poses. It follows, then, that, before prop- | Indianapolis v. Grand Lodge of Indiana, 25 erty can be exempted from taxation, it must Ind. 518, it is held that an institution which not only be used for some of the purposes extends charity to its own members only is specified in the Constitution, but must be a charitable institution, within the meaning specially authorized by law. Now, the stat- of the law exempting such institutions from ute which undertakes to exempt property taxation, the court saying: "The third par from taxation, and by which the questions agraph of the answer presents the question presented in this case must be solved, was whether that is a charitable institution, in passed by the territorial legislature in 1854, the sense of the statute, which confines its and, so far as not inconsistent with the Con- benefactions to those who have become memstitution, continued in force by section 7 of bers of the Masonic order, having paid the article 18 of that instrument, and is now sec- fees commonly required for that purpose. tion 2732 of Hill's Annotated Laws. By sub- We think that this question must be andivision 3 of this section, it is provided that swered in the affirmative. It is not essential "the personal property of all literary, be- to charity that it shall be universal. That nevolent, charitable, and scientific institu- an institution limits the dispensation of its tions, incorporated within this state, and such blessings to one sex, or to the inhabitants real estate belonging to such institutions as of a particular city or district, or to the shall be actually occupied for the purposes membership of a particular religious or secufor which they were incorporated," shall be lar organization, does not, we think, deprive exempt from taxation. Under these consti- it either in legal or popular apprehension of tutional and statutory provisions, it is mani- the character of a charitable institution. If fest that real property, to be exempt from that only be charity which relieves human taxation, must belong to some incorporated want, without discriminating amongst those literary, benevolent, charitable, or scientific who need relief, then indeed it is a rarer institution, and must be actually occupied virtue than has been supposed. And if one for literary, benevolent, charitable, or scien- organization may confine itself to a sex, or tific purposes. church, or city, why not to a given fraterThe contention for the defendant is that the nity? So narrow a definition of charity as real property upon which the tax in question the third paragraph presupposes is not, that was laid is not exempt from taxation, for the we are aware of, ever attached to it, and we reasons (1) that plaintiff is not a charitable are not at liberty to circumscribe the effect institution, within the meaning of the law, of the statute, and defeat its intention, by because its benefits are confined to its own affixing to its terms an unusually limited members and their families; and (2) that the meaning." So also, in Petersburg v. Petersproperty assessed is not actually occupied for burg Bener. Mechanics' Asso. 78 Va. 431, it the purpose for which it was incorporated. was held that an association which applies Upon the first point the argument of his its revenues to the payment of current excounsel is that a charitable institution, with- penses, and to the relief of its indigent memin the meaning of the exemption law, is one bers and the families of such as have died in whose benefits are extended to the public gen- need, was a charitable institution. "These erally, or some indefinite portion thereof, are charitable purposes," says the court, "and without regard to the relation the recipient the relief afforded is none the less charity bemay bear to the members of the particular cause confined to members of the association organization or society, or to the fees or dues and the families of deceased members. paid. But the principal authorities relied is not essential to charity that it shall be upon by him in support of this position were universal." And, again, in Book Agents of determinations of controversies arising un- M. E. Church, South, v. Hinton, 92 Tenn. der constitutional or legislative enactments 188, 19 L. R. A. 289, it was held that a corexempting from taxation property belong- poration created as an arm or agency of the ing to institutions devoted to "purely public Methodist Church, and charged with the duty charity," which it is held does not include of manufacturing and distributing books, charitable institutions whose benevolence is periodicals, etc., in the interest and under confined to their own members, or persons the auspices of the church, and thereby raishaving some particular relationship to such ing a fund with which to support its wornmembers. Philadelphia v. Masonic Home, 160 out preachers and their families, is a relig Pa. 572, 23 L. R. A. 545; Swift v. Beneficial ious and charitable institution, within the Soc. 73 Pa. 362; Delaware County Inst. of S. meaning of the provision of the Constitution v. Delaware County, 94 Pa. 163; Donohugh's exempting such institutions from taxation. App. 86 Pa. 306; Mitchell v. Franklin County From an examination of this question and Treasurer, 25 Ohio St. 144; Babb v. Reed, 5 all the authorities within our reach bearing Rawle, 151, 28 Am. Dec. 650; Burd Orphan upon it, we take the result to be that an inAsylum v. Upper Darby School Dist. 90 Pa. stitution organized for benevolent and char21; Hennepin County v. Brotherhood of C. of itable purposes, free from any element of G. 27 Minn. 460, 38 Am. Rep. 298. But un- private or corporate gain, and which devotes der constitutional or legislative provisions its entire revenue to the payment of current which, like ours, provide for the exemption expenses and the relief of the poor and needy, of certain property belonging to "charitable is a charitable institution, within the meaninstitutions," and used for charitable pur-ing of the law, although it may confine its poses, it is believed that such an institution benefits primarily to its own members and is entitled to the benefit of the exemption, their families.

