Concurrence in the decision in Temple Lodge v. Tierney, 37 N.M. 178,20 P.2d 280, just decided, brings me inevitably to a dissent in this case. There is no occasion for a stricter rule of construction in the one case than the other. In the Temple Lodge Case, the trial court found the use to be for charitable purposes, but not primarily so. In the case at bar, the trial court finds that the property is used for educational purposes, but not primarily for such purpose. We have held in the Temple Lodge Case that the Constitution makers manifested no intention that the phrase "all property used for educational or charitable purposes" should be limited by the word "exclusively" contained in the territorial exemption statute, but that the omission of this qualifying word indicates an intention to liberalize.
It is said in the opinion by the majority: "It is urged that, where the educational institution itself affords to its students these facilities — dormitories, dining halls, study halls, recreation halls — the uses are educational; as much so as in the case of classrooms, lecture halls, and laboratories. Authorities support the contention and we do not question it." *Page 162
I am not moved solely by the fact that many decisions, including our own, furnish a reason for exemptions, the quid pro quo theory, but, if it be conceded that such property under ownership and use by an educational institution is used for educational purposes, I am unable to discover that the characterof the use is affected by ownership by appellant or an intent in the Constitution to exclude such property so used from the exemption provision merely because not owned by the University, since ownership is not therein made a criterion. And particularly is this so in view of the findings of the court to the effect that an existing University regulation requires that all nonresident women students live either in a University dormitory or in one of these chapter houses, and that this rule is essential to a proper supervision of women students, and that the dormitory facilities are not sufficient to accommodate the women students, and would have to be increased except for this and similar sorority houses.
I deem it proper in support of my view to comment on the remark in the last paragraph of the majority opinion, that exemption has been usually and frequently denied. The note in 52 L.R.A. (N.S.) 995, there cited, discloses a reason for this. The note writer, after reviewing the decision in Kappa Kappa Gamma House Ass'n v. Pearcy, says: "The other cases involve the construction of statutes providing for the exemption of buildings usedexclusively for literary, scientific or educational purposes, none of them including dormitory purposes, and as the dominantuse was found to be to furnish private boarding houses to the members of the fraternity, the statute was held not to apply." (Italics mine.)
For instance, in New York, the Tax Law (Consol. Laws, c. 60 [section 4, subd. 7]) provides that: "The real property of a corporation or association organized exclusively for the moral or mental improvement of men or women, or for * * * educational, scientific, literary, * * * library * * * purposes, * * * or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes, * * * shall be exempt from taxation."
Under that act, although the court remarked that the property was to some extent, at least, used "for carrying out thereupon" one or more of the purposes specified in the statute, it was not exempt, because this fact did not answer the requirement of the statute unless it also appears that the building, as a whole, was "used exclusively for carrying out thereupon one or more of such purposes," and calls attention to the definition the lexicographers give of the adverb "exclusively" to mean "with exclusion of all others; without admission of others to participation." The court adopted also the rule of strict construction.
The Illinois Supreme Court in Knox College v. Board of Review,308 Ill. 160, 139 N.E. 56, 35 A.L.R. 1041, was dealing with a statute which exempts from taxation all property usedexclusively for school purposes.
I can readily appreciate the necessity under such enactments, that the dominant use be *Page 163 determined as an incident to discovery of exclusive use for educational purposes. In the Temple Lodge Case, we regarded the dropping of the word "exclusively" out of the picture by the Constitution makers as significant.
The majority regard the Kansas case cited by appellant as of no weight as precedent or authority. It must be admitted that our Constitution does not specifically mention dormitories, nevertheless, the court said: "It was the evident purpose of the Legislature to encourage the construction and use of dormitories so as to provide homes for the nonresident students at colleges and universities. No reason is seen why this beneficent purpose of the Legislature may not be effectually carried out."
As we have seen from the findings of the court, it is apparent that our University, apparently with the acquiescence of controlling authorities, has considered the construction and use of dormitories to provide homes for nonresident women students as a beneficent purpose. The fact that this educational institution has stamped dormitories as appropriate adjuncts to its general purposes is not, I believe, controlling upon the court, but is strongly persuasive that such a building so devoted is used for educational purposes, within the meaning of our exemption law.
For the reasons stated, I dissent.