On Motion‘for Rehearing.
In the original disposition, the cause was ordered remanded with instructions to the trial court to ascertain the amount of the taxes shown to be due appellees by appellants for the fiscal year 1918, and render an appropriate judgment thereon. This order was made upon the premise that the amount of said taxes were not ascertainable from the record on appeal.
In the court below appellants alleged the amount of taxes to be $3,993.28, and in their trial answer appellees appear to have admitted that the assessment and levy were regular, apd the amount to be correctly alleged, although denying liability in toto. Upon the trial, also, appellees agreed that the assessment was regularly made, and in their motion for rehearing make this admission:
“This court erred in remanding this c'ause, and there is no excuse for remanding it for the reason that if this court’s conclusions are correct, then the amount of the taxes is alleged by the petition of the appellants in the trial court and admitted by the answer of appellee in the trial court under oath, and the property is fully described in said petition and such description is confessed to be correct by the.answer of ap-pellee under oath.”
In this state of the record, we think the' matter is made so certain as to warrant this court in rendering the judgment which, in our view of the case, should have been rendered below, and this will be done upon our own motion. ,
Accordingly, the judgment heretofore entered will be set aside in so far as the cause was ordered remanded, and judgment will be here rendered that appellants recover of appellees the sum of $3,993.28, with 6 per cent, interest thereon from date of judgment rendered below, with foreclosure of lien on the property assessed, and for all costs.
Appellees’ motion for rehearing is overruled.
On Second Motion for Rehearing.
In connection with both their first and second motions for rehearing, counsel for appellees have filed certain pamphlets which they have designated as “Brief and Argument for Appellee in Support of Motion for Rehearing.” These documents embrace terms and tones which are so disrespectful and inexcusable as would ordinarily require their exclusion froin the files of any court which has a due regard for its dignity and self-respect. The so-called argument is obviously directed, not at the court as such, but more to the individual member of the court writing the original opinion in this cause, and, instead of accomplishing the apparent purpose to avoid ¡offense to the court, emphasizes that offense, and renders it more culpable than if it was directed to the court as a whole. While it is true that the individual member of the court who writes the opinion in any given case is responsible for the language in which the decision is formulated, such decision of the questions disposed of is that of the whole court, unless the contrary is affirmatively shown, and represents the unanimous concurrence of the judges. This is true in the decision of this cause, and it therefore follows as a matter of course that a thinly veiled but persistent intimation that the decision is promulgated by one member of the court, and without the concurrence of the other members, is a reflection upon the court as a whole. This intimation is not the only objectionable feature of the documents mentioned, but is within itself an offense, which the court will not permit to pass unnoticed, in this or any future paper filed here.
This court is not supersensitive, and gentlemen of the bar know that we invite their vigorous argument and forceful criticism, so long as such arguments and criticisms are respectful in language and intent. We ask no more than this; but all of it will be required.
However, out of consideration for the rights of appellees, who, of course, are not responsible for the conduct of their counsel, we have concluded not to strike the objectionable documents from the files of the court, as first intended.
In their motions for rehearing, and *511argument thereon, counsel for appellees complain that this court “entirely misapprehends” the whole case, as well as the record, and that the various findings of the court .are not only “not supported” by the testimony, but are absolutely “contradicted” by the “undisputed” testimony; that there , is “not one word” of testimony to support such findings, etc. If these charges had any basis in fact, there would be some excuse, but no justification, for making them. But they are not based on facts. On the contrary, they are projected upon apparently deliberate misstatements of the holdings and findings of this court, and supported by misstatements purporting to come' from the record. This court is more familiar with the evidence in the record than is counsel, unless counsel has designedly distorted that evidence in urging the motions for rehearing. Although stressed as being of vital importance to the disposition of the case, the matters most bitterly and ill-temperedly presented by counsel are not material to the decision.
Only three witnesses testified upon the trial of this cause, to wit: Mother M. Robert, Sister Wendelimus, and Sister Alcantra, who were at the time president, treasurer, and secretary, respectively, of the Santa Rosa Infirmary Corporation; there is no other testimony in the record, except documentary evidence, consisting of charters and conveyances. It was from this testimony that the statement of the case was made in the original opinion, and a re-examination of the record confirms the accuracy of that statement in all its details. Appellees complain quite bitterly that we have disregarded some of the findings of fact made by the trial court and embraced in the record. We have not, however, disregarded any of those findings where they were supported by any evidence. It was agreed by the parties in the court below “that the sole question for determination in this cause is whether or not the institution owned by defendants is exempt from taxation by reason of the Constitution and laws of the state of Texas,” and in determining this question we consider it our duty to look to every undisputed fact in the record, regardless of the findings of the trial court, and that is what we have endeavored to do. Because of the nature of appellees’ challenge of our statement of the facts, however, we feel obliged to notice their several contentions, in the order presented:
In the original opinion it was stated that—
Appellee “uses its buildings for four specific but related purposes: First, for general hospital purposes; second, the operation of a drug store; third, the conduct of a training school for burses; and, fourth, it houses what is known as St. Luke’s Clinic, which maintains office quarters and waiting room, and has the exclusive use of six beds, in the infirmary building.”
