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Massenburg et al. vs. The Grand Lodge F. & A. M. of the State of Georgia.

The judge then passed an order restraining defendants as prayed. Defendants except, and say that the judge erred: (1) in granting a restraining order against defendants as prayed for by complainant; (2) in making the order and judgment aforesaid ; (3) in holding that the property was and is exempt from payment of the fi. fa., and is not subject to taxation by the State or by the county; and in restraining defendants from further proceeding

CLIFFORD ANDERSON, attorney-general, for plaintiffs in

error.

John S. DAVIDSON and Bacon & RUTHERFORD, contra.

BLECKLEY, Chief Justice.

Certain official masons and their associate members, present and future, were incorporated in 1796, by the name of the Grand Lodge of Georgia, to the end that charitable institutions might be promoted, and a society that had existed time immemorial might be secured in their rights and privileges, the declared principles of the order being charity and universal benevolence. The charter gave the corporation “full power and authority to take, hold and enjoy real and personal property and also to receive and apply bequests or donations as may be made to and for the uses and purposes intended by the said institution.” Mar. & Craw. Dig. 147. Nothing appears in the charter upon the subject of taxation. By section 798 of the code of 1873, “any house belonging to any charitable institution," and also all stocks owned by charitable institutions for the legitimate purposes of such, were exempted from taxation. Whilst this section was in force the case of The Mayor vs. Solomon's Lodge, 53 Ga. 93, arose and

Massenburg et al. vs. The Grand Lodge F. & A. M. of the State of Georgia.

was decided, the court holding that Solomon's Lodge, also a masonic corporation, was a charitable institution, and that a house belonging to it, any house, was exempt. This decision was made in 1874. In 1877, the present constitution of the State was adopted. It strictly limits (code of 1882, 895181, 5182, 5184,) the former discretionary power of the legislature to classify property as exempt and non-exempt. Section 5181, “All taxation shall be uniform upon the same class of subjects, and ad valorem on all property 'subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” Section 5182, “The General Assembly may, by law, exempt from taxation all public property; places of religious worship or burial; all institutions of purely public charity; all buildings erected for and used as a college, incorporated academy, or other seminary of learning; the real and personal estate of any public library, and that of any other literary association used by or connected with such library; all books and philosophical apparatus, and all paintings and statuary of any company or association, kept in a public hall and not held as merchandise or for purposes of sale or gain : Provided, the property so exempted be not used for purposes of private or corporate profit or income.” Section 5184, “All laws exempting property from taxation, other than the property herein enumerated, shall be void.” In 1878, (code of 1882, $798,) the General Assembly exercised, in its full extent, the power conferred upon it to grant exemption ; in so doing, after the words “ the following described property shall be exempt from taxation, to wit,” using the exact language of the constitution, “ all institutions of purely public charity” being amongst the terms of description or enumeration. In Trustees vs. Bohler (last term), 80 Ga. 159, this court

Massenburg et al. vg. The Grand Lodge F. & A. M. of the State of Georgia.

construed the exemption as applied to a devise of real estate in trust to appropriate the annual product to the erection of a poor-house, and the support of its inmates, holding that exemption depends upon the use made of the property, not of the income, and that the devised realty was not exempt.

The present case differs from that in several particulars. In that the charity was not masonic; here it is: in that the institution as a physical entity was prospective only; here it is in actual, corporeal existence; there the property taxed was never to be used directly and immediately for the charitable object, but only the produce or income derived from it was to be devoted to that object; here the property taxed is the temple or lodge-building of the charitable order or society—the domicile, habitation, seat and external symbol of the organization, the upper story of the building being occupied and used as its “lodge,” and lower story rented out as stores, producing an income which is applied exclusively to charitable purposes, and from which the incorporated society derives no private profit.

1. Abiding by the construction put upon the constitution, and the act of 1878, in Trustees vs. Bohler, the question is, whether the differences in the facts which we have just indicated are of such a nature as to hinder the principle of that case from applying to this. Though masonic charity is widely extensively and highly beneficent, it is certainly not more “purely public" than an almshouse. Indeed, it has been matter of grave judi. cial discussion whether masonic institutions, or others which confine their benefits to members of the given association, are institutions of purely or even of public charity at all. Swift vs. Easton, 73 Pa. St. 362, Donohugh's Appeal, 86 Ib. 306 ; Burd Orphan Asylum vs. School District, 90 Ib. 21 ; Deleware Co. Institute vs.

Massenburg et al. rs. The Grand Lodge F. & A. M. of the State of Georgia.

Delaware Co., 94 1b. 163; Thiel College vs. Mercer Co., 101 Ib. 530; Gerke vs. Purcell, 25 Ohio St. 229; Humphries vs. Little Sisters, 29 Ib. 201 ; Library Association vs. Pelton, 36 lb. 258; Bangor vs. Masonic Lodge, 73 Me. 428. There is no occasion now to declare for the one side or the other of this nice question, but we may and do concede the purely public character of the charity which the Grand Lodge of Georgia administers, since its legislative charter recognizes it as an organ of charity and universal benevolence.

The difference between an existing and a mere prospective or possible institution is certainly important, and would serve to distinguish the present from the former case in many respects, but not with regard to the discrimination between corpus and income, which the decision in that case recognizes. It is also an important difference that the property taxed in that case was “outlying,” not the contemplated institution, nor a part of it, nor ever to become a part of it; but this element likewise leaves the discrimination between corpus and income untouched. We held that exemption depends upon the use made of the property, not upon the use made of the income. To devote income to the erection and support of an almshouse is to use it for a purpose purely charitable, as purely charitable, in a legal sense, as to disburse it through the Grand Lodge of Georgia for any object within the range of universal benevolence. We arrive at the conclusion that the property itself, claimed to be exempt, must be used directly and immediately for the charitable object, not from any express declaration to that effect in the constitution or the statute, for there is none, but from the negative contained in the proviso upon use for private or corporate profit or income. Interpreting “ private or corporate income ” to mean

Massenburg et al. vs. The Grand Lodge F. & A. M. of the State of Georgia.

any income which is not public, we consider that productive property used as capital to raise money to expend in charity is used for private income when the owner is a private individual, and for corporate income when the owner is a corporation. It is no more allowable, under the constitution, for a charitable association to accumulate money by the use of exempt property to be disbursed in charity than it is for a common citizen to do it. For A or B it is no answer to the taxcollector to say, “ This part of my property is rented out to produce my charity fund, and has been for the last ten years ; every cent derived from it is given to the poor and needy, and I never considered or used any portion of it as profit or income.” Neither can such an answer be accepted from any charitable organization whatsoever. In so far as such organizations are administrators and disbursers of purely public charity, their property permanently in use for that purpose

is exempt from taxation; but in so far as they are capitalists or proprietors engaged in acquiring money or effects to be so disbursed, property of any and every kind from which their income is derived is subject to be taxed the same as property generally. The constitution intends no favor to the money-making function of charitable institutions, but to the spending or dispensing function alone. When the two functions cooperate in the use of the same property or of different parts of the same building, as in this case, the strict letter of the constitution would deny exemption to the whole; for the language is, “ Provided, the property so exempted be not used for purposes of private or corporate profit or income.” Wyman vs. St. Louis, 17 Mo. 335. But the general tenor of authority seems to be that in such instances, though the property is taxable, there may be a due apportionment of values in the

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