author: Crew, J.

text:
    Stewart and Johnson v. Herron, Administrator, et al.

      Contract for sale of corporation stock — Does not lack mutuality, when — Vendor to retain possession till certain dividends accrue— No time stipulated for payment — Payment to be made in reasonable time — Implied agreement.

    J. R. S. entered into a written agreement with S., J. and G., whereby he agreed to sell, and they agreed to buy in equal proportions, three hundred and sixty shares of corporate stock on certain terms and conditions which were in part: 1. “The purchase price of said stock shall be its par value of one hundred dollars ($100.00) per share.” 2. “Said stock shall remain in the name of said J. R. Stewart, until it is fully paid for as herein provided,” etc. 3. “All dividends declared on said stock shall be paid to said J. R. Stewart, until it is paid in full. Enough of said dividends shall be retained by him to make four per cent, on the balance of said purchase price unpaid at the time said dividends are respectively declared, and the balance thereof applied by him on said purchase price; and as soon as said stock is fully paid for, either through dividends or otherwise, it shall be delivered to said purchasers. In case the dividend declared any year shall be less than four per cent, no interest shall run on said purchase price in excess of the dividend declared, and if none be declared there shall be no interest.” 4. “Should said purchasers desire to make payments on said purchase price in addition to the dividends from time to time declared on said stock, they shall have the option of doing so.” There was no express promise by the purchasers, to pay for said stock, and no time named in the contract itself within which it was to be performed. Held; The contract is not wanting in mutuality or consideration. No time of payment being fixed by said contract, the law implies- — from their agreement to purchase — a promise and engagement on the part of the purchasers to pay, through dividends or otherwise, within a reasonable time.
    (No. 10483
    Decided November 19, 1907.)
    Error to the Circuit Court of Hamilton County.
    The defendant in error, John W. Herron, as administrator of the estate of Jacob R. Stewart, deceased, filed his petition in the probate court of Hamilton County, Ohio, asking the direction and instruction of. said court as to the disposition proper to be made by him of three hundred and sixty shares, of the par value of one hundred dollars each, of the capital stock of The Bradford Machine Tool Company, a controversy having theretofore arisen between plaintiffs in error and certain of the next of kin of Jacob R. Stewart, deceased, as to who was the legal owner of said stock. To this proceeding instituted by the administrator, all persons in interest, including The Bradford Machine Tool Company, were made parties defendant, and entered their appearance therein. The plaintiffs in error, George F. Stewart and W. T. S. Johnson, filed their answer and cross-petition, asserting a claim to said three hundred and sixty shares of stock under and by virtue of the following written contract made with decedent, Jacob R. Stewart, in his lifetime:
    “J- R. Stewart agrees to sell 360 shares of the capital stock of The Bradford Mill Company to W. T. S. Johnson, George F. Stewart and Lewis N. Gatch, and said W. T. S. Johnson, George F. Stewart and Lewis N. Gatch agree to buy the same in equal proportions, on the following terms and conditions, viz.:
    “1st. The purchase price of said stock shall be its par value of one hundrel dollars ($100.00) per share.
    “2d. Said stock shall remain in the name of said J. R. Stewart until it is fully paid for as herein provided. During the time it stands in his name he shall retain full power to vote the sariie; provided, however, that if said purchasers unite in requesting that it be voted in any particular way, it shall be voted in accordance with their unanimous request; and provided, also, that in case of his ceasing to take an active part in the business, said stock thereafter, until it is delivered to said purchasers, shall be voted in accordance with the request of any two of them.
    “3d. All dividends declared on said stock shall be paid Jo said J. R. Stewart, until it is paid in full. Enough of said dividends shall be retained by him to make four per cent, on the balance of said purchase' price unpaid at the time said dividends are respectively declared, and the balance thereof applied by him on said purchase price; and as soon as said stock is fully paid for, either through dividends or otherwise, it shall be delivered to said purchasers. In case the dividend declared any year shall be less than four per cent., no interest shall run on said purchase price in excess of the dividend declared; and if none be declared, there shall be no interest.