It

although its benefactions are confined to its But, whether the plaintiff is such an inown members or their families. Thus, institution or not, we are clear the property in

question is not exempt from taxation, be- | Lone Star Chapter No. 6 R. A. M. 68 Tex. cause it is not actually occupied for charita- 698; Proprietors of South Congre. Meeting-house ble purposes. Subdivision 3 of section 2732, v. Lowell, 1 Met. 538; Wyman v. St. Louis, supra, under which the exemption is claimed, 17 Mo. 336; State v. Ross, 24 N. J. L. 498; exempts only such real property belonging Massenburg v. Grand Lodge F. & A. M. 81 to incorporated literary, benevolent, charita- Ga. 212; Ft. Des Moines Lodge No. 25 I. O. ble, or scientific institutions as shall be act- 0. F. v. Polk County, 56 Iowa, 34. See also ually occupied for the purposes for which notes to Petersburg v. Petersburg Bener. Methey were incorporated. It does not exempt chanics' Asso. 8 Am. & Eng. Corp. Cas. 488; from taxation the enumerated institutions as and Book Agents of M. E. Church, South, v. such, or real estate simply because it belongs Hinton (Tenn.) 19 L. R. A. 289. to such institutions, or even because it is It is so manifestly just that all property used for literary, scientific, charitable, or shall bear its due proportion of the expenses benevolent purposes, but it expressly con- of government that laws granting exemption fines the right of exemption to such real es- from taxation are always strictly construed, tate only belonging to them as shall be act and, before such exemption can be admitted, ually occupied in a particular manner and the intent of the legislature to confer it must for a specified purpose; and this right, there- be clear beyond a reasonable doubt. Thus, fore, clearly cannot be extended to property it is held that laws exempting from taxation -occupied and used for other and different "houses of religious worship,” or “buildpurposes, although the revenue derived from ings erected and used for religious worship," its use is devoted exclusively to the objects or "property used for religious purposes, for which the institution was established. etc., do not exempt a parsonage erected by a It is the actual occupancy of the property religious society for the use of its minister, which determines its right to exemption, and although occupied by him free of rent and not the use made of its proceeds. The plain built on grounds which would otherwise be and obvious meaning of the statute is that exempt. State v. Axtell, 41 N. J. L. 117; only the real estate actually occupied and in Hennepin County v. Grace, 27 Minn. 503; use by these different institutions for the Ramsey County v. Church of Good Shepherd, purposes for which they were organized shall 45 Minn. 229, 11 L. R. A. 175; Third Conbe exempt from taxation. While so occupied gregational Soc. v. Springfield, 147 Mass. 396 ; and used, it does not come in competition St. Mark's Church Wardens v. Brunswick, 78 with the property of other owners; and the Ga. 541; Gerke v. Purcell, 25 Ohio St. 229; purpose for which it is used was supposed Methodist Epis. Church Trustees v. Ellis, 38 by the legislature to be a sufficient benefit Ind. 3; Vail v. Beach, 10 Kan. 214. And a to the public to justify its exemption from building belonging to the Young Men's the burdens of taxation imposed upon other Christian Association, which contains above property. But, when such property is used the basement, in which are the gymnasium, for the purpose of accumulating money, the bowling alley, and bath room, twenty-two law imposes upon it the same burden of tax-rooms, only one of which is devoted to pubation as it imposes upon other property simi-lic worship, was held not exempt, under a larly situated. The statute does not under- law exempting "every building used exclutake to discriminate between the uses which sively for public worship." Young Men's different societies or individuals will make Christian Asso. v. New York, 113 N. Y. 187. of the proceeds of their business, and deter- The Constitution of this state requires an mine, for that reason, that one shall be taxed, equal and uniform rate of assessment and and the other not. It deals with the prop- taxation of all property, excepting "such erty as it finds it, and not with what may only for municipal, educational, literary, be done with its proceeds in the future. scientific, religious, or charitable purposes Upon this question the authorities are prac-as may be specially exempted by law." Taxtically unanimous, under similar statutory ation is therefore the rule; exemption, the provisions. Indianapolis v. Grand Master exception; and nothing can be held to be of G. L. 25 Ind. 518; Presbyterian Theological exempt by implication. It is only such propSeminary of N. W. v. People, 101 Ill. 578; erty used for the purposes specified in the Washburn College v. Shawnee County Comrs. Constitution, as the legislature may specially 8 Kan. 344; Detroit Young Men's Soc. v. exempt, which can escape taxation. ExempDetroit, 3 Mich. 172; Cincinnati College v. tion is not a matter of right, but a pure matState, 19 Ohio, 110; Cleveland Library Asso, ter of grace; and every person or corporation v. Pelton, 36 Ohio St. 253; First M. E. Church claiming that his or its property, or any part of Chicago v. Chicago, 26 Ill. 482; New Or- thereof, is exempt, must be able to show some leans v. St. Patrick's Hall Asso. 28 La. Ann. clear constitutional or legislative provision 512; New Orleans v. St. Anna's Asylum, 31 to that effect. The legislature, in its wisLa. Ann. 293; Baltimore v. Grand Lodge of dom, has provided that, of the real property A. F. & A. M. 60 Md. 280; Frederick County, belonging to literary, benevolent, charitable, Comrs. v. Sisters of Charity, 48 Md. 34; Ap- or scientific institutions incorporated within peal Tax Ct. v. Grand Lodge of A. F. & A. this state, such only shall be exempt from M. 50 Md. 429; Redemptorists v. Howard taxation as shall be actually occupied for the County Comrs. Id. 449; Salem Lyceum v. purposes for which they were incorporated: Salem, 154 Mass. 15; Chapel of Good Shepherd and, under all the rules for the construction v. Boston, 120 Mass. 212; Mulroy v. Church of exemption laws, this cannot be held to man, 52 Iowa, 238; Orr v. Baker, 4 Ind. 86; include real property which is occupied for Phillips Exeter Academy Trustees v. Exeter, other purposes, although the revenues re58 N. H. 306, 42 Am. Rep. 589; Morris v.ceived therefrom may be used for the pur

