Untitled Texas Attorney General Opinion ( 1946 )

. .
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Joe Reeder, Jr.
County Attorney
Knoz county
Benjamin, Texas
Dear Sir: Opinion No. 0-;rOy
Re: 18 property owned and used
sxoluelvely by
Leroy Teegue P
We are In receipt of your letter
whloh you request the opinion of th
questlon. Upon our request ror add
un that the local post was not in
that It had been granted a char
which you enclosed. You furthe
``,Sek.,tl~'29i Art. YIXI 0r .our State Constitution allows
the 'LegisIytulv, by general lawa, to exempt rrom taxation “lnstltu-
tlons of puirely ptiblic charity". The Legislature ln accordance with
this sectlon\ga6sed article 7150 V.A.C.S., and we quote the per-
tinent parts of sucil statute:
"The following property shall be exempt
from taxation, to wit:
Honoreble Joe Reeder, Jr. - Page 2
“Seotlon 7. IZlbllo charities.--All buildings
belongl.lg to institutions of purely public oharlty,
together with the lende belonging to and oooupled
by such institutions not leased or otherwire used
with a view to profit, unless auoh rents end profita
and all money8 and credits are appropriated by such
institutions solely to austaln suoh lnatItutlons and
ror the benefit of the slok end dleabled members and
their famllles end the burial of the seme, or for
the’ malntenanoe of persons when unable to provide for
thamselve e , whether suoh persons are members of such
In’stltutlone or not. An .lnstltutlon of purely pub110
charity under this article 1s one whloh dispenses lta
aid to Its members and others in slokness or distress,
or at death, without regard to poverty or rlohes of
.the reoiplent, also when the funds, property and
assets of such institutions are pleoed and bound by
its laws to relieve, aid and administer in any way
to the relief of its members when in want, sickness
and distress, and provide homes for its helpleee and
dependent members and to educate end maintain the
orphans of Its deceased members or other persons. Id.”
The purpose for which the national patriotic society was
formed la set out In Title 36 U.S.C.A., Section A3:
“43. The purpose of this corporation shall
be : To uphold and defand the Constitution of the
United States of Amerioa; to promote peace and
good will among the peoples of the United States
and all the nations of the earth; to preserve the
memories and Incidents of the two ‘iiorld Nars iought
to uphold democracy; to cement the ties and comrade-
ship born of servlcel and to conseorate the efforts
of its members to mutual helpfulness and eervlce to
their county. As amended Oct. 29, 1%2, c. 633, 1,
56 stat. 1012.”
\Ie have been furnished a copy of the national ounstitution
and by-laws of the Amerioan La&ion and the 1945-1946 oonstltutlon
and by-laws of the Jmsrican Legion, Depsrtment of Texas, and rind no
language altering in any way the purposes of the American Legion as
set out In its national charter. The charter of the local post con-
tains the following lanp,ua&e:
Honorable Joe Reeder, Jr. - Yoga 3
“By the eooeptance of this Charter, the
aald Post aoknowledges lrrevooeble jurlsdlotion
end deolares ltaelr to be in all things aubjeot
to the Constitution of the Amerloan Legion and
of the Department of Texas, and the rulea, regu-
latlona, orders and lawa promulgated in pursuance
thereof; and rurther the said Feat’ pledges Itself
throu&h its members, to uphold, protect and defend
the Conatltution of the United States and the
principles of true Americanism, for the common
welfare of the 11~1~ and In solemn commemoration
of those who died that liberty might not pariah
nom the Earth.”
In Opinion lrlo. 0-747, dated Juna. 2, 1939, this Department
considered the question of liability ror franchise tares of Amerloan
Legion Corporetlons to be organized under Texas Lswa, the appllcatlons
for ohertere oontalnlq the following “typloal” purpose provisions :
“It shall have all the rights, powers and
privilegea, granted to and oonferred upon oorpora-
tions by provision of Subdivision 2, .“.rtlole 1302,
Chapter 1, Title 32, of the Revised Civil Statutes
of the State of Taxes, which rends in hsec verba:
lVITlle support of any benevolent, oharltable,
educational or missionary undertokiw,* and partlcu-
larly lncludlw, the rollowing:
“‘(a) To preserve and strengthen oomradeshlp
among its members; to perpetuate the memory end
history of our dead; to support end maintain
education In the moral, intellectual and phyaloal
development of those who served in, or who may
serve in, the ;\rmy , Navy, Xarlne Corns or Coaot
Guard of tha United States of America, in any
foretin war, lnaurreotion or axpedltlon, whloh
service shall be aovarned by the Issuance of a
campaign badge by the Government of the United
States of ,\merica; and to malntuin true allegiance
to the Government of the United :,:tetes of America,
and fidelity to its Constitution and Lowa; to
fos tsr true pa trlotlam; and to malntol~i and extend
the Institution of ;Lmerlcan freedom:
Honorable Joe Reader, Jr,. - Page 4
“‘(b) To act aa a charitable and benevolent
organization for the purpose of promoting the
welfare, alleviating the suffering, and assisting
and aiding thoee who have served, or may .eerve,
with the military foroaa of the United Statee,‘of
America In foreign lands, their wldowe, orphana
an4 dependents and relations. 111
The writer of the opinion conoluded that Amerloan Legion Corporations
were exempt fron payment of the franohlae tax by r’eason of Art. 7094,
V.A. C.S. which exempta’ from euch tax oorporations organize4 Y’or
strictly educational purposes, or ror purely publla aharlty. *I
It would seem that’ the tirporations organized under the
“typical* purpose oharter proviolons just eet out satisfy all the
requirements of such oorporotlona being purely public oharitiea.., Even
though the national charter of the Amerloan Legion, read in oonneotion
with the oharter of the local post, does not present such a olear-out
case, the authorltlea 4laouesed below lead ua to ooncluds that the
local post la a public charity, assuming that the local post is con-
ducting its affairs in accordanoe wfth :the charter provfsione.