Counsel for appellees bitterly assail this statement, saying, in the course of the 12 or 15 pages devoted thereto, that—
“This, statement in the opinion of the court shows thaj the court entirely misapprehended the record, for this statement conveys the impression that appellee devoted a portion of 'its building to the purpose of a school for the training of nurses generally, presumably for a profit, that appellee operated a regular drug store for the sale of drugs at a profit and'that it rented .out a portion of its building to an organization called St. Luke’s Clinic. The record in the case absolutely contradicts this statement, and the testimony is undisputed. The trial court made no such finding of fact, and we were absolutely astonished when we saw this statement in the opinion of the court.”
They further contend that the statements that appellees operated a “drug store,” from which it sells drugs to doctors and pay patients, but makes no charge to free patients, and conducted a training school for nurses, and housed the St. Luke’s Clinic, for which it collected a nominal rental of $500 a year, are contrary to the undisputed testimony and without any support in the record or the trial court’s findings.
1. The statement that appellees operated a “drug store” was based upon the testimony of Sister Wendelimus, who alone undertook to describe this activity, and who said:
“There is a drug store connected with the hospital. The drug store fills prescriptions for the accommodation of the patients and the doctors, at a small profit.”
And—
“We * * * had a little drug store for the accommodation of the Santa Rosa patients. * * * The doctor would give a prescription, and we would send it down to the drug store to be filled at a small profit, to cover the expenses of carrying on the drug store, and that profit goes to the general fund of the infirmary.”
And again—
“With reference to the drug store, we paid out more for drugs than we got back from patients, because the charity patients were supplied, and the expenses were there, and no income from it.”
2. The statement in the original opinion that appellee conducted a training school for nurses was based upon the testimony of Mother Robert, appellee’s president, that “Santa Rosa Infirmary is an incorporated institution, and is engaged in hospital work and conducting a practical training course for young ladies for the nursing profession” ; that she was “not conversant with the affairs of this school (meaning the Academy of the Incarnate Word), or any other school in San Antonio, except the training school for the nurses attached to Santa Rosa Infirmary.” This is all the testimony we are able to find in the record concerning this activity and none other has been called to our at*512tention. If It Is true, as appellees now contend, in paragraph 37 of their motion for rehearing, that this training school, admittedly housed in the buildings sought to be exempted from taxation, is not conducted by appel-lees, but by a separate and distinct corporation, then the fact furnishes an additional reason for denying the exemption. There is no showing that such corporation or activity is one of pure charity, or any sort of charity, and in the absence of such showing, plus the fact that a part of the buildings in question are occupied by it, renders the whole building subject to taxation. Houston v. Scottish Rite, etc., 111 Tex. 191, 230 S. W. 978. Ap-pellees assert that we stated this training school was conducted by them “presumably for a profit,” but there is no such statement or intimation in. this court’s opinion. The fact is that appellees wholly failed to meet the burden upon it to show the facts relating ■to what this training school is, or how it is operated.
3. It was stated in the original opinion that appellees “house what is known as ‘St Luke’s Clinic,’ which maintains office quarters and waiting room, and has the exclusive use of six beds, in the infirmary building,” and that it is “apparent that this clinic is a separate organization from that of the infirmary, to which it pays a rental of $500 ,a year,” which it appears was a “nominal” charge. Appellees’ counsel attack this statement and say:
“The undisputed testimony showed that the appellees themselves conducted a free clinic in the hospital building which was called St. Luke’s Clinic where surgical operations were performed and treatment given, both absolutely free to patients in cases of eye, ear, nose and throat diseases, and that a contribution of $500 a year as a gift was received by appellees toward helping maintain this department of the hospital. There is not one word in the testimony even tending to show that the department in the hospital known as St. Luke’s Clinic was rented out to any one, and in truth and in fact it never was rented nor even thought of being rented to any organization. There is not one word of testimony in the record that the St. Luke’s Clinic is a separate organization. It is simply a name that was given to that particular department in the hospital and nothing more.”
