Bishop v. Gulick

Dissenting Opinion of

Dole, J.

This is an appeal from the decision of Mr. Justice Bickerton, jury having been waived, based upon the decision of the Court in Smith vs. Kockemann, 3 Hawn., 320. The majority of this Court, without stating very definitely whether they rely upon that authority, base their conclusions mainly upon the ground, that because a “ private school ” cannot own property, therefore no property can belong, using the language of the statute, to such a school, and the statutory exemption in favor of private schools has no effect.

I am unable to adopt this construction of the statute, because, as it seems to me, the intent of the legislature to exempt all property devoted to the maintenance of private schools is perfectly obvious. To insist upon giving the word “belonging’» the meaning of owning, in the sense of having a legal title,, defeats the plain intent of the Legislature, and is unnecessary, the word being capable of other constructions which will carry out the evident intent of the Legislature. For instance, the word belonging is familiar to legal phraseology in a more general sense, and is very commonly used in conveyancing with the meaning of appertaining or relating to, which is probably the meaning with which it was used by the legislature in the statute in question. “ The interpretation which renders a statute null and void cannot be admitted; it is an absurdity to suppose that *634after it is reduced to terms, it means nothing. It ought to be interpreted in such a manner, as that it may have effect, and not to be found vain and illusive.” (Vattel’s 15th Rule.)

Other grounds for believing that the legislature used the word in this sense, are afforded by the context. In Section 1 of Article IV. of Chapter II. of the “ Act to Organize the Executive Department,” passed April 27, 1846, the word “pertaining” is used in a similar connection, i.e.: “The chattel property enumerated in this Article pertaining to private individuals, * * * * shall be liable to taxation,” etc. Section 485 of the Civil Code, which was the existing law under which the decision in the Smith vs. Kockemann case was made, after providing for the exemption of “real property belonging to the King,” etc., contains the following sentence in which the word “ relating,” is, to all appearance, used synonymously with the word “ belonging,” in the earlier part of the Section : “ Personal property relating to the same persons and objects is also exempt.” The present statute has changed the word “relating” to “ belonging ” in the latter provision in regard to personal property. This free use of the word “ belonging ” interchangeably with its synonyms “relating” and “pertaining” points irresistibly to the conclusion that the legislature used it in the sense expressed by its synonyms, “ relating ” and “ pertaining.”

The context supports this view, even more forcibly, upon still another ground. All of the statutes upon exemption, from and after the year 1882, provide that personal property “belonging” •to the Queen is exempt from taxes. The only Queens known in the. history of this country have been the wives of reigning Kings, and the position of queen was in such manner filled and existing upon the occasions when this provision was passed and revised. Such a queen, being a married woman, was by the statute existing at the time the exempting statute was enacted and ever since until the year 1888, rendered incapable of owning personal property; it may be truly said that she was as incapable as a “ private school ” of owning such property. The legislature must have known of this, having previously passed the *635statute affecting the status of married women, and yet they enacted the provision that personal property “belonging” both to the Queen and to private schools should be exempt from taxes; and they kept this exemption on the statute books until the year 1888, reiterating it during that period by the tax law passed in 1886. This may be reasonably argued to be a legislative construction, or a construction from usage, of the sense in which the word “belonging” has been used in these statutes. It is an established principle of interpretation, that long continued acceptation of a certain meaning of a doubtful word or phrase in statutes and the conduct of affairs agreeably to such meaning, is evidence of the intent of the lawmakers.

The Crown lands are exempted from taxation presumably under the provision of law exempting “ property belonging to the King; ” but the legal title to the Crown lands is in the Crown Commissioners, who are trustees created by law for this purpose, and who alone have the power to lease the same, and in case of sale of such lands as may be authorized by the legislature, alone execute the necessary conveyances. The King has only a life interest in the revenues of these lands and no right of possession to the same; therefore if the principle laid down by the majority decision in this case is applied to the Crown lands, they would be liable to taxation as they do not belong to the King and are not otherwise exempted. The same principle would render liable to taxation all of the property placed by His Majesty in the hands of trustees for the payment of the Aki claim and other debts, during the continuance of the trust, as the legal title of such property is not in His Majesty but in his trustees. It may be further argued as evidence of the meaning with which the legislature used this word, that when this law was first passed and for a long time afterwards, an incorporated school,” “religious society,” “house of education,” “literary or benevolent institution,” was the exception, while the existence of such enterprises in an unincorporated status was common.

In the case of Smith vs. Kockemann, above referred to, it does not appear that the Roman Catholic Church in the Hawaiian *636Islands was at that time a corporation. The fact that such a question was not raised in that case is strong negative testimony that the construction of the word “belonging” in its more general sense was the usage at the time. It is still more to the point that the Court in that case close their opinion with the following sentence, which in its last four words offers further testimony to the general sense in which the word “ belonging ” was then understood : “ But in our view it is clear that whatever property can be legally exempted must be set apart and become part and parcel of the object itself, or dedicated for its promotion.” These words, “dedicated for its promotion,” express a reasonable and intelligent construction of the law, and if now adopted would be found inconsistent with the decision appealed from.

It is understood that the exemption claimed is this ease refers only to that portion of the property of the Bishop Estate not directly occupied by the Kamehameha Schools in the way of school buildings and grounds and furniture. A number of authorities are referred to, both in the majority decision and the brief of defendant’s counsel, to show that even if it were admitted that the Kamehameha School enterprise might have the benefit of the law of exemption, it could not be applied to any of the property appropriated for the maintenance of the schools, except that portion actually occupied and in use as school buildings, grounds and furniture.

