Ware Lodge No. 435, A.F. & A.M. v. Harper

• Citation: 236 Ala. 334,182 So. 59
• Decision Date: 16 June 1938
• Docket Number: 5 Div. 281.
• Parties: WARE LODGE NO. 435, ANCIENT FREE AND ACCEPTED MASONS, v. HARPER.
• Court: Supreme Court of Alabama

182 So. 59

236 Ala. 334

WARE LODGE NO. 435, ANCIENT FREE AND ACCEPTED MASONS, v. HARPER.

5 Div. 281.

Supreme Court of Alabama

June 16, 1938

Appeal from Circuit Court, Tallapoosa County; W. B. Bowling, Judge.

Action by Ware Lodge No. 435, Ancient Free and Accepted Masons, of Alexander City, Ala., a corporation, against J. H. Harper, as tax collector of Tallapoosa county, to recover taxes paid under protest. From a judgment for defendant, plaintiff appeals.

Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and rendered.

BROWN J., dissenting.

Richard H. Cocke, of Alexander City, for appellant.

A. A Carmichael, Atty. Gen., B. W. Simmons and Wm. H. Loeb, Asst Attys. Gen., and Sam W. Oliver, of Dadeville, for appellee.

THOMAS Justice.

The action was on the common counts by the Ware Lodge of Masons against the tax collector for taxes paid under protest.

The complaint in one count was in assumpsit for money had and received.

The plea was in short by consent. The cause was submitted to the court without a jury and upon an agreed statement of facts "and certain stipulations."

The stipulations referred to are as follows:

"That the issues in this proceeding are properly joined by the plaintiff's single count in general assumpsit for money had and received, and the defendant's plea of the general issue in short by consent, with leave to the defendant to show thereunder all matters which might properly be specially pleaded, and with leave to the plaintiff to show any matters in reply which might properly be set up by special replication.

"It is further agreed that under the issues, as thus framed, there is presented, among other things for the consideration of the Court, as fully as though specially pleaded, the Federal question whether or not any Constitution of the State of Alabama, adopted since March 17, 1875, or any Act of the Legislature of the State of Alabama, approved since March 17, 1875, and which purports to revoke or repeal any privilege, immunity or exemption from taxation granted to the plaintiff by Section 5 of an Act of the Legislature of Alabama, approved December 9, 1859, [Acts 1859-60, p. 458] and Section 5 of an Act amendatory thereof, approved March 17, 1875 [Acts 1874-75, p. 160] is in contravention of the provisions of Section 10 of Article 1 of the Constitution of the United States [U.S.C.A.Const. art. 1, § 10] prohibiting any State from passing a law impairing the obligations of contracts.

"The facts hereinafter agreed to are all the facts deemed necessary by the parties to be submitted to the Court for the determination of the issues in this case, and shall constitute all the evidence of both the plaintiff and the defendant. All the facts hereinafter agreed to, together with all Exhibits hereto attached, are agreed to be relevant and material to the issues, as joined by the pleadings, and shall be thereunder admissible.

"It is agreed between the parties to this cause that the plaintiff, Ware Lodge No. 435, Ancient, Free and Accepted Masons, of Alexander City, Alabama, is a duly and regularly constituted and chartered Subordinate Lodge of the Most Worshipful Grand Lodge of Free and Accepted Masons of the State of Alabama; that the plaintiff is a body politic and corporate, possessing all the powers, rights, privileges and immunities specifically given to subordinate lodges of the Grand Lodge by the Legislative charter granted to the Most Worshipful Grand Lodge of Free and Accepted Masons of the State of Alabama, being an Act of the Legislature of Alabama, approved December 9, 1859, entitled, 'An Act to incorporate the Grand Lodge of Free and Accepted Masons of the State of Alabama, and the Subordinate Lodges under its jurisdiction;' and an Act amendatory thereof, approved March 17, 1875, entitled, 'An Act to amend sections one (1), two (2) and five (5) of an act entitled, an act to incorporate the Grand Lodge of Free and Accepted Masons of the State of Alabama, and the Subordinate Lodges under its jurisdiction, approved December 9, 1859'. Copies of said Acts are hereto attached, for the convenience of the Court, and marked respectively Exhibits 'A' and 'B'.