    “4th. Should said purchasers desire to make payments on said purchase price, in addition to the dividends from time to time declared on said stock, they shall have the option of doing so.
    “Item 5. Said W. T. S. Johnson and George F. Stewart severally agree to remain in the employ of said The Bradford Mill Company until each has paid his respective share of said purchase price, and in case either one of them withdraws from that employment before that time, excepting in the case of his death, he shall be entitled in severalty to so much of his portion of said stock as has been theretofore paid for, and to a sixty-day option on the balance of said portion at par, with six months time in which to pay for it; and this contract shall be terminated as to him, but it shall continue pro rata as to the other parties.
    “In case either of said purchasers shall die during the continuance of this contract, the remaining two may acquire his. interest in said contract, and in the stock covered by it, by paying to his estate an amount equivalent to that theretofore credited on his portion of said purchase price, and this contract shall continue on that basis. If they decline to do this, said J. R. Stewart shall pay that amount to said estate in cash. In either event, this contract as to said decedent shall be terminated, but it shall continue pro rata' as to the other parties.
    “6th. The provisions of this contract as to dividends shall not apply to any dividend that may be declared at the close of the current fiscal year of said company; but said dividend shall be carried to the account of said J. R. Stewart, and no part thereof applied to the payment of said purchase price.
    “Executed in quadruplicate this 23d day of September, 1899.
    “(Signed)
    “J. R. Stewart,
    “W. T. S. Johnson,
    “George F. Stewart,
    “Lewis N. Gatch.”
    By appropriate pleadings the validity of this contract was challenged and denied by Carrie E. Stewart, widow of Jacob R. Stewart, and by Gertrude Stewart Titus and Mary L. Hazelton, his children and heirs-at-law.
    On February 10, 1900, The Bradford Mill Company was reorganized under the name of The Bradford Machine Tool Company. There was no change in the issue or distribution of stock, or in the officers or directors of the company, except that said Lewis N. Gatch was elected vice-president thereof. On the date last above named the original contract was modified or amended, by agreement of all the parties thereto, and the following endorsement was made thereon:
    “It is hereby agreed by the parties hereto that this contract in all its terms and conditions shall apply to 360 shares of stock of The Bradford Machine Tool Co., instead and in lieu of the said 360 shares of stock of The Bradford Mill Co., and that on this agreement said J. R. Stewart may surrender for cancellation said stock of The Bradford Mill Co., upon the issuance to him of the same amount of stock of The Bradford Machine Tool Co., which he agrees to hold subject to the terms of this contract and to the rights of the parties thereto in place of said surrendered stock. This agreement is made in order that the plan may be consummated by winding up the affairs of the Bradford Mill Co., by the surrender of its stock by its stockholders and the transfer of its assets to The Bradford Machine Tool Co., upon the issuance to said stockholders respectively of amounts of stock of The Bradford Machine Tool Co., equal to those of The Bradford Mill Co., surrendered by them.
    “Cincinnati, Ohio, Feb. 10, 1900.
    “J. R. Stewart,
    “George F. Stewart,
    “W. T. S. Johnson,
    “Lewis N. Gatch.”
    .In 1901 the office of vice-president was abolished, and Gatch ceased to be an officer, though he remained a director in the company. On February 11, 1902, the following writing was executed by the distributees of the estate of J. R. Stewart, deceased:
    “We consent and agree that Lewis N. Gatch may assign to George F. Stewart and W. T. S. Johnson, his interest in the contract of'September 23, 1899, relating to 360 shares of Bradford Machine Tool Co. stock, leaving the contract in full force as at present excepting that Stewart and Johnson shall have all the rights and be subject to all the obligations that are now in Stewart, Johnson and Gatch.”

