Loyal Order of Moose, 259 v. County Board of Equalization of Salt Lake County

OAKS, Justice

(concurring):

I concur in the opinion of the Court, and write to elaborate additional considerations bearing on this important decision.

Our Constitution directs that property “used exclusively for either religious worship or charitable purposes ... shall be exempt from taxation.” Utah Const, art. XIII, § 2. This decision represents no retreat from that command and no default from our duty to enforce it.

Instead, we confront the fact that in 1911 Salt Lake Lodge No. 85, B.P.O.E. v. Groesbeck, 40 Utah 1, 120 P. 192 (1911), erroneously interpreted that provision as permitting exemption of property used partially but not entirely for exempt purposes.1 That decision allowed our tax exemption law to drift from the verbal moorings of the Constitution until today the familiar word “exclusively” has lost its literal meaning and has come to mean something entirely different — “primarily.”

As a result, we have had confusion in the law governing tax exemption of property used partially but not exclusively for religious or charitable purposes. In the face of inconsistent rulings and judicial opinions without a governing rationale, religious and charitable organizations cannot be certain what level or proportion of nonexempt activities will cause the loss of an exemption on particular property, and neither can lawyers, legislators, administrators, and judges. This uncertainty makes tax administration expensive for everyone. Inconsistent results discredit the property tax exemption for religious and charitable purposes, and could contribute to its eventual dilution or demise. The legislature cannot adopt corrective legislation, since it has no power to alter this Court’s interpretation of the Constitution.

Of even greater concern in the long run is the fact that any significant deviation from the commonly accepted meaning of any nontechnical word in the Constitution casts doubt on the commonly accepted meaning of nontechnical words in every other provision. The Constitution was adopted and amended by the sovereign power of the people of this state. It belongs to the people. The people should be able to read its provisions in reliance on the fact that nontechnical words with commonly accepted meanings will be given effect according to those meanings. As Chief Justice John Marshall declared in Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 188, 6 L.Ed. 23 (1824), “the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.”2

*267If constitutional interpretation is to be governed by a rule of law rather than a rule of men, judges must follow the commonly accepted meaning of words that have such meaning. If a word incorporated into the Constitution loses its commonly accepted meaning and serves only as a starting point for judicial improvisation, that document cannot be said to express the will of the people except in the most tenuous sense.3

Admittedly, judges have not always followed the commonly accepted meaning of nontechnical words in constitutional provisions (in this state or elsewhere), and the rules those decisions have established in our constitutional law may be ingrained beyond recall except by constitutional amendment. But the principle discussed here is a worthy ideal and an appropriate basis of action for the future. It is also an appropriate basis for a corrective decision whenever this would not cause excessive disruption. That is so here, since the new interpretation can be applied prospectively and will not become effective until after an adequate period of notice to those affected by it.

By this decision, we increase predictability and reliability in interpreting every provision of the Constitution. If our decision on this tax exemption provision is contrary to the will of the people of this state, they can exercise their sovereign power to amend the provision we have construed. In that case, the meaning of the language in the new provision will be more predictable and more reliable under the precedent of this decision.

. As explained in the Court’s opinion, Groes-beck erred in permitting an exemption of an entire building that was used for exempt and nonexempt purposes, without separation. The above criticism does not refer to the earlier decision in Parker v. Quinn, 23 Utah 332, 64 P. 961 (1901), that a clearly separable portion of a building used exclusively for the prescribed purposes may be exempt.

. Consequently, the traditional view maintains that terms used in a constitution should be interpreted in the sense most obvious to the common understanding of the people who adopted it. State v. Butler, 70 Fla. 102, 133, 69 So. 771, 780 (1915); Bishop v. State, 149 Ind. 223, 230, 48 N.E. 1038, 1040 (1898); 1 T. Cooley, A Treatise on the Constitutional Limitations, at 124-36 (8th ed. 1927).

. The process of constitutional interpretation is more complicated where a constitutional provision uses words or phrases without commonly accepted meaning among the people who adopted it. Examples of such words or phrases include “due process of law,” “habeas corpus,” and “charity.” With such terms as these, the Court has more latitude for interpretation. It is well settled that the first resource of interpretation is the content of the common law. Ex Parte Grossman, 267 U.S. 87, 108-09, 45 S.Ct. 332, 332-333, 69 L.Ed. 527 (1925); United States v. Wong Kim Ark, 169 U.S. 649, 654, 18 S.Ct. 456, 459, 42 L.Ed. 890 (1898). Beyond that common ground lies a fundamental conflict on which no position need be taken for purposes of this case. E.g., compare Grey, “Do We Have an Unwritten Constitution?” 27 Stan. L.Rev. 703 (1975), with R. Berger, Government by Judiciary (1977).

For a decision applying the generally accepted meaning of nontechnical terms see Holden v. N.L. Industries, Inc., Utah, 629 P.2d 428 (1981) (“only”). For a decision applying techniques of constitutional construction to a term used in a technical sense, see Hansen v. State Retirement Board, Utah, 652 P.2d 1332 (1982) (“state officers”).