Turnverein ‘Lincoln’ v. Bd. of Appeals of Cook Cnty.

• Decision Date: 24 October 1934
• Docket Number: No. 22483.,22483.
• Citation: 192 N.E. 780,358 Ill. 135
• Parties: TURNVEREIN ‘LINCOLN’ v. BOARD OF APPEALS OF COOK COUNTY.
• Court: Illinois Supreme Court

358 Ill. 135

192 N.E. 780

TURNVEREIN ‘LINCOLN’

v.BOARD OF APPEALS OF COOK COUNTY.

No. 22483.

Supreme Court of Illinois.

Oct. 24, 1934.

Certified by State Tax Commission.

Proceeding by Turnverein ‘Lincoln’ to have certain parcel of land declared exempt from taxation. From an order of the Board of Appeals of Cook County denying the claim for exemption, complainant appealed to the State Tax Commission, which certifies the record of the cause to the Supreme Court.

Order confirmed.Owens & Owens, of Chicago, for Turnverein ‘Lincoln.’

Thomas J. Courtney, State's Atty., of Chicago (Hayden N. Bell, Jacob Shamberg, William P. Kearney, and Brendan Q. O'Brien, all of Chicago, of counsel), for Board of Appeals.

DE YOUNG, Justice.

Turnverein ‘Lincoln’ filed a complaint with the board of appeals of Cook county by which it sought to have a parcel of land owned by it declared exempt from taxation for the year 1931. The board decided that the property was taxable and denied the claim for exemption. The complainant prosecuted an appeal to the state tax commission, and that body heard evidence in support of the complaint. Pursuant to the provisions of section 35e of the Revenue Act of 1898, as amended (Smith-Hurd Ann. St. c. 120, § 314e; Cahill's Rev. St. 1933, c. 120, par. 346(5), p. 2368), the tax commission has certified the record of the cause to this court and prays that the order of the board of appeals be approved and confirmed.

The appellant, Turnverein ‘Lincoln,’ was organized on October 7, 1885, as a domestic corporation not for pecuniaryprofit. The object for which it was formed, as disclosed by its charter, is the ‘Realization of the principles of humanity and of decisive progress, to be accomplished by fostering all exercises addicted to strengthen physically and mentally.’ The management of the corporation is vested in a board of nine directors. The property for which exemption from taxation is sought is situated on Diversey parkway, in the city of Chicago. It consists of a parcel of ground which has a north frontage of 200 feet and a depth of 125 feet, and is improved by two brick buildings, one erected in 1885 and the other in 1921. The first floor of the east or older building is occupied by a cafeteria, a restaurant, and a large auxiliary gymnasium and lecture room. A lodge hall, storage and rest rooms, a room reserved for kitchen service, the janitor's quarters, and a gymnasium and exhibition hall are located on the upper floor. Four stores occupy the street frontage of the newer building. To the rear of these stores are a lobby, a natatorium, men's and women's lockers and shower baths, and the office of the corporation. On the second floor of this building a gymnasium, two classrooms and three other rooms, one for an instructor, another for apparatus, and the third for storage, are located. The net profits derived from the restaurant are divided between its managers and the corporation, and, if a deficit is incurred, the latter bears the loss. Each of the stores is leased to a tenant at a monthly rental of $50. The lodge hall is let for various purposes, including dances and theatricals; the charge for Saturday night being $40 and for any other night $20.

The claim for exemption presented to the board of appeals was supported by the affidavit of the corporation's manager. From this affidavit it appeared that classes in English, German, physiology, geology, structure and care of the body, bone setting, life saving, first aid to the injured, dramatics and singing were conducted on the premises; that children were permitted to attend certain classes in physical culture without paying tuition; that a circulating library of about five hundred volumes was maintained; that contributions were made to the support of a college at Indianapolis; that the complainant assisted other Turner societies in the maintenance of a fresh air camp on the Fox river near Algonquin to which its members might repair without charge; that children were boarded free at this camp if their parents were unable to pay for their meals; and that a sick benefit auxiliary was operated for the members which, in case of illness, paid a maximum of $8 per week during thirteen weeks, and $50 in case of death.

It further appeared from the affidavit that 70 per cent. of the space in the building was used for corporate purposes and the remaining 30 per cent. was occupied by stores; that, although the stores were of some convenience to the members of the corporation and their friends, the rentals derived from them had never been sufficient to defray the cost and expense of their maintenance and operation; that the directors and the officers performed their duties without remuneration, and were assisted by members who likewise donated their services; that the annual membership dues were $15, which included all privileges for members and their families; that, if a member could not pay his dues, the obligation was canceled on the corporation's books; and that less than 50 per cent. of the members had paid their dues during recent years, but that through the receipt of donations from other members a deficit had been avoided.