H

1895.

poses of the corporation. Some of the au-
thorities cited go to the extent of holding

PORTLAND HIBERNIAN BENEVOLENT SOCIETY V. KELLY.

Joseph SIMON, Appt.,

Ο.

that when a portion only of a building be- H. H. NORTHUP et al., County Court of

longing to such an institution is occupied for
the purposes for which it was incorporated,
and the remainder is occupied by tenants
paying rent, the entire building is liable to
taxation; but the general tenor of the author-

Multnomah County, Respts.

John R. HANSON, Appt.,

0.

ities, and no doubt the better rule, is that Sol. HIRSCH et al., Bridge Committee,

in such case the assessor, in estimating the
value of the property, should make a proper
allowance for the portion of the building oc-
cupied by the society, so that the tax levied
will be laid only upon the value of that
which is not exempt, though the property
may be assessed as a whole.

It is insisted by the plaintiff that the state
is estopped from levying the tax in question
for the reason that, while it has owned the
property assessed since 1877, no attempt was
made to assess it until the year 1890, and
that, relying upon that fact, it borrowed in
that year $33,000 on a mortgage, to enable
it to erect the building now on the premises,
and stipulated and agreed to pay the taxes
on such mortgage. But the neglect or omis-
sion of the proper officers to assess the prop-
erty cannot control the duty imposed by law
upon their successors, or affect the legal con-
struction of the statute under which its ex-
emption from taxation is claimed. Vicksburg,
S. & P. R. Co. v. Dennis, 116 U. S. 665, 29
L. ed. 770.

The case of State v. Addison, 2 S. C. N. S.
499, relied upon by plaintiff, is not in point.
That was a proceeding to enforce a munici
pal tax. The city had by ordinance, in 1793,
exempted all and every religious and chari-
table society from the payment of any city
tax, and the city council for more than three
quarters of a century had included the re-
lators as among the societies thus exempted:
and the court held that the action of the city
council for so long a time would be received
as the proper interpretation of their own en-
actment so long as it remained in force.