I have examined carefully every available authority so referred to and find that only one case — that of N. W. University vs. People, 80 Ill., 333, quoted in the brief of defendant’s counsel— is decided under the provisions of a statute similar to ours. All the rest are under statutes of exemption which, unlike the provision of the Hawaiian law referring to schools, expressly limit the exemption to certain specified property. For instance, the Massachusetts statute, under which the cases of Trustees of the Good Shepherd vs. Boston, 120 Mass., 212, and Third Cong. Soc. vs. Springfield, N. E. Rep., 9th October, 1888, referred to in the opinion of the majority of the Court, and the cases of Wesleyan *637Academy vs. Wilbraham, 99 Mass., 599, and Pierce vs. Cambridge, 2 Cush., 611, referred to by defendant’s counsel, were decided, reads as follows ; “ The personal property of literary, benevolent, charitable and scientific institutions within the commonwealth, and the real estate belonging to such institutions, occupied by them or their officers for the purpose for which they were incorporated,” shall be exempt from taxation. General Statutes of Mass., Chapter XI., Section 5. And in Chapter XXXII., Section 5, referring to similar institutions: “ Their estate shall not be exempted from taxation in any case where * * * any portion of such estate is used or appropriated for other than educational, literary, benevolent, scientific, charitable or religious purposes.” The case of First M. E. Church vs. Chicago, 26 Ill., 482, referred to by defendant’s counsel, was decided under a statute which exempted only such real estate as was actually occupied by such institution, or held by them and not used for profit. The two New Jersey cases — First R. D. Church vs. Lyon, 32 N. J. Law, 360, and Nevin vs. Krollman, 38 Id., 323, referred, to by defendant’s counsel, were decided under a statute that excepted “ the endowment or fund of any religious society ” from taxation. Under this provision the plaintiffs in the first case claimed that a parsonage belonging to the church was exempt, but not being able to convince the Court that real estate was an “ endowment or fund,” judgment went against them; the other case was disposed of on a similar point. In the case of Church of the Redeemer vs. Axtell, 41 Id., 117, the law exempted “buildings erected and used for religious purposes; ” and the plaintiff contended that because the parsonage was built on the same lot with the church, it was therefore exempt from taxation, which view w'as naturally not adopted by the Court. The case of Library Association vs. Pelton, 36 Ohio State, 258, referred to by defendant’s counsel, was decided under a law which makes the following limited exemption of real estate: All buildings belonging to institutions of purely public charity, together with the land actually occupied by such institutions, not leased or otherwise used with a view to profit.” *638Almost the same status existed with regard to the case of Tucker vs. Ferguson, also quoted in the brief of defendant’s counsel. The case of St. Andrew’s Hospital vs. Shearsmith, 19 Q. B., 624, referred to in the majority opinion, decides that a hospital that collects fees from well-to-do patients was not a charitable institution within the statute exempting charitable institutions from taxes.

The one case of all that have been referred to as sustaining the defendant’s contention, which was decided under a similar statute to ours, is that of N. W. University vs. People, 80 Ill., 333, above noted; but unfortunately for the defendant’s position this case -was disposed of purely on the ground that the General Assembly or Legislature were not competent “to exempt from taxation property owned by educational, religious or charitable corporations which was not of itself used directly in aid of the purposes for which the corporations were created, but which was held for profit merely, although the. profits were to be devoted to the proper purposes of the corporation,” because the powers of the General Assembly were limited by the following words of the Constitution : “The property of the State and counties, both real and personal, and such other property as the General Assembly may deem necessary for schools, religious and charitable purposes, may be exempted from taxation.” The statutory provision which is thus declared unconstitutional, reads : “All property of whatever kind or description, belonging to or owned by said corporations, shall be forever free from taxation for any and all purposes.” The Court admitted that the words of the statute were “ broad enough to comprehend ” the property in question, which was in the nature of lands and town lots. This statute, like the Hawaiian provision of law exempting the property of schools from taxation, is sweeping in its provisions, containing no limiting words; and had it not been for the limiting words, may deem necessary,” in the Constitution, conferring upon the General Assembly the power to make exemptions by law from taxation, the decision of that case would have been the other way. Under the circumstances, it *639seems to me that this case is an authority for the plaintiffs’ contention in the issue before this Court. The Court may not make limitations where the law has made none, without infringing upon the prerogative of the Legislature.

These cases quoted as above set forth, in support of the defendant’s position before this Court, do not seem to me to be in point, for the reason given, that they are based upon statutes totally dissimilar to ours.

The plaintiffs’ counsel correctly argues that Smith vs. Koclcemann is no precedent for the decision appealed from; he might have gone further and claimed that it was authority for his own contention, for the law of exemption under which that decision was rendered, excepted from its provisions all property of religious societies except church sites and perhaps burying grounds, while it made no exception in the case of schools, but exempted all real and personal property “belonging” and “relating” thereto. “ When a statute makes an exception from its provisions, it is to be presumed that all the exceptions were made that were intended.” McDonald vs. Holmes, 45 Conn., 157.

I am therefore compelled to dissent from the opinion of the majority of the Court, both on the construction of the statute in question, and upon its application.