      This writing was signed and delivered, with notice to Johnson and Stewart that such signing and delivery should be without prejudice to the rights of the widow and daughters.
    On February 27, 1902, the administrator filed his application herein for instructions in the premises, and on March 3, 1902, an order issued upon said application authorizing the administrator to act in accordance with the above writing of February 11, 1902. Accordingly, on that date the administrator endorsed upon said contract the following :
    “Cincinnati, Ohio, March 3, '1902. In accordance with an order of the Probate Court of Hamilton County, Ohio, this day made in the matter of the estate of Jacob R. Stewart, deceased, No. 49142 of said court, I hereby released the above named Lewis N. Gatch from any further obligation to said estate by reason of the within contract.
    “John W. Herron,'
    “Admr., T. R. Stewart,”
    At the same time W. T. S. Johnson, George F. Stewart and Lewis N. Gatch endorsed upon said contract the following:
    “In consideration of one dollar and the mutual agreements of the undersigned, Lewis N. Gatch does hereby assign, without recourse, to W. T. S. Johnson and George F. Stewart all his right, title and interest in and to the within contract and the 360 shares of stock of The Bradford Machine Tool Company to which it relates. Said Johnson and Stewart hereby accept said assignment and assume any obligation which may have been imposed upon said Gatch by said contract. The above is done upon the written consent (dated Feb. 11, 1902), of Carrie E. Stewart, widow of the within named J. R. Stewart; George F. Stewart, Gertrude Titus and Mary Hazelton, his children, and John W. Herron, administrator of his estate.
    “Done at Cincinnati, Ohio, this 3d day of March, 1902.
    “Lewis N. Gatch,
    “George F. Stewart,
    “W. T. S. Johnson.”
    In the probate court the cause was heard and submitted upon an agreed statement of facts which is fully set out in the record. Upon this hearing the probate court found and adjudged that the original contract made and entered into between Jacob R. Stewart and George F. Stewart, W. T. S. Johnson and Lewis N. Gatch, because of uncertainty and indefiniteness as to the time of its performance, was voidable by the administrator; and instructed him that he had full right to terminate the same, but the court allowed to said George F. Stewart and W. T. S. Johnson so much of said stock as had been paid for by them; and gave them a sixty day option on the balance, at par, with six months time in which to pay for the same, after the exercise of such option. Upon an appeal , to the court of common pleas, in which all the parties united, the court held that the contract, as modified by the writing of February To, 1900, was a good and valid contract of mutual obligation, by the terms of which Jacob R. Stewart agreed to sell, and George F. Stewart, W. T. S. Johnson and Lewis N. Gatch agreed to buy and pay for it at its par value in money, 360 shares of the capital stock of The Bradford Machine Tool Company. From this judgment the administrator and the objecting distributees of the estate of Jacob R. Stewart, prosecuted error to the circuit court, where the judgment of the court of common pleas was modified. The circuit court affirmed as to two.-thirds of the number of shares of stock in question, reversed as to the one-third, and entered judgment accordingly. Again, none of the parties were satisfied with this judgment, and in consequence all are now seeking relief therefrom in this court. The plaintiffs in error are here, asking that the judgment of the court of common pleas, holding the contract valid, be reinstated and affirmed without modification. The defendants in error, by cross-petition, ask that said contract be declared wholly void.

