Washburn College v. Comm'rs of Shawnee Co. , 8 Kan. 344 ( 1871 )

The opinion of the court was delivered by

Brewer, J.;

Only one question is presented in this case, and that involves a construction of these words in section one of Article 11 of the State Constitution: “All property wed! exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes * * * shall be exempt from taxation.” The plaintiff, as is admitted by the pleadings, is a literary and educational institution, incorporated under the laws of Kansas, and is the owner and in possession of a quarter-section of land adjacent to the city of Topeka, in the county of Shawnee. It is further admitted that such quarter-section is and always has been unimproved and unoccupied; that at present plaintiff occupies and uses ground and buildings in the city of Topeka for carrying on its work; that these are inadequate and insufficient for its uses, and that it has held such quarter-section ever since title was acquired for the sole purpose of erecting its permanent buildings thereon, and that it has always-been its intention and still is to use said land for purely educational purposes. Upon these facts plaintiff claims that this quarter-section is by virtue of the constitutional provision quoted exempt from taxation. With us this question is one purely of construction, and not of policy. Whether the rules in respect to exemptions fixed by the people in their organic instrument, or established by their representatives in legislature assembled, be wise or unwise, is not for us to inquire. Ita lex scripta est, concludes us.

All property receives protection from the State. Every man is secured in the enjoyments of his own, no matter to what use he devotes it. This security and protection carry with them the corresponding obligation to support. It is an obligation which rests equally upon all. It may require military service in time of war, or civil service in time of peace. It always requires pecuniary support. This is taxation. The obligation to pay taxes is co-estensive with the protection received. An exemption from taxation is a release from this obligation. It is the receiving of protection without contributing to the support of tlie authority which protects. It is an exception to a rule, and is justified and upheld upon the theory of peculiar benefits received by the State from the property exempted. Nevertheless, it is an exception; and they who claim under an exception must show themselves within its terms. Appyling these general considerations to the question before us, let us see whither they will lead us. To bring this property within the terms of the section quoted it must be “ used exclusively for literary and educational purposes.5 5 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. Now what facts are alleged from which it is claimed this use can be inferred? Simply two — first, ownership, and second, an intention to occupy as a permanent site. But neither of these tends to show an actual use. An intention to occupy is not equivalent to occupation, does not tend to prove it. The pleadings recognize the difference, for they admit the failure while they allege the intention to occupy. An occupation which is to be — though here it is only which may be — is no present use. Nor is ownership evidence of use. Eull possession and perfect title are consistent with total failure to 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. They would have used the simple, ordinary language for expressing such intention. The fact that they ignored “ ownership,55 and made “use55 the test of exemption, shows clearly that they recognized the essential distinction between the two, and established the latter rather than the,former as the basis of exemption. The argument pressed with great force by counsel for plaintiff that this construction operates harshly upon infant institutions of charity and learning, which must first secure a site before obtaining means to erect buildings upon it, and that thus the “ poverty of the institution is made a ground of imposing heavier burdens, while its enhancing wealth gives it not only greater power and usefulness, but absolutely greater immunities,” is an argument to be addressed to the people wbo have the power to increase exemptions if deemed wise in favor of such institutions. But the same construction of this constitutional provision which would exempt the property of the infant and feeble would also exempt the property of the older and wealthy and strong institutions. It would be virtually granting immunity from taxation to all institutions within this stp,te, organized for the accomplishment of the purposes named in that section, no matter what amount of property they might amass; for all their property they would hold with a view, at some time and in some form, to use in accomplishing the purposes of their organization. This may seem fraught with little peril in a young state; but the history of older communities shows the danger of the accumulation of large amounts of untaxed property by even religious organizations. But it is said that “ the intention was to exempt from taxation all property, real or personal, productive or non-productive, in use, or to be hereafter used, that is fairly held for the add of such educational institutions.” In other words, because the possession of certain property aids an educational institution, therefore it is used for educational purposes. This is but a stronger way of stating the proposition that ownership is the test of exemption; for the possession of property always inures to the benefit of an institution, always aids it. It gives it credit, inspires confidence, and attracts other property. It gives to it, as to an individual, larger possibilities. Yet this is but an incident to a result of the ownership. And this, as we have seen, was ignored as a rule of exemption; and that which was established was the present and exclusive use for certain designated purposes. The judgment of the district court is affirmed.

All the Justices concurring.