As I do not agree with the conclusion reached in the opinion of the majority of the court, I hereby state the grounds of my dissent.
The petition was filed in the Superior Court in accordance with the provisions of Section 18 of Chapter 769 of the Public Laws, praying for relief from a tax assessed against the petitioner under Section 12 of said act upon its corporate excess for the years 1912, 1913 and 1914. The petition was denied, the petitioner excepted and the case is before us on its bill of exceptions.
Chapter 769 in Sections 9, 10 and 11 provides for the assessment of a tax of that portion of the intangible property of certain corporations and joint stock companies called their corporate excess. This expression "corporate excess" was a new designation and classification of property. The classification of corporations liable to this tax is effected by the use of the language "every corporation . . . carrying on business for profit in this state."
Two questions arise: First, What is the proper interpretation of the words "carrying on business for profit"? Second, Was the Spouting Rock Beach Association, a corporation, "carrying on business for profit in this State" in the years 1912, 1913 and 1914?
It is to be noted that the language of Section 9 aforesaid creates a new classification of corporations hitherto not known to our statutes. When Chapter 769 was passed in 1912, Chapter 212 of the General Laws was in force which classifies corporations into three classes: I. — Business Corporations; II. — Insurance and Banking *Page 511 Corporations; III. — Literary and Scientific Corporations and Miscellaneous Corporations. If the General Assembly intended by said Section 9 to make Class I. — Business Corporations as such subject to the tax for corporate excess, it would have been both easy and natural to adopt the existing and well-known classification, including with them also similar business corporations incorporated under special charters. The natural inference is that the legislature in not adopting the existing classification intended and did make a new classification of corporations for the purpose of determining their liability to be taxed for corporate excess. This view is supported by the caption preceding Section 9, which is "Taxation of Manufacturing, Mercantile and Miscellaneous Corporations." The petitioner is certainly neither a manufacturing nor a mercantile corporation and, if taxable, under Section 9 it must be under the designation Miscellaneous Corporations. But under Chapter 212, Miscellaneous Corporations is placed under Class III. Obviously the words in the two chapters are used with different meanings, thus further indicating an intentional departure from the classifications of Chapter 212. Moreover the classification in the two chapters shows another significant and basic difference. The classification under Chapter 212 is (speaking in a general way) based upon the character of the dissimilar powers given the different corporations. The class created by Section 9 rests upon the actual activities of the corporation, coupled with and modified by the words "for profit" as expressive of the purpose of such activities. The necessary inquiry as to the latter class is, What is the corporation doing for the purpose of gain? and not, Do its corporate powers make it a business corporation? InR.I. Hospital Trust Co. v. Rhodes, 37 R.I. 141, on page 149, this court stated that the words "every corporation . . . carrying on business for profit in this state" effected a general classification *Page 512 of corporations liable to a tax for corporate excess, and held that in addition to the corporations specially excepted from such taxation by Chapter 769 (that is, business corporations of certain kinds and all corporations in Class III. under Chapter 212), "By implication . . . all corporations not `carrying on business for profit in this state' escape liability for taxation for `corporate excess.'" In other words, it is held that other business corporations other than those specified may be exempt from taxation for corporate excess. It may be readily agreed in the present case that the petitioner, judged by the principles of classification established in Chapter 212 is a business corporation. But that would aid little, if at all, in determining the question now raised, which is to be answered by means of the new classification instituted for the purpose of determining liability for taxation for corporate excess. The rule as to the interpretation of statutes is clearly stated as follows in 26 Am. Eng. Ency. of Law, 598: "(1) General Statement. — In order to ascertain the legislative intention, the primary rule is that a statute is to receive that meaning which the ordinary reading of its language warrants, words not technical being taken in their ordinary, familiar acceptation, with regard to their general and popular use; and the meaning thus arrived at must be adopted when it involves no absurdity, if from a view of the whole law and other laws in pari materia no different legislative intent is apparent.
"(2) Results, Motives and Policy Not Considered. — If the language is clear and admits but one meaning, the legislature should be intended to mean what it has plainly expressed, and there is no room for construction. The plain and sound principle is to declare ita lex scripta est, although so understood the statute leads to absurd and mischievous results, or to consequences not contemplated by the legislature; for courts are not to inquire as to the *Page 513 motive of the legislature, nor to depart from a meaning clearly conveyed in unambiguous words, because the statute, as literally understood, appears to lead to unwise consequences or to contravene public policy. A fortiori, there can be no departure from the terms of the statute where no absurdity or inconvenience will follow from a literal interpretation."