      Messrs. Maxwell & Ramsey for plaintiffs in error.
    It is said that the third and fourth clause of the writing deprive the seller of his right to enforce payment from any source except future dividends on the stock itself; that they extinguish the previously expressed personal obligation of the purchasers and make the whole transaction unilateral and illusory. It will be well to approach this branch of the argument by the consideration of a few elementary rules governing the construction of contracts.
    First. In case of doubt, that construction must be adopted which supports the agreement of the parties. 1 Beach, Modern Law of Contracts, Section 73; Greenough et al. v. Smead et al., 3 Ohio St., 416; Lewis v. Tipton, 10 Ohio St., 88.
    Second. The contract must not only be sustained as a whole, but in all of its parts, except where irreconcilable parts coexist. Insurance Co. v. Housinger & Norton, 10 Ohio St., 10; Brown et al. v. Fowler et al., 65 Ohio St., 509.
    Third. As mutuality is essential to the validity of an executory contract, the law presumes intent to create mutual obligation except in cases where the expressed agreement will not admit of that interpretation. Nowlin v. Pyne, 40 Ia., 166; Furnace Co. v. Magill, 108 Ill., 656.
    Why go through the useless formality of giving and receiving a,written paper which was not after all, to evidence any right or create any obligation? Lewis v. Tipton, 10 Ohio St., 89; Manufacturing Co. v. Coon, 150 Mass., 566; Lewis v. Insurance Co., 61 Mo., 534; Mill Co. v. Goodnow, 42 N. W. Rep., 356; McCartney v. Glassford, 20 Pac. Rep., 423; Nunez v. Dautel, 19 Wall., 560; Cota v. Buck, 7 Metc., 588; Gardner v. Barger, 14 Heisk., 668; Palmer v. Hummer, 10 Kan., 464; Jones v. Eisler, Admr., 3 Kan., 134.
    In all contracts where no time is specified for the doing of an act, it is to be inferred that it is to be done in a reasonable time. Scott v. Lord Ebury et al., L. R., 2 C. P., 225.
    The condition subsequent, or option, does not create the term of the contract. Brown et al. v. Fowler et al., 65 Ohio St., 507; Turnpike Co. v. Coy, 13 Ohio St., 84; Furnace Co. v. Railroad Co.,
      22 Ohio St., 451; Storm v. United States, 94 U. S., 83; Harvester Co. v. Mitchell, Lewis & Staver Co., 89 Fed. Rep., 173; Brown et al. v. Bowman, 119 Ga., 153; Construction Co. v. Iron Works, 69 S. W. Rep., 384; Publishing & Engraving Co. v. Walker, 87 Mo. App., 503; Sagalowitz v. Pellman, 32 Misc., 508; Boyd et al. v. Brown, 34 S. E. Rep., 907; Willetts et al. v. Insurance Co., 45 N. Y., 45; Train v. Gold, 5 Pick., 380; Water Co. v. Lumber Co., 85 Ia., 112; Emerson et al. v. Packing Co., 104 N. W. Rep., 573.