Appellees again failed to meet the burden resting upon them to show the true character of this clinic or its relation, if any,, to appellees, and the statement in the opinion as to what it was, “apparently,” is based upon the testimony of Sister Wendelimus, the treasurer, and Sister Alcantra, the secretary, of the Santa Rosa Corporation. Sister Wendeiimus testified that—
“The Sisters are in charge of the operating rOom, in charge of the floors, in charge of the wards, in charge of the maternity department, in charge of the clinic, and in charge of the of fice. * * * The Santa Rosa Infirmary is the [ home of the St. Luke’s Clinic. The Santa Rosa | Clinic was established un 1914 by Bishop Shaw, Dr. Burris and the late Dr. Jackson, to give poor eye, ear, nose and throat patients treatment: it was a source of expense to Santa Rosa Infirmary, and considered ah added charity. All patients are received free of charge in that clinic, and are operated on free. The Santa Rosa Infirmary furnishes to the clinic office quarters and a waiting room, and it gives six beds to the exclusive use of St. Luke’s Clinic; it furnishes service of nurses daily, and twice a week the use of the operating room with its full staff. St. Luke’s Clinic gives a little offering of $500 a year, which would not even cover the rental for one month, if we should put pay patients in. The clinic contributes that much a year; from the clinic fund the gift is made. * * * We hajl'six beds set aside exclusively for charity patients for St. Luke’s Clinic, and they made a gift of $500 a year, but that did not maintain it. And when that would be full we would sometimes put patients in the other rooms. The beds of St. Luke’s Clinic were in a ward.”
And Sister Alcantra testified:
“With reference to the clinic, which was mentioned by the previous witness, they pay $500 a year as a contribution towards the hospital, and the doctors in the clinic receive no pay from the hospital. They do not receive pay in some cases from the individuals they treat; that is all free, purely charity. There is a distinction between the clinic and the hospital proper, in that the hospital is open to both pay patients and charity patients, while the clinic is exclusively for charity patients.”
The foregoing constitutes the whole of the testimony relating to the clinic.
4. It was said in the original opinion that—
“During the year in question (1918) 4,471 patients were admitted into the infirmary for treatment, of which 3,482 paid full charges, 436 paid one-half the charges, and 553 paid no charges; in other words, 87% per cent, of the patients paid, and 12% per cent, did not pay.”
Appellees’ counsel petulantly assail this statement, deny it in toto, and say that—
“Laboring under the impression that St. Luke’s Clinic was a separate organization, naturally the learned judge who wrote the opinion left out of his calculation all patients that were treated in St. Luke’s Clinic. Had he paid any attention to the findings of fact made by the trial judge, and had carefully examined the testimony set forth in the statement of facts supporting the findings of fact made by the trial judge, he would have found that the total number of patients was 4,946 that were received into the hospital dui-ing the period beginning on January 1,1919, and ending December 31, 1919, of which number 2,590 were full pay patients, 123 part pay patients and 2,233 absolutely free patients, thus showing that over 45 per centum of the total number of patients received into the hospital were treated absolutely free of any charge whatever.”
The statement so bitterly attacked as being without foundation was taken from this *513testimony of Mother Robert, appellees’ president, that—
“The total number of patients that were cared for in Santa Rosa Infirmary during the year 1918 was 4,471. The total number of patients who paid full rates during 1918 ’was 3,482. 436 others paid half rate. The total number of charity patients cared for by Santa Rosa Infirmary during 1918 was 553.”
No other witness testified upon this issue as to the year 1918. Counsel undertake to substitute the figures relating to the year 1918 with those of 1919, but even in that attempt omit the figures which show that in that year the proportion of pay and free service was 87% to 12% per cent, respectively, as in 1918. Counsel, in the foregoing extract from their argument, refer to and so garble the testimony of Sister Wendelimus as to create the impression that her testimony shows that—
“Over 45 per centum of the total number of patients received into the hospital were treated absolutely free of any charge whatever.”
But counsel very significantly omit the concluding items of Sister Wendelimus’ tabulated statement as follows:
Total number of full pay hospital days.19,707
Total number of part pay hospital days. 1,029
Total number of free hospital days. 2,934
Total number of hospital days..*. 23,720
Approximate daily average of full pay patients.,. 64 Approximate daily average of part pay patients.. 3 Approximate daily number of free patients. 8
Approximate total daily average of patients.. 65
From the foregoing table it appears that of the 23,720 “hospital days” for the year 1919, 12.58 per cent, were devoted to free patients, and 87.42 per cent, to pay patients; whereas, in 1918 the per cent, was 12.50 and 87.50, respectively. And less than one out of every eight patients was free, the same proportion as in 1918. No other witnesses than those quoted testified upon this issue, and all of their testimony is here shown.