The meaning of the words "carrying on business for profit" is so plain as to leave no room for construction. If we substitute for them the expression "prosecuting or conducting business for the purpose of pecuniary gain" we do not explain the original expression but simply paraphrase it. In R.I. Hospital Trust Co. v. Rhodes, supra, the question considered was whether the United Traction and Electric Co. was "carrying on business for profit in this State." Its powers under its charter were numerous, broad and comprehensive. It clearly was a business corporation. In considering the question of its liability to this peculiar form of taxation, this court took into account only the exercise of its corporate powers actually employed, and held that the exercise of any of its corporate powers in this State constituted the "carrying on of business." It also recognized the fact that the inquiry involved the ascertaining of whether the business was conducted for profit, when it said on page 147: "It is certainly idle to suggest that the activities of the company by whatever name they may be characterized were not carried on `for profit.' The stockholders received eight hundred and fifty thousand dollars a year on its invested capital and the only reasonable inference is that they were maintaining the corporation and carrying on its work for the `profit' or gain afforded thereby and not for pleasure or charity."
Under the authority of the case quoted the Spouting Rock Beach Association is certainly carrying on business *Page 514 in this State. The only question as affecting its liability to be taxed for corporate excess is as to whether it is carrying on business "for profit." The argument ab inconvenienti as related to the difficulty of the tax commissioners ascertaining whether a business is carried on for profit should be given little weight in view of the rule of construction already quoted. Moreover, chapter 769 apparently contemplates investigation along this line in fixing the amount of corporate excess, as may be seen by a careful examination of the provisions of sections 9, 10 and 11 of that chapter.
I think the opinion of the majority inaccurately states the questions involved and also the claim of the petitioner in saying, "Or is it, as claimed by the petitioner, a corporation organized for social purposes and consequently exempt from taxation on its intangible property, called its corporate excess, as provided for by Sec. 47 of said chapter?" I fail to find any claim of exemption under section 47. On the contrary, the claim is that the petitioning corporation is not in the class created by the words "carrying on business . . . for profit."
For the reasons above stated, I am of the opinion that the words "carrying on business . . . for profit" should receive the meaning which the words have when "taken in their ordinary familiar acceptation, with regard to their general and popular use."
The remaining question is one of fact. As the majority opinion quotes the act of incorporation in full and portions of the constitution and by-laws, states the amount of capital stock authorized and the par value of the shares of stock, it is not necessary to re-state these matters. The statement of the corporation for 1914 filed with the Tax Commissioners shows its assets and liabilities to be as follows: *Page 515 Assets.
Real estate and improvements .................... $93,934 14 Cash ............................................ 184 62 Securities ...................................... 11,387 10 Profits and loss ................................ 1,994 14 ___________ $107,500 00
Liabilities.
Capital stock ................................... $107,500 00
Respecting this statement, Frederick H. Paine, assistant treasurer and assistant secretary, testified in his direct examination: "Q. 43. That was all you held to represent the $107,500 worth of capital, stock was that real estate and those securities? A. That is all;" and in cross-examination: "Q. 68. Is the real estate and improvements thereon carried on your books as to that amount and returned to the tax assessors $93,934.14? A. Everything here was taken from the books. Q. 69. It was taken from the books? A. Yes, sir. Q. 70. Then they have actually spent for land and for improvements on the land something over $93,000. Is that correct? A. That is correct, as far as I can tell. Q. 136. Have you some cash on call besides these items? A. We have not, only what little cash may be in the bank. Q. 137. A running account? A. A running account." Just preceding these last two questions the witness had been interrogated as to the items grouped as "securities" in the statement. The statement in evidence shows that no dividends had been paid and none earned. It is obvious from this that the item "profits and loss $1,994.14" represents loss, and that the corporation in the seventeen years of its existence had not been carrying on business at a profit. It is to be reasonably inferred also that the item "securities $11,387.10" represents capital, *Page 516 probably arising from the sale and issuance of capital stock since the purchase of the land and the making of the improvements.