      Mr. W. C. PI err on, for Herron, administrator, and Mr. lohn W. Warrington, for defendants in error.
    We contend that the employment and death clauses provide for the discharge of the contract, as well with respect to the member withdrawing from the employment as to the member dying, and that the contract is not broken in one instance any more than in the other. Clark on Contracts, 626.
    The plaintiff in error insists that the obligation contained in the purchase and sale clause can not be qualified by the method of payment expressly provided; his theory being that the employment feature and the purchase and sale feature are clear and can not be consistently affected by the withdrawal feature in the one instance or by the method of payment clause in the other. We contend, however, that he overlooks the rule of construction prevailing in this court, that, it is only where one clause is clearly expressed and another is not, that the first shall be given effect. Brown et al. v. Fowler et al., 65 Ohio St., 507.
    There is an unknown quantity in counsel’s interpretation, which is fatal. It is found in his requirement to pay not before “the expiration of a reasonable time for realizing the amount out of the dividends.” What tribunal, court, or jury, could solve the question of such “reasonable time” ? It would depend upon the annual amount and regularity of dividends realized in future years. It is obvious that dividends would be greater with the concern in properous times than in hard times.
    The most that can be said is that the contingencies and hazards of the corporate business must-control the only claim of obligation to pay; that is, according as dividends may or may not accrue. Chitty on Contracts, 89; Benjamin on Contracts, 17; Clark v. Pearson, 53 Ill. App., 310.
    It would be optional with plaintiffs in error, upon the theory of their counsel and in fact, to control amounts of dividends in good times, while it might be without their power to produce dividends and so furnish them an excuse for not doing so, in hard times. Such a promise is “illusory,” and being “dependent on a condition which in fact reserves an unlimited option to the promisor is not enforceable.” Hammon on Contracts, 89.
    Where a contract is so far incomplete that the period of its intended duration can not be determined by a fair inference from its provisions, either party is ordinarily at liberty to terminate it at will on giving reasonable notice of .his intention to do so. Irish v. Dean, 39 Wis., 562; Coffin v. Landis,
      46 Pa. St., 426; Mechem on Agency, Section 210; Logging Co. v. Robson, 69 Fed. Rep., 773.
    The absence then of any provision expressly requiring' the administrator of the elder Stewart to carry out the provisions of term five of the contract is significant. It is hard to believe that if the survivor of the younger Stewart or Johnson should fail to pay the estate of the one dying to the extent of past dividends accruing on his stock, it was ever intended that the administrator of the elder Stewart should pay such sum out of the estate. It is quite conceivable that such contingency might arise; but it is not conceivable that the parties ever intended that the elder Stewart’s estate should be kept open for administration during a period so uncertain and indefinite.
    This contract is so personal in its nature as not to be binding upon the legal representatives of any of the parties to it. It is like a contract of partnership, or principal and agent, and terminates at the death of either party.
    Without quoting at length, we refer to the following authorities as establishing this general proposition: Harriman -on Contracts, 2d Ed., Section 277; Rockel Ohio Probate Law, Par. 520; Williams on Executors, 3d Ed., p. 457, Sections 367, 368; Dickinson v. Callahan’s Adrnr., 5 B. Monroe (Ky.), 497; Farrow v. Wilson Law Reports, 4 Common Pleas, 745.
   Crew, J.

The rights of the respective claimants to the 360 shares of stock involved in the present controversy must, as is apparent from the above statement of facts, be ascertained and determined from a consideration of whether or not the agreement of September 23, 1899, was, and is, a valid contract of mutual obligation binding upon all the parties thereto. It is claimed by defendant in error that this agreement is void and of no effect because, as they insist, it is wholly uncertain and illusory in its nature, and is without mutuality or consideration. Referring to the writing itself we find in the initial paragraph thereof this language: “J.' R. Stewart agrees to sell 360 shares of the capital stock of The Bradford Mill Company to W. T. S. Johnson, George F. Stewart and Lewis N. Gatch, and said W. T. S. Johnson, George F. Stewart and Lewis N. Gatch agree to buy the same in equal proportions, on the following terms and conditions, viz.: — ” Here we have, pertinently and plainly expressed, mutual and concurrent engagements, equally obligatory upon the respective promisors; upon the one to sell, and upon the others to purchase, the 360 shares of stock upon such terms as are in said instrument expressed, and such as are necessarily implied therefrom. It is then further in said writing stipulated and agreed that: “The purchase price of said stock shall be' its par value of one hundred dollars ($100.00) per share.” Thus we find in the language and terms of ■ the instrument itself, absolute certainty as to parties, subject-matter and consideration — every element necessary to a complete and valid contract of purchase and sale; and if the foregoing were the only provisions of said instrument it could not be doubted, but that the contract as thus expressed, would be one of binding obligation upon all the parties thereto. But we are told by counsel for defendants in error, that by force of the provisions of the third clause of said instrument, the vendor, J. R. Stewart, is wholly deprived of the right to demand or exact payment for said 360 shares of stock from the purchasers thereof, in any manner other than by application to the purchase price of future dividends on the stock itself; and that the effect of this is to destroy and extinguish any previously expressed personal obligation on the part of said purchasers, and to convert what would otherwise be a valid contract of mutual and binding obligation into a mere unilateral agreement without consideration. The language of this clause is as follows: “3d. All dividends declared on said stock shall be paid to said J. R. Stewart, until it is paid in full. Enough of said dividends shall be retained by him to make four per cent, on the balance of said purchase price unpaid at the time said dividends are respectively declared, and the balance thereof applied by him on said purchase price; and as soon as said stock is fully paid fory either through dividends or otherwise, it shall be delivered to said purchasers. In case the dividend declared any year shall be less'than four per cent, no interest shall run on said purchase price in excess of the dividend declared, and if none be declared there shall be no interest.” It will be observed that the language of the clause is not, that payment of the purchase price shall be made, or may be exacted, only- out of dividends declared, but that: “All dividends declared on said stock shall be paid to said J. R. Stewart until it (the purchase price) is paid in full.” In other words, the mode of payment prescribed is not exclusively from dividends on the stock itself, neither is payment conditioned wholly, or finally, upon the alternative that dividends shall be declared, but the only requirement is that all dividends declared shall be applied in payment of the purchase price. This stipulation or requirement is in no wise necessarily inconsistent with, nor does it in any manner impair, avoid or extinguish, the obligation theretofore imposed upon* the purchasers by their express words of formal agreement to purchase. “That which is made certain in one part of a written instrument, can not be overcome or changed by words in another part, unless such other words are of equal or greater certainty.” Brown et al. v. Fowler et al., 65 Ohio St., 509.