From the statement of facts submitted by the county assessor to the tax commission, it appeared that three hundred fifty persons were members of Turnverein ‘Lincoln’; that according to its circulars, to enjoy the privileges of the organization, members were required to pay their dues in advance; that, although no classes in subjects commonly taught in public schools were conducted on the premises, classes in swimming and gymnastics, separated on the basis of sex and age, were held during the winter months; and that nonmembers were allowed to attend these classes upon the payment of a fee of approximately $7.50 per term.

The appellant, by its complaint filed with the board of appeals, charged that it devoted its property exclusively to educational, benevolent, and charitable purposes. Its contention is that by the first and seventh subdivisions of section 2 of the Revenue Act, approved March 30, 1872, as subsequently amended, its property is exempt from taxation.

Section 3 of article 9 of the Constitution provides that: ‘The property of the state, counties, and other municipal corporations, both real and personal, and such other property as may be used exclusively for agricultural and horticultural societies, for school, religious, cemetery and charitable purposes, may be exempted from taxation; but such exemption shall be only by general law.’ This constitutional provision is not self-executing, and exemptions, within the limitations prescribed, exist only when created by a general law enacted by the Legislature. St. John Evangelical Lutheran Congregation v. Board of Appeals, 357 Ill. 69, 191 N. E. 282;People v. University of Illinois, 328 Ill. 377, 159 N. E. 811;People v. Trustees of Northwestern College, 322 Ill. 120, 152 N. E. 555;People v. Deutsche, etc., Gemeinde, 249 Ill. 132, 94 N. E. 162. In determining whether property is included within the scope of an exemption, the statute must be strictly construed, and all debatable questions will be resolved in favor of taxation. Glen Oak Cemetery Co. v. Board of Appeals (Ill.) 192 N. E. 673;People v. University of Illinois, 357 Ill. 369, 192 N. E. 243;People v. Rockford Lodge, No. 64, B. P. O. E., 348 Ill. 528, 181 N. E. 432;People v. Trustees of Northwestern College, 322 Ill. 120, 152 N. E. 555;People v. Jessamine Withers Home, 312 Ill. 136, 143 N. E. 414, 34 A. L. R. 628;First Congregational Church v. Board of Review, 254 Ill. 220, 98 N. E. 275,39 L. R. A. (N. S.) 437;Montgomery v. Wyman, 130 Ill. 17, 22 N. E. 845. Courts have no power to create exemptions from taxation by judicial construction; and the burden of establishing statutoryauthority within the limitations of the Constitution for such an exemption rests upon the person who asserts it. Glen Oak Cemetery Co. v. Board of Appeals, supra; People v. Rockford Lodge, No. 64, B. P. O. E., supra; People v. University of Illinois, 328 Ill. 377, 159 N. E. 811; People v. Trustees of Northwestern College, supra; People v. Jessamine Withers Home, supra; Knox College v. Board of Review, 308 Ill. 160, 139 N. E. 56, 35 A. L. R. 1041;Smith v. Board of Review, 305 Ill. 38, 136 N. E. 787;People v. Deutsche, etc., Gemeinde, 249 Ill. 132, 94 N. E. 162;Catholic Knights v. Board of Review, 198 Ill. 441, 64 N. E. 1104;Bloomington Cemetery Ass'n v. People, 170 Ill. 377, 48 N. E. 905;People v. Ryan, 138 Ill. 263, 27 N. E. 1095; Montgomery v. Wyman, supra.

The solution of the question whether a designated parcel of property is exempt from taxation requires a consideration of the facts of the particular case. The primary use to which the property is devoted, and not its secondary or incidental use, is controlling. People v. Rockford Masonic Temple Bldg. Ass'n, 348 Ill. 567,181 N. E. 458,83 A. L. R. 768;School of Domestic Arts v. Carr, 322 Ill. 562, 153 N. E. 669;People v. Trustees of Northwestern College, 322 Ill. 120, 152 N. E. 555;People v. Jessamine Withers Home, 312 Ill. 136, 143 N. E. 414, 34 A. L. R. 628;People v. Catholic Bishop of Chicago, 311 Ill. 11, 142 N. E. 520;Most Worshipful Grand Lodge v. Board of Review, 281 Ill. 480, 117 N. E. 1016;First Congregational Church v. Board of Review, 254 Ill. 220, 98 N. E. 275,39 L. R. A. (N. S.) 437;People v. First Congregational Church, 232 Ill. 158, 83 N. E. 536. If the property is devoted to a purpose exempt within the contemplation of the law, an incidental use of its facilities for another purpose, when not for profit, will not defeat the exemption. Conversely, property used incidentally for an exempt purpose and having a primary use for another purpose is not exempt. School of Domestic Arts v. Carr, supra; People v. Jessamine Withers Home, supra; Most Worshipful Grand Lodge v. Board of Review, supra; First Congregational Church v. Board of Review, 254 Ill. 220, 98 N. E. 275,39 L....