There is no doubt that the issue in this case is one of fact. The trial court held that the Homme Children's Home, operated by the plaintiff *Page 205 religious corporation, is an orphanage, so as to be entitled to the exemptions afforded by sec. 70.11 (15), Stats.
This section of the statutes was substantially the same from the time this institution was founded in 1908 until amended in 1945. It provided exemption from taxation for:
"(15) All the real and personal property of any orphan asylum or orphan home in this state, and the real estate of the Home of the Friendless in the city of Milwaukee, not exceeding one lot, while the same are actually used for such homes. For the purposes of this subsection the term `orphan home' shall include the Wisconsin Home and Farm School, at Dousman."
The 1945 legislature, by ch. 386, amended the statute to provide as follows:
"(15) All the real and personal property of any children's institution licensed for the care of dependent, neglected or delinquent children under sections 48.35 to 48.42 while the same is actually used for such purposes, and the real estate of the Home of the Friendless in the city of Milwaukee, not exceeding one lot, while the same is actually used for such home."
It is conceded by appellants that since the 1945 amendment respondent's property is literally exempt.
Prior to 1938 the town boards of the town of Wittenberg never levied any assessment. The only years in dispute are those from 1938 to 1945.
The stipulated facts upon which the case was submitted contain no data as to the type of children cared for by the Home from the time it was founded in about 1908 until 1938.
The children from the Home were sent to public schools from 1940 to 1945. The state paid tuition for all of those from Wisconsin; the plaintiff paid for out-of-state children.
The income of the Home came from four sources. (There was some variance in the figures, but 1942 is adequate to typify the entire period.) They were: (1) Earnings from *Page 206 the farm, fifteen per cent; (2) contributions by plaintiff corporation, sixteen per cent; (3) contributions by counties from which children were committed and from parents, thirty-six per cent; and (4) contributions from private benefactors, thirty-three per cent. There was no breakdown of contributions from parents and those from counties.
During the years involved plaintiff was licensed as a home for dependent children.
The trial court held that during this period the Homme Children's Home was an orphan's home entitled to the exemption. This finding of the trial court must stand unless contrary to the great weight and clear preponderance of the evidence.
The decision of the trial court is supported by the practical construction of the statute by the town board in exempting the Home from taxation for thirty years prior to 1938.
The rule is stated in 59 C.J., Statutes, p. 1024, sec. 608:
"A practicable construction of a statute is not conclusive on the courts, but if unvarying for a long period of time, it should be disregarded only for the most cogent reasons."
This rule was adopted very early by the Wisconsin court.
"The general understanding of a law and constant practice under it for so long a period by all the officers of government whose duty it has been to execute it, unquestioned by any suit brought or public or private action instituted to test or settle the construction in the courts, ought to be very strong, if not conclusive, evidence of its true meaning and application, and that they are such as it has thus received." Scanlan v. Childs (1873), 33 Wis. 663,666.
In Wright v. Forrestal (1886), 65 Wis. 341, 348, 349,27 N.W. 52, which involved the validity of tax certificates, the court said:
"The construction given to a statute by the body of men or officers who are directed to act upon it is always entitled *Page 207 to weight, and their construction should not be overridden by the courts, unless it be contrary to the clearly expressed meaning of the law."
In considering construction of a statute in Marinette, T. W. R. Co. v. Railroad Comm. (1928), 195 Wis. 462, 465,218 N.W. 724, Justice OWEN, speaking for the court, said:
"If we were presently disposed to consider the proper construction of the statute doubtful, this practical construction of the statute long followed by the railroad commission with the apparent acquiescence of the legislature as well as those affected thereby, would be entitled to great weight." See also Estate of Week (1919), 169 Wis. 316,172 N.W. 732; State ex rel. Board of Regents v. Zimmerman (1924),183 Wis. 132, 197 N.W. 823; State v. Johnson (1925),186 Wis. 59, 202 N.W. 319.
At the turn of the century institutions such as plaintiff's were primarily concerned with the care of "orphans." "Neglected children" and "dependent children" were terms which were not in use. The children of a needy or indigent or reckless parent were themselves considered indigents, and cared for at all, it was probably at the hands of some individual Samaritan or with poor relief administered by some town chairman according to his own lights, which extended only to the most essential material wants and with emphasis on economy for the township.
The removal of a child from the custody of neglectful parents for the child's moral welfare as well as physical well-being is largely a social development of the last thirty years.
For all practical purposes a child who has been removed from the custody of his parents because of their unfitness, or one who has been abandoned by irresponsible parents, is as much an orphan as the child whose parents are dead.
It is true that the state, through threat of imprisonment for nonsupport, may wring an occasional contribution from *Page 208 a reluctant father. This does not, however, in my opinion, alter the status of the child nor of the institution which furnishes principal care for such child.
This growth in the field of social work and extension of public and charitable assistance to the neglected and dependent child has been gradual. Secs. 48.35 to 48.42, Stats., known as the Children's Code, were adopted in 1931 and thereafter.
The practical association of destitute children and orphans in the same class in actual treatment was further recognized by the legislature in the amendment to sec. 70.11 (15), Stats., in 1945. Such action on the part of the legislature did not constitute a change of policy with respect to exemptions, but only an utterance of a policy long in practice.
The judgment of the trial court is well supported by the facts and should be affirmed.
I am authorized to say that Mr. Chief Justice ROSENBERRY concurs in this opinion.