dissenting.
I respectfully dissent from the majority opinion herein. I appreciate that the issue involved is a close one, but suggest that the majority opinion goes further than we have in the past and opens the avenues of tax exemption that were never intended. If this opinion stands, every nursing home in the state, by incorporating as a nonprofit corporation, can avoid taxation and still drain off all profit in salaries and expenses.
We should not lose sight of the fact that in interpreting and applying constitutional and statutory provisions relating to exemption from taxation, the rule of strict construction applies and the burden is on the taxpayer to show that the property involved is clearly within the claimed exemption.
The constitutional provision involved herein, Article VIII, section 2, provides in part as follows: “The Legislature by general law may exempt * * * property owned and used exclusively for educational, religiousi, charitable, or cemetery purposes, when such property is not owned or used for financial gain or profit to either the owner or user.”
*838It is to be noted that the Legislature may only provide exemption if the property is owned and used “exclusively” for educational, religious, charitable, or cemetery purposes. The word “exclusively” is one of general understanding.
In Todd v. County of Box Butte, 169 Neb. 311, 99 N. W. 2d 245, this court said: “Statutes exempting property from taxation are to be strictly construed, and one contending that his property is exempt from such tax must show clearly that he is within the exceptions provided by statute.”
As the majority opinion emphasizes, the primary or dominant use and not an incidental use is- controlling to exempt property from taxation. The majority opinion determines that the primary or dominant use herein is not for religious purposes, but does determine it to be charitable. I have no quarrel with the definition of charity therein, but suggest that the intent of the law is not fo exempt every nonprofit corporation which may be of some benefit to mankind. It is difficult to see how this case can be distinguished from County of Douglas v. OEA Senior Citizens, Inc., 172 Neb. 696, 111 N. W. 2d 719, in which we denied tax exemption. The corporation involved in that case was a nonprofit corporation, not operating for gain or profit, which had built a housing facility for elderly people, mostly retired teachers.
There can be no doubt that in the instant case, as well as in the OEA case, some of the use and purpose of the organization was charitable, and that all of it is highly worthy and commendable, but it does not necessarily follow that it can be determined that the use may be denominated “exclusively” charitable. In the instant case, all persons entering the homes pay, and most of the private residents are charged somewhat more than the actual cost, while in the OEA case the evidence indicated that the charges to residents were no more than the actual costs involved.
In the instant case, the society makes no contribution *839and indigent residents who do not have families who can or will contribute are supported in the home by the county welfare department. In the OEA case, if an occupant became unable to pay in whole or in part, the occupant was permitted to remain, and the deficiency was made up by the Omaha Education Association or by contributions from other sources.
In the instant case, the personnel operating the home are paid at least the going rate in the community for the type of service rendered, and it must be assumed that the same situation was true in the OEA case.
In the instant case, the charges are the same as those made by nursing homes in the vicinity which operate for profit. Tax exemption would make these institutions more competitive than the private operators with whom they compete, and could eliminate those operators. In the OEA case, the charges were set at actual expense, so far as it was possible to do so, and the clientele to be served was limited.
It is to be noted that in the instant case, the institutions expect to and do operate at a profit and are able to forward funds to help other institutions maintained by the Evangelical Lutheran Good Samaritan Society who may need help. In addition, the homes operating in Gage County pay the parent corporation for services furnished to them, including certain bookkeeping services handled from a central office outside Nebraska.
Finally, while these homes are operated by a North Dakota corporation, they are locally built and maintained. The society contributes nothing to their construction, operation, or maintenance. These institutions are primarily homes for the elderly, and any charitable use is incidental. If they are to be tax exempt, every home for the elderly operated by a nonprofit corporation, including the OEA home, is likewise tax exempt.