Again, it is claimed that, because the name appearing on the assessment roll as the owner of the property is "Hibernian Benevolent and not the "Portland Hibernian Society, Benevolent Society."-the real owner,—the assessment is void, and should be enjoined. But we understand the rule to be that a court of equity will not interfere by injunction to restrain the collection of a tax merely because of alleged illegality or irregularity appearing upon the face of the assessment, but will leave the party to his remedy at law. 1 High, Inj. § 491; Odlin v. Woodruff (Fla.) "In view of the 22 L. R. A. 699, and note. authorities, says Lord, Ch. J., "the considerations which influenced a court of equity to restrain the collection of a tax are contined to cases where the tax itself is not authorized, or, if it is, that such tax is assessed upon property not subject to taxation, or that the persons imposing it were without authority in the premises, or that they have proceeded fraudulently." Welch v. Clatsop County, 24 Or. 457.

"

It follows that the decree of the court below must be recersed, and the complaint dismissed.

Respts.

Or........

a city to incur a debt without its consent 1. The legislature has power to require for the acquisition of public bridges and ferries, as is done by act 1895 relating to the city of Portland, in the absence of any constitutional prohibition.

tion of bridges and ferries by a city, the issu2. A statute providing for the acquisiance of bonds in payment therefor, the transfer of the property to the county, and the collection of taxes by the county to pay the bonds, does not embrace more than one subject, in violation of Const. art. 4, § 20.

bridges and ferries which were already 3. The acquisition by a city of certain public highways, provided for by act 1895, is not included in the laying out, opening, and working of highways, for which special or local laws are forbidden by Const. art. 4, § 23, subd. 7.

4. A statute requiring a county tax to be levied and collected like other taxes, for the purpose of maintaining bridges and ferries, being in effect a requirement only that the sums required shall be included in the estimate for county purposes, does not violate Const. art. 4, § 23, subd. 10, prohibiting local or special laws for assessment and collection of taxes.

control of public bridges and ferries may 5. The transfer of the management and be made by the legislature to any governmental agency, such as a county court, although the bridges and ferries belong to a city.

pay the debt of a city within it, made by 6. The requirement that a county shall act 1895 providing for a county tax to pay the interest and principal on the bridge bonds of the city of Portland, is unconstitutional.

county of Multnomah at Sellwood is not 7. The maintenance of a ferry by the within the subject of act 1895 providing for the acquisition of specified bridges and ferries by the city of Portland.

(June 3, 1895.)

APPEAL by plaintiff from a judgment of the Circuit Court for Multnomah County, Department 2, denying a writ of mandamus to compel defendants to take charge of certain bridges in accordance with the provisions of an act of the legislature. Reversed,

NOTE.--In connection with the very elaborate

legislative power to direct expenditure of municipresentation in the above case of the subject of pal or county funds, see also Johnson v. San Diego

(Cal.) post. 178; Davock v. Moore (Mich.) 28 L. R. A. 783; Duval County Comrs. v. Jacksonville (Fla.) 129 L. R. A. 416.

APPEAL by plaintiff from a decree of the legislature to do which has never been ques

Circuit Court for Multnomah County, Department 3, refusing to enjoin defendants as Bridge Committee from carrying out the provisions of an act of the legislature passed for the purpose of regulating the control of certain bridges and ferries of the city of Portland. Affirmed.

The facts are stated in the opinion. Messrs. O. F. Paxton and Joseph Simon, for appellant, Simon:

The subjects of the act are sufficiently expressed in the title to make the law valid under the Constitution.

Simpson v. Bailey, 3 Or. 515; State v. Shaw, 22 Or. 287; Brewster v. Syracuse, 19 N. Y. 116; People v. Banks, 67 N. Y. 568; David v. Port land Water Committee, 14 Or. 98; Me Whirter v. Brainard, 5 Or, 429; Singer Mfg. Co. v. Graham, 8 Or. 21, 34 Am. Rep. 572; O'Keefe v. Weber, 14 Or. 57; State v. Koshland, 25 Or. 180; State v. Linn County, 25 Or. 503; Cooley, Const. Lim. pp. 192 et seq.

The power to control bridges and ferries over navigable streams is vested with the state or such subordinate agency of the state as its legislature may select for the purpose, and, until Congress acts on the subject, the power of the state over bridges across its navigable streams is plenary.

Gilman v. Philadelphia, 70 U. S. 3 Wall. 713, 18 L. ed. 96; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442; Cardwell v. American River Bridge Co. 113 U. S. 205, 28 L. ed. 959; Scheurer v. Columbia Street Bridge Co. 27 Fed. Rep. 172.

Public highways and bridges are matters of general or state, rather than of municipal, concern, and are under the paramount and primary control of the legislature.