In Powera v. Flret National Bank of Oorslcana, 137 S. iv. (24)
639, 842, affirmed in 138 Tex, ‘604, 161 S. Wol. (24) 273, Judge Alexander
defines a publio charity aa followsr
“A public charity or trus~t la one for the
benefit of the public at large or .aome substantial
and indefinite portion of it. Charitable purpose8
include (a), the relief’ of poverty; (b) the ,advance-
ment of education; (c) the advancarnent of religion;
(4) the promotion of health; (a) governmental or
munloipal purposes; and (i) other purposes the
aoconpllshment of which la benefloill to the commun-
Restatement of the Law ci Trusts, p. 1140, Sec.
:%: 10 Amer Jur, 621; 14 C.J.S., Charities, p. 439,~
12;‘Soott On’Truata., 1972; Perry on Trusts dc Trus-
tees, Vol. 2, p. 1184.”
In the case of Conleg v. Daughters or the Republic, -_106 Tex.
..
80, 156 S.b. 197, the court deals wlth a corporation organlzea ror tna
declared purpose of perpetuating the memory and aplrlt of the men who
aohleved Texaa’a independenos, and to encourage historical reaearah
into the early history of Texas , and promote the celebration of
Honorable Joe Reedar, Jr. - Page 5
Indapendanoa Day of the Texas Republic, and ereot monuments upon
plaoaa made historic in the war for Texas’s Independence. The oourt
held that the society was properly incorporate4 aa an na4uoational
undertaking” within the second subdivision of Artlole 1121, Revised
Ststutes’, which wording Is Identical with that of Section 2 of Artlcla
1302, Vernon’s Annotated Civil Stotutes.
The Court in the Conlay Case, supra, explains the tarm
“e4uoationala as r0ii0w3:
“The purpose of this corporation Is clearly
‘educational’. Khatavar educatas is within the
meaning of ‘educational un4ertnkin.g’. Yduoatlon
in the sense as used in the statute inoludaa:
‘In its broadest sense, . . . not merely the in-
struction raoeivad at school or collage, but the
whole course of training, moral, intelleotual and
physioal; la not limited to the ordinary inatruc-
tion of the child in tha’prsuits of literature.
It comprehends a proper attention to the moral
and religious sentiments of the child. And it is
sometimes used aa avnonymoua with “learning”.’
14 cyc. p. 1230. The sentiment of regard For
the memory of those who gave their lives for the
blessings of this great state stimulates patriotism,
and la in the highest sense educational. The facts
to be preserved furnish the means of the beat aduca-
tion for the VOUM man and woman of this state.
The purpose ii 1a;dable in its influence upon the
present panerotion; it is laudable, educational
and benevolent for the future citizens.” (amphails
auppliad)
Since the purpose olause contained in the national charter
of the Amarioan Legion shows vary clearly that the corporation is an
“educational Institution” and that the oorporatlon is not formed for .,
private profit or gain, it musti be held that the local post ie a
public aharlty. If an institution is devoted to publio eduastion
without private gain It la an institution of public charity. Southern
Methodist University v. Clayton, 142 Tax. 179, 176 S.W. (24) 749, 750;
see also Fowsrs v. First National Dank or Corslcana, 138 Tax. 604, 161
S.P:. (24) 273, 280, and the opinion of the Court of Civil Appaala in
the same case, recorded in 137 Sill. (24) 839: ‘b
As additional authority for holding the local post to be a
public charity, wa cite the case of Dodanheimer v. Confederate Memorial
.
Honorable Joe Reader, Jr. - Page 6
Association, 68 Fed. (2d), 507, certiorari denied, 292 U.S. 629, 54
Supreme Court, 643, 78 Law Ed. 1483. The court held the Association
to be a publio charity because the court found it was lnoorporated
for the iollowlng pur~osaa :
.
” to erect and maintain a Confederate
hfeaor1ti1’I;lstituta , and there to col&ect, arrange
and preserve statues, portraits, photographs, and
hlstorlcal data relating to the Southern Confederacy,
calculate4 to enable future historians to obtain suoh
reliable facts and data as will asslst them In
writing fair, aocurate and lmpartia~ history of, said
war and of the South, the said association being eduoa-
tional, patriot10 and historical at,all times.”
Although we have decided
._ that. .__.
the local. post
. is a purely
public charity, the use to Whlon tha tmllalng 18 put posse a more
difficult question. The rule la well settled that the use of a
building, avan though the lnstltut$on be one of *purely public charl-
” must be for exclusively charitable purposae. B.P.O.E. Lodge v.
ift; of Houston, 44 S.W. (26) 488. Then quaat&Tn of axclualve use for
such purpose la entlraly’ona of fact and you have not stated, and we
do not know, the extent of the use ~of the two pool tables and two
domino tables. We are inclined to believe that an incidental,
occasional or aporadlc uaa of these amusements by the members on
meeting nights and similar ocoasions would not take away the ad
valoram tax exemption. However, If ‘the building le used as a social
club by the members of the local post, the rule announce4 In the case
just cited would apply, and the building and grounds would not be tax
exempt.
Ve trust the foregoing discussion fully answers the question
asked.
Yours Vary truly
AlTORiiZY GENZRiLlL.,OF !?XXAS