5. It was stated in the original opinion that—
“On the amount invested, $125,000, the net profits thus amounted in 1918 to nearly .30 per cent., in 1919 to nearly .28 per cent., and in 1920 to .38 per cent.”
To which counsel for appellees make this reply:
"We ask the question, where does the learned judge of this court, who wrote the opinion of the court in this case, find the evidence supporting his proposition that $120,000 was the value of the property that was conveyed by the Sisters of Charity of the Incarnate Word to the Santa Rosa Infirmary Corporation on the 1st day of March, 1919? If the court will examine the record, they will find that there was no testimony whatever introduced that showed that the property conveyed to the Santa Rosa Infirmary Corporation was worth only $120,000 at the time the same was conveyed, to wit: On March 1, 1919, no issue whatever was made in the trial court as to this, and, so .far as the record is concerned, we are warranted in assuming, and we could have proved by undisputed testimony, that- the property at the time of such conveyance was really. worth at least the sum of $480,000, and that, outside of the $120,000 that was to .be paid by the Santa Rosa Infirmary Corporation, the balance, $360,-000, was a pure donation by the Sisters of Charity of the Incarnate Word to the charitable purposes set forth in the .charter of the Santa Rosa Infirmary. * * * As a matter of fact, if the issue had been raised and should have been deemed material by the trial court, the appellees could and would have proved that the-property was worth more than three times said amount at the time the same was conveyed to the Santa Rosa Infirmary Corporation by the Sisters of Charity of the Incarnate Word.”
It will be noted that, pursuing tbe course which marks their entire argument, counsel have deftly misquoted the opinion so as to show our computation to be based upon the “value” of the property; whereas, as will be seen, it was based upon the “investment.” Ordinarily this subtle substitution would destroy the computation, but it has no such effect here, as will be seen. The statement complained of is based upon the testimony of Mother Robert, appellees’ president, who testified:
“The value of the property of the Santa Rosa Infirmary, when conveyed to the Santa Rosa Infirmary Corporation (March, 1919), was $125,000. The present value (May, 1922) ■ of the property is about $200;000 more or less. * * * The new hospital is to be erected adjoining the present Santa Rosa building, on-West Houston street; the approximate cost of the new hospital building wifi be $250,000, and the approximate cost of the equipment wifi be $50,000 additional. The Mother House of the Congregation of the Sisters of the Incarnate Word has agreed to advance tbe necessary funds, other than the amount on hand in the ‘Building Fund,’ to build and equip the new hospital, and we have agreed to repay such advance. * * * In my judgment, owing to the fact that the buildings are old, a fair market value for them would be from $200,000 to $300,000. This valuation does not include, however, the value of the new building now under construction. * * * Yes, this vendor’s lien note in the sum of $125,000 (the consideration for the conveyance) is held by the Congregation of the Sisters of Charity of the Incarnate Word as a bona fide and binding obligation, and the Congregation of the Sisters of Charity of the Incarnate Word expect due payment.”
There is no other evidence in the record on these issués.
6. It was stated'in the original opinion that none of the infirmary’s current revenues are derived from charitable or other donations or contributions, but solely from charges made against its pay patients. Counsel for appellees assert that there is absolutely *514no testimony to support this statement, which "is squarely contrary to the record,” and then inquire, "Where did the judge who wrote the opinion in this case find the testimony to this effect?” The statement was based upon the testimony of Mother Robert, ap-pellees’ president, and Sister Alcantra, its secretary. The former testified:
“The infirmary has no other source of revenue than that derived from pay patients. * * * The funds derived for the maintenance, upkeep and improvement of the .hospital facilities are derived solely from receipts from pay patients.”
And Sister Alcantra testified that—
“The institution is entirely self-sustaining, and it is not in any way dependent on outside charity, or solicitation from other organizations connected with the church; it is derived solely from pay patients.”
This is all the testimony in the record on the question.
7. Counsel assert that the cases cited by them and analyzed in the original opinion were cited, some of them to show rules of construction, others to show definitions of “charity,” of “public,” etc., and were' not all claimed to be “applicable in all respects to the case at bar.” It is true that many authorities were used in appellees’ brief on these incidental questions, but all those analyzed in the opinion, and no others, were cited under this specific proposition of ap-pellees:
“(G) However, regardless of rules of construction above referred to, the appellees, under the evidence of this case, undisputed and un-contradicted, are ‘institutions of purely public charity,’ and the hospital and infirmary property therefore exempt from taxation under our constitution and statutes.”
As will be seen from the original opinion, the authorities cited under this proposition negative it either directly or by analogy.
Appellees’ second motion for rehearing is overruled.