Cooley, Taxn. pp. 130, 682; Dill. Mun. Corp. 74, 680, note; Elliott, Roads & Streets, p. 23; Maxwell v. Tillamook County, 20 Or. 495; Allen v. Hirsch, 8 Or. 412.

The legislature has not undertaken to relieve the city of Portland from the payment of the bonds issued on account of the bridges and ferries, or cast the same upon the county.

If it had done so, and had required the county of Multnomah to assume such indebtedness, it would clearly be within the constitutional power of the legislature so to do.

tioned.

Cooley, Taxn. p. 149; Cooley, Const. Lim. p. 291.

Money raised by taxation is not the private property of the county, and an act of the legislature diverting a portion of the moneys so raised to other purposes is not an application of property to private uses nor the taking of private property for public uses without compensation.

State v. St. Louis County Ct. 34 Mo. 546; Love v. Schenck, 12 Ired. L. 304; Mobile County v. Kimball, 102 U. S. 702, 26 L. ed. 241; Tippecanoe County Comrs. v. Lucas, 93 U. S. 108, 23 L. ed. 822; Laramie County Comrs. v. Albany County Comrs. 92 U. S. 307, 23 L. ed. 552. The legislature may, unless restrained by the Constitution or some of the fundamental maxims of right and justice, exercise control over the county agencies and require such public duties and functions to be performed by them as fall within the general scope and objects of the municipal organization.

Dill Mun. Corp. § 23; State v. McFadden, 23 Minn. 40; People v. Alameda County, 26 Cal. 642; Napa Valley R. Co. v. Napa County, 30 Cal. 435; Waterville v. Kennebec County Comrs. 59 Me. 80; Brewis v. Duluth, 13 Fed. Rep. 334; 4 Am. & Eng. Enc. Law, p. 350; Grant County v. Lake County, 17 Or. 453; State v. St. Louis County Ct. 34 Mo. 552; Pattison v. Yuba County Supers. 13 Cal. 184.

The charters of municipal corporations may be altered or repealed at pleasure.

Pom. Const. L. § 587; Foote & Everett, Incorporated Companies, 147-149; Dill. Mun. Corp. 74. 74a; Newton v. Mahoning County Comrs. 100 U. S. 548, 25 L. ed. 710; Laramie County Comrs. v. Albany County Comrs, supra.

The legislature has undoubted authority to apportion a public burden among all the taxpayers of the state or among those of a particular section if in its judgment those of a single section may reap the principal benefit from the proposed expenditure.

Cook v. Port of Portland, 20 Or. 580, 13 L. R. A. 533; Mobile County v. Kimball, supra; Gordon v. Cornes, 47 N. Y. 608.

The legislature may require a county to join with a municipality in the cost of the construction of a bridge.

Lane County v. Oregon, 74 U. S. 7 Wall. 71, 19 L. ed. 101; Meriwether v. Garrett, 102 U. S. 513, 26 L. ed. 204; Augusta v. North, 57 Me. 394, 2 Am. Rep. 55; Cooley, Taxn. pp. 15, 17. The court will take judicial knowledge that the consolidated city of Portland is practically the county of Multnomah, and that more than three fourths of the people of that county re-bonds as in the act provided for. side within the city of Portland, and that more than three fourths of the taxable property of the county is situate within said city.

Cooley, Taxn. pp. 130, 682; Beach, Pub. Corp. 1472.

It is within the province of the legislature to require the county court to take possession of, maintain, and operate the bridges and ferries, and to provide the means therefor, and to create the sinking fund wherewith to retire the

If the legislature should see fit to extend the boundaries of such quasi municipal corporation by including additional territory or even the remainder of the county, thereby determin ing the limits of the taxing district, it has done only that which is within the undoubted power of the legislature to do, and is in no wise different from the division of cities or counties or the consolidation thereof, the right of the

Philadelphia v. Field, 58 Pa. 320; Talbot County Comrs. v. Queen Anne County Comrs. 50 Md. 245; Will County Supers. v. People, 110 Ill. 511; Carter v. Cambridge & B. Bridge Proprs. 104 Mass. 236; Thomas v. Leland, 24 Wend. 65; Scituate v. Weymouth, 108 Mass. 128; Agawam v. Hampden County, 130 Mass. 528; Linn County Comrs. v. Snyder, 45 Kan. 636; State v. Field, 119 Mo. 593; Cooley, Taxn. p. 123.

The legislature may require a county to incur debts and obligations for a bridge within