In The Ashland Mutual Fire Insurance Co. v. Housinger & Norton, 10 Ohio St., 10, this court had under consideration and review a policy of fire insurance, one clause of which provided for the payment of all losses or damages not exceeding the sum insured. There was a subsequent clause in said policy which the company claimed limited its obligation to two-thirds of the loss actually sustained. In construing said policy, this court said: “In the first sentence or provision the company undertakes, unconditionally, to pay all losses or damages not exceeding the sum insured; and the only way of avoiding its obligation is to show that the promise thus clearly and unconditionally expressed is retracted or varied in the succeeding sentence. But it is a rule to so construe an instrument, if practicable, that the whole may stand; ut res magis valeat, quam pereat.

“Nothing but a clear and unambiguous expression in the latter sentence, amounting to a necessity for it, could justify our regarding the subsequent provision in a contract as utterly inconsistent with the preceding provision.”

But it is said, that by the provisions of the fourth clause of said instrument, the parties have themselves clearly evinced their understanding' and intent, that the dividends on the stock should be the only method of payment that could be exacted, and that the plain purpose of this clause was, and is, to exempt the purchasers from any liability to pay out of their own money or means, except upon their “desire” or “option” so to do. The clause reads as follows: “Should said purchasers desire to make payments on said purchase price in addition to the dividends from time to time declared on said stock, they shall have the option of doing so.” While it is obviously true, that the option thus extended to make payments from time to time in addition to the dividends declared, neither creates nor imposes an obligation upon the purchasers to make such additional payments; yet it is equally true, that the giving of the option does not operate to discharge and release the purchasers from such obligation and liability as they assumed under and by virtue of their express agreement to purchase the 360 shares of stock, which J. R. Stewart, in terms, concurrently promised and agreed to sell them.

