

I. The plaintiff's exceptions (b) to (p) inclusive as they appear in the transfer of the case are overruled. They raise the same questions decided in the transfer of three of the cases in 90 N.H. 472, 27 A.2d 569, and reconsideration of them is denied.

II. Certain preliminary questions arising upon the defendant's exceptions are first considered. One relates to the taxability of two items of property. Of these two items, it is claimed that the Administration Building is partly taxable, “because the administrative work relating to the dormitories [and dining halls] is carried on there.” While the dormitories and buildings so far as used for dining halls are taxable, it does not follow that their administration is not a service of exclusive educational use. The administration is understood to include the control and regulation of the properties, their financial operation, and the accounting and auditing pertaining to their management and conduct.

Administration of the Academy is necessarily more than a mere governing agency over the students and the curriculum. Oversight of all the Academy's property is an incident essential to the maintenance of its educational benevolence, and fairly property devoted to that oversight is in direct and exclusive use for its institutional purposes, as much as its gymnasium and infirmary. The service is analogous to that of the caretaker who had oversight of rented and other property of a charity and whose occupancy of a dwelling house of the charity was held to be that of the charity, as considered in Hedding, &c., Ass'n v. Epping, 88 N.H. 321, 324, 189 A. 347. The Administration Building remains wholly tax exempt.

Another item of property is an open area of over an acre on the south side of Front Street. It is opposite the main campus in front of the Academy Building on the north side of the street, and is carved out of an area in which are located the Davis Library, the Principal's House and a number of dormitories. As appears, “It is occupied only by a flag pole, and is really a part of the Academy set-up, and which the court finds is not taxable ** if sold and built upon the value of the property south of it would be materially and disadvantageously affected thereby.”

It was held in the case in 90 N.H. at page 506, 27 A.2d at page 592, that the taxability of unoccupied land “maintained as a part of the academy campus and grounds ** depends upon its appropriation in proportion between taxable and nontaxable buildings.” The tract here considered is to be governed by the same rule. The Academy “set-up” is construed to include dormitories and other taxable structures. The reference to the effect of a sale of the tract upon other property indicates that dormitories are a part of the set-up. It follows that the tract should be apportioned between taxable and non-taxable uses, in connection with which the Academy property on the north side of Front Street may be properly considered, so far as the street may be regarded as only a physical severance without being an integral one. The tract may fairly be found to be a supplementary extension of the campus and grounds north of the street. The case is recommitted for revision of findings on this ground.

III. The defendant's exception to the finding of the qualifications of Mr. Percival to testify to the value of the plaintiff's lands and buildings is overruled. The trial court was entitled to find from the evidence of his special fitness in experience and knowledge that his opinion would probably be of some aid. Watkins v. Peterson &c. Express, 88 N.H. 476, 188 A. 461; Weiss v. Wasserman, 91 N.H. 164, 166, 15 A.2d 861; Cedergren v. Hadaway, 91 N.H. 270, 271, 18 A.2d 380; Freeman v. Seahill, 92 N.H.-, 32 A.2d 817. The facts in Wood v. Berkshire Mut. Ins. Co., 89 N.H. 213, 195 A. 667, are not such as to govern here. There a layman possibly from Bethlehem was regarded as unqualified to estimate the value of real estate in Lebanon over fifty miles distant by air-line and much farther by travel, with only examination of the property made and certain evidence heard by him. An expert familiar with values in the vicinity is comparable only by contrast. The former could not, while the latter could, be found to have an opinion of some helpful value.

IV. In all of the six cases transferred the trial court allowed the institutional exemption of $150,000, for which the statute (R.L. c. 73, §§ 24, 25) provides, in addition to the exemption of the real estate of seminaries of learning (R.L. c. 73, § 7). Prior to 1930 all educational institutions were entitled to the institutional exemption. In that year an amendment (Laws 1930, Sp. Sess., c. 4, § 1) was enacted which required that to be entitled to the exemption as an educational institution it must “have a curriculum regularly approved by the state board of education and in which training is *** given for at least six months of each calendar year.” The amendment has remained in force, with a slight change. The institution must “conduct[s] regular courses of instruction, under a curriculum approved by the state board of education,” and for the same yearly period of at least six months (R.L. c. 73 § 24). So far as the change is more than verbal, it is not here material. The Academy has never had its curriculum approved by the State Board.

In the former transfer of three of the cases, no issue was raised over the Academy's failure to obtain the approval of the State Board, and the defendant, denying all other exemptions, conceded the plaintiff's right to that of $150,000. The 1930 amendment was wholly disregarded in any bearing or effect. For the purposes of the transfer, it was ignored as though it had not been enacted. It follows that under the principle of res adjudicata any claim that the amendment may now be considered in connection with the petitions upon which the former transfer was brought is not maintainable.

But as to the other petitions upon which the present transfer is brought, the decision in the former transfer was no declaration that the amendment is inapplicable to the Academy. The amendment, being there unobserved and treated as non-existent, its construction now becomes a subject of de novo treatment.

One position taken by the plaintiff is that “the obvious intent of the legislature was to prevent fly-by-night private schools from enjoying the exemption.” The difficulty with this position is that, conceding the intent, the language used does not manifest it. The language embraces all private educational institutions with no exceptions. However foolish and arbitrary the amendment may be thought to be in application to institutions of such high standing and permanence as the Academy, the legislative will is to be found in the enacted expression of it. The ascertainment of actual intent or oversight, in conflict with the expressed intent, cannot prevail as a method and rule of judicial construction. While as between a reasonable and unreasonable meaning of the language used, the reasonable meaning is to be adopted, yet if the language is clear in having only one meaning, it must be adopted, however unreasonable it may be in its applications or in some of them. The courts have no function of redrafting legislation in order to make it conformable to an intention not fairly expressed in it. The amendment as it reads is unqualified, and relief from its inappropriateness, incongruity and obduracy must be sought through further legislative action.

In further contention, the plaintiff avers the unconstitutionality of the approval clause in the amendment as an undue delegation of legislative power. It bases its position on the ground that there is an “insufficiency of a declared policy and of a prescribed standard” (Ferretti v. Jackson, 88 N.H. 296, 302, 188 A. 474, 478) setting forth the State Board of Education's field of consideration in extending or withholding approval of an institution's curriculum.

Whether the amendment, if its approval clause is invalid, is thereby wholly invalid, is an inquiry not here needing or given answer. The Academy cannot be charged with any omission which does not meet the other demands of the amendment. It maintains regular courses of instruction for at least six months in each calendar year. Any general reference herein to the amendment is to be understood to be restricted to confinement to the approval clause, in discussion of its validity.

As to argument that the effect of the invalidity of the amendment is to destroy the institutional exemption in its entirety, the answer is: “It is universally held that a valid act is not affected by the...