I am unable to agree with the conclusion of the majority or the reasoning upon which it rests. It is my judgment that there are three essentials to the exemption of an educational institution under 1163(7): (1) It must be devoted to the public use. (2) It must be sequestered for educational uses. (3) Neither it nor any person can secure any profit from its operations. The first requisite involves "the conception of public education and public benefit which is at the root of the exemption claimed — the performance, though by private persons, of functions which otherwise devolve upon the State or municipal government"; Pomfret School v. Pomfret, 105 Conn. 456, 460,136 A. 88; and necessarily excludes a private school which solely is "calculated, manifestly, to interest only those who have the means and disposition to separate their children from the public schools." Brunswick School v. Greenwich, 88 Conn. 241, 243,90 A. 801. The majority opinion recognizes that this was the law as declared by this court until the recent decision by a divided court in the case of Edgewood School, Inc. v. Greenwich, 131 Conn. 179, 183,38 A.2d 792, when the majority held the first requisite above to be no longer essential to exemption.
By its opinion in the instant case the majority accepts the language used in that connection as authority for its present conclusion. This language, however, was not essential to that decision, and recognition that the result in that case was correct does not require an exemption in the present case, for the factual situation is materially different. There, as that opinion pointed out, the plaintiff was "organized to care for educationally exceptional and underprivileged children," and, accordingly, by fulfilling *Page 12 that function it served the public interest by relieving the public schools of this "great burden and responsibility." Here, not only does the plaintiff provide no such public service but it is primarily a boarding school exacting a charge of $500 per year for any day pupil. During 1945-6, while Litchfield furnished education for 769 of its local pupils, but two in all, and they as day pupils, were cared for by the plaintiff with its hundred thousand dollar plant. It gives but little scholarship aid, with no preference to students from Connecticut, and a majority of its pupils come from outside of this state. Manifestly the plaintiff is a private school which is totally devoid of that devotion to the public use which distinguishes the Edgewood School case.
The majority opinion suggests further reasons for holding that under the present wording of 1163, adopted by amendments enacted in 1925 and 1927, devotion to the public use is no longer essential to exemption. Chapter 109, 1, of Public Acts, 1921, the statute construed in the Pomfret School case, exempted realty "exclusively occupied as colleges, academies, churches, public schoolhouses or infirmaries." The corresponding provision of 1163(7) reads: "the real property of . . . a Connecticut corporation organized exclusively for scientific, educational, literary, historical or charitable purposes." A natural and obvious purpose of this change of wording was to simplify the language. Thus, the words "educational . . . purposes" in their context took the place of "colleges, academies . . . public schoolhouses"; and similarly "charitable purposes" took the place of "churches . . . or infirmaries" while "scientific [and] literary . . . purposes" supplanted "scientific and literary societies," *Page 13 which had been dealt with in a subsequent provision of the 1921 act. The full import of the change referred to was, in my opinion, this simplification rather than the expression of an intent to eliminate the devotion to the public use requirement, as so resourcefully argued by the majority. The legislature knew when it adopted these amendments that this court had repeatedly and without exception held this requirement to be essential to exemption under the 1921 act. The presumption is justified that the legislature substituted the summarizing words "educational . . . purposes" for "colleges, academies, . . . public schoolhouses" with the expectation and intention that the new wording should connote the continuance of this requirement. This court expressly so held in Stamford Jewish Center, Inc. v. Stamford,117 Conn. 379, 385, 168 A. 5. Had so radical a change as its elimination been contemplated, it easily could and undoubtedly would have been expressly so provided. Instead, the amended statute "substantially re-enacts . . . the words of the previous" act, as in Hoxie v. New York, N. H. H.R. Co.,82 Conn. 352, 369, 73 A. 754. See 50 Am. Jur. 312, 321. This history of the law is of importance in ascertaining the legislative intent. Chambers v. Lowe,117 Conn. 624, 169 A. 912. It fortifies the conclusion that the change in the statute did not eliminate the first essential to exemption.
I am unable to follow the suggestion in the majority opinion that the use in the 1921 act of "the general word `academy'" gave rise to a "right and duty" in this court to determine whether a devotion to the public use was essential to exemption thereunder which the employment of the more inclusive words "educational . . . purposes" in the present statute *Page 14 does not permit. The majority refers to the significance of the report to the legislature of the 1925 special commission to study exemptions from taxation. The content of that report, however, seems to me to make very clear that the legislature did not intend by the statute as amended to eliminate the first essential above referred to. This report, after reciting a recommended provision for exempting "educational . . . institutions," goes on to state (p. 31) that this clause includes all the classes of institutions covered by the clause, "exclusively occupied as colleges, academies . . . or infirmaries," in the 1921 law. The report states on page 28 that the commission's investigation had "disclosed several tax exempt institutions in this state, which pay dividends, and more where the form of organization makes private gain possible," contrary to the state's exemption policy. On the same page it also states that "The existing statute is amended in the following respects only." Then are enumerated seven items, one of which is the private gain provision, but no mention is made of eliminating the devotion to the public use requirement. In view of these statements, the inclusion in the amended act of the nonprofit limitation and the failure to incorporate the devotion to the public use requirement to my mind have no such significance as is suggested in the majority opinion.
The present wording of 1163 became operative in 1927. On July 27, 1934, this court rendered its decision in Connecticut Junior Republic Assn. v. Litchfield, 119 Conn. 106, 174 A. 304, flatly holding devotion to the public use essential to exemption under subsection (7) of the statute. During the thirteen years which have since intervened, the legislature *Page 15 has made no change in the statute. This is significant and strongly indicates that our interpretation of the statute by that decision was not violative of the intent which the legislature had expressed. The practicalities of the situation cogently suggest why this is so and why this court should not discard its construction of the statute which has had this acquiescent approval. To take an extreme illustration, suppose an expensive New York City girls' finishing school, open only to residents of that city, is transplanted to some impecunious country town in this state where it establishes a million dollar plant and is duly incorporated under our law with the required prohibition against profit. Should such a property be immune from taxation to provide the town with the money necessary to meet such burdens as affording fire protection, maintaining highways and providing for the education of its children?
It is my conclusion that, where, as in the case before us, this court's decisions have established the exemption requirements under this statute and these have been accepted by the taxing authorities, the courts and the legislature for so many years, any such radical modification as the majority decision effects should come by legislative enactment and not by the pronouncement of a change in judicial interpretation of the statute by this court.
For the foregoing reasons I conclude that there was no error.