It may be agreed, however, that the fact that the business had been conducted at a loss does not in itself establish the further fact that it was not conducted for profit. Mr. Paine testified in reply to the question, "Is the corporation operated for profit?" A. "It is not." This is, of course, not conclusive, but as the opinion of a well-informed, though presumably an interested witness, it is to be considered. Speaking in general terms the petitioner exercised its corporate powers by buying, holding and improving real estate and thereafter leasing bathing privileges. These bathing privileges it has conducted in the form of a club organization, with the customary restrictions as to membership and the use of club privileges. In this respect its activities have the characteristics of those of a social club, peculiar in the respect that they are conducted on a beach and during the three or four months of each year when in this region out-of-door bathing is ordinarily indulged in. This is the only business carried on by the corporation during the three years when the taxes in question were assessed. The only revenue or income of the corporation was the dividends on its securities, the annual dues of $20 due from each of its seventy-one members, the annual charge of $10 on each bathing house belonging to members (a member being entitled to own one bathhouse for each share held by him), the dues receivable from persons temporarily admitted to the club privileges of the corporation, called subscribers, the amount of which is not in evidence, and the sums received from members paying twenty-five cents for each guest brought in by them. The social character of the petitioner's activities, and their purposes as being similar in kind to those of a purely social club, are clearly evidenced by the constitution and by-laws. The total *Page 517 amount of revenue is not shown. There is an item in the statement for 1914 of total gross receipts of $7,220.25, but this amount may contain proceeds of the sale of stock during that period. The fact that the largest possible annual revenue from membership dues and the charges on the 215 bathhouses which the members are entitled to have (one for each share) is $3,570 makes it probable that such receipts contain such proceeds of sale. Inasmuch as the stockholders are shown to have paid $500 a share for their stock, and to have contributed annually approximately at least the amount of $3,500 for the upkeep and management of the corporation and its property, and never to have received a dividend on their stock, it is difficult to reasonably conclude that they acquired and have continued to hold the stock of this corporation as an investment, or for any other purpose than the enjoyment of the bathing and other privileges and pleasures afforded them as members. This is plainly apparent from the fact that thirty-seven of the seventy-one members each hold four shares of stock and upwards, a large and controlling majority of the stock. And if we consider the purposes of the present activities of the corporation as shown in its constitution and by-laws, and the character of these activities themselves, and the further fact that the corporation by the continued maintenance of these activities for seventeen years has brought to itself no pecuniary profit, but the contrary, it is equally difficult to infer or believe that the corporation has been "carrying on business for profit." I am of the opinion that on the contrary it very clearly appears that the petitioner has not been "carrying on business in this state for profit."
The Presiding Justice of the Superior Court in his oral decision at the close of the testimony after saying that the question was "somewhat close" said "I think they are doing business to make money and if they go on *Page 518 making a profit on the enterprise . . . if an association of this kind for any reason elected to dissolve, and had a big surplus in its treasury, every stockholder would get the benefit of it, and there would be a profit there." I think he misinterpreted the item "Securities" as indicating a surplus, and from this that the corporation had made and was making a profit in the conduct of its business, and, therefore, concluded that the business was conducted to make money. For the same reason I think that the majority opinion is in error in stating that the petitioner has "acquired a surplus." This impression of the existence of a surplus was perhaps derived from the cross-examination of Mr. Paine (questions 126 to 135, inclusive, quoted in the majority opinion). The inquiry related to the different items of the securities. After naming them, a part of Q. 130 is, "Is that all your assets? A. That is all that I am aware of. Q. 132. What do you do with your income from this property? A. We carry it, what there is." The word income from its construction plainly refers to the income from these securities. Question 135 and its answer clearly show this. His answer to Q. 134 that these assets are kept "as a reserve fund for any purpose, anything that happens," might aid the impression of a surplus. But as hereinbefore pointed out the statement filed with the tax commissioners shows beyond question that the corporation has accumulated no surplus in excess of its liabilities.
As has already been stated, my opinion is that the evidence clearly shows that no pecuniary profit has resulted from the business and that there is no surplus, and therefore that the conclusion that the corporation was "doing business to make money" is without support.
Accordingly I am of the opinion that the decision of the Presiding Justice denying the petitioner relief was clearly an error, and that the exception should be sustained, *Page 519 and the case remitted to the Superior Court for a new trial.
VINCENT, J., concurs in dissenting opinion of BAKER, J.