"That the plaintiff owns a certain lot in the City of Alexander City, Alabama, upon which is located a three story building. The entire third story of this building is used by the plaintiff for a Lodge Hall, ante rooms and paraphernalia storage rooms only. This third floor is used by the plaintiff for no commercial purposes, is not now and never has been rented out, and is non revenue producing. The second story of said building is divided into offices, and these the plaintiff regularly rents to various persons and receives revenue therefrom. These second story offices are presently rented out and are income producing. The plaintiff has rented out these second floor offices continuously and received the rents therefrom for many years prior to 1931, and during the years of 1931, 1932, 1933, 1934, 1935 and 1936 rented out the entire second floor and received a money rental therefrom. The first floor of the building is presently rented to the Federal Government for use as a United States Postoffice and to the Alexander City Chamber of Commerce for its offices, and the plaintiff receives a money rental from each of said tenants and received such rental during the years of 1931, 1932, 1933, 1934, 1935 and 1936, and for mnay years prior thereto. The building was erected about the year of 1910, and the 1st and 2nd stories thereof have continuously, since its erection, been rented out by the plaintiff on a commercial and revenue producing basis. All revenue received by the plaintiff for the rent of the first and second stories of its building is covered into the treasury of the plaintiff, and is thereafter used, after the overhead expenses of the plaintiff have been paid (including the maintenance and repair of the three stories of said building) for charitable purposes only.

"* * * It is further agreed that all the personal and real property owned by the plaintiff does not exceed in value the sum of $200,000.00. * * *

"No part of the said sum of $639.97, paid by the plaintiff to the Tax Collector, as aforesaid, has been repaid. And the Tax Collector, though requested, has declined to return said money."

The Act of 1859 [Acts of Alabama 1859-60, p. 458], amendatory of the Act of June 16, 1821, p. 22, incorporating the Most Worshipful Grand Lodge of Free and Accepted Masons of Alabama, contains among other things, the following provisions:

"Sec. 2. Be it further enacted, That said Grand Lodge shall have power to collect its revenue and to apply the same according to the ancient customs of the order, or may loan out the same for the purpose of aiding in benevolent enterprises, or for the purpose of accumulation: Provided, That the funds in money or choses in action shall not exceed in available assets the sum of fifty thousand dollars at any one time, and shall not be loaned upon usurious interest, nor shall the funds or accretions thereof be used otherwise than for the payment of the expenses of said Grand Lodge and for charitable purposes, and being thus set apart, the same shall not be liable to taxation. [Last italics supplied.]

"Sec. 3. Be it further enacted, That all contracts made or obligations assumed heretofore, which are not inconsistent with the laws of the land by said Grand Lodge under the former act of incorporation of said Grand Lodge, passed June 16th, 1821, or acts amendatory thereof be, and the same are hereby made valid and binding upon said Grand Lodge as organized under this charter, and that the acceptance of this charter by a resolution of said Grand Lodge, shall be all that is required to complete its organization under the same."

The provisions of the Act of 1875, amendatory of the Act of 1859 [Acts of Alabama 1874-75], here pertinent are found on pages 158, 159, 160 and 161 of said act, and are as follows:

"Section 1. Be it enacted by the General Assembly of Alabama, That * * * and may acquire, purchase, hold and enjoy real estate not to exceed ten acres in quantity and two hundred thousand dollars in value for carrying on and conducting its business, may rent out any store, rooms or offices in the lower stories of the buildings which may have been erected on such real estate, or which the said grand lodge may erect thereon, and collect the rent, and for the purpose of purchasing such real estate and buildings, the said grand lodge shall have power to borrow money, issue its bonds therefor and execute a mortgage on any property it may own to secure the same, and may hold or loan out any money derived from the renting of its store rooms and offices or otherwise, as the said grand lodge may desire, subject to the regulations hereinafter prescribed.

"Sec. 2. Be it further enacted, That said grand lodge shall have power to collect its revenue and apply the same according to the ancient customs of the order, or may loan out the same for the purpose of aiding in benevolent enterprises or for the purpose of accumulation; Provided, that the money of said grand lodge shall not be loaned upon usurious interest, nor shall the funds or accretions thereof be used otherwise than for the payment of the expenses of said grand lodge and for charitable purposes, and being thus set apart the same shall not be liable to taxation.

"Sec. 5. Be it further enacted, That the said grand lodge, and each subordinate lodge under its jurisdiction, shall have, respectively, power to receive by gift, grant, contract, devise or donation by will, or otherwise, any personal or real estate, not exceeding in value the sum of two hundred thousand dollars as the maximum of their assets,

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