Among the considerations recognized in law as sufficient to support a contract, is that of mutual promises, or as it is sometimes expressed, a promise for a promise. In our everyday business relations, many of our most familiar and common contracts depend for their validity upon the application of this principle. And the doctrine is very generally, if not universally, recognized that where there is mutuality of engagement so that each party has the right at once to hold the other to a positive agreement, a sufficient consideration is provided and the contract is binding upon each. What, then, considering all its terms and provisions, is the proper construction and legal effect, of this writing of September 23d, 1899, modified by the endorsement of February 10th, 1900? It is claimed that inasmuch as this writing contains neither express engagement to pay the purchase price of $36,000, nor fixes definitely the time within which the agreement shall be performed and said purchase price be fully paid, that therefore it is wholly uncertain and illusory in its nature, and should not be enforced. As to the first of these propositions it is enough to say, that the agreement of George T. Stewart, W. T. S. Johnson and Lewis N. Gatch to purchase the 360 shares of stock of The Bradford Mill Company, necessarily implies a promise on their part to pay for it. Railroad Co. v. Brown, 26 Ohio . St., 223. As to the suggestion that time of performance is not therein specified, the rule is well settled, that where no time for performance is fixed by the contract itself, the law implies that performance is to take place within a reasonable time, and that the parties so intended and agreed. Lewis v. Tipton, 10 Ohio St., 88; Curtiss v. The City of Waterloo, 38 Ia., 266; Griffin v. Ogletree, 114 Ala., 343; Wright v. Maxwell, 9 Ind., 192. The written agreement here in question definitely fixes the amount to be paid, and refers to it throughout as the “purchase price.” Immediately upon the execution of this writing the purchasers were entitled to receive, and did receive, the full beneficial interest in the 360 shares of stock, and the same were thereafter voted in accordance with their wishes and directions; and the dividends thereon amounting to several thousand dollars, were applied as a credit on the purchase price of said stock. We must presume that the parties thereto intended this instrument to have some operation, and it would seem but reasonable that, if as claimed, only a gift of the stock was intended, that then naturally and necessarily, the instrument and transaction would have assumed a very different form. To adopt the construction contended for by the defendants in error would be to import into .the written contract of the parties a condition nowhere found or expressed in the instrument itself, viz.: that if dividends fail, payment of the purchase price would not be exacted — and to thus, by judicial construction, render the instrument frivolous and ineffectual, and defeat rather than sustain it. But the rule is elementary, that if the language of a contract is susceptible of two constructions, one of which will render it valid and give effect to the obligation of the parties, and the other will render it invalid and ineffectual, the former construction must be adopted. Applying the foregoing principles and rules of construction to the contract now under review,necessarily leads to the conclusion that this contract is not wanting either in consideration or mutuality of obligation, and that it .is therefore binding and obligatory upon the parties, and imposes upon the purchasers the obligation to pay the full purchase price of $36,000, “through dividends or otherwise,” but in terms allows them a reasonable time within which to realize this amount from dividends' that may be declared. The following authorities, with more or less direction, bear upon the propositions above considered. Lewis v. Tipton, 10 Ohio St., 88; Railroad Co. v. Brown, 26 Ohio St., 223; Palmer v. Hummer, 10 Kan., 464; Fisher v. Hopkins, 4 Wyo., 379; Carter White Lead Co. v. Kinlin, 47 Neb., 409, 416; Minneapolis Mill Co. v. Goodnow, 40 Minn., 497; Scott v. Lord Ebury, 2 L. R. C. P., 255; Aunez v. Dautel, 19 Wall., 560; Brown v. Rounsavell, 78 Ill., 589 McCartney et al. v. Glassford, 1 Wash., 579; DeRutte et al. v. Muldrow et al., 16 Cal., 505.

In view of the conclusion above reached, it is unnecessary to consider whether the fifth clause of said contract provides a valuable and sufficient consideration, independent of the purchase price agreed to be paid, or the effect, if any, on the rights of the parties, of alleged part performance by the purchasers, in the lifetime of said Jacob R. Stewart.

The further claim is made in this case by counsel for defendants in error, that said contract, if mutually binding upon the parties thereto, is nevertheless wholly incapable of performance by the administrator. We are of opinion, however, that as performance on his part would only require of the administrator that he receive and credit upon said contract the amounts paid, upon the purchase price, through dividends or otherwise, and when fully paid that he transfer and deliver said stock to the persons entitled thereto, that no legal obstacle exists to prevent his full and completé performance of said contract in the due course of administration.

The judgment of the circuit court will be reversed, and the judgment of the court of common pleas will be affirmed.

Shauck, C. J., Price, Summers and Davis, JJ-, concur. .


source: Caselaw Access Project

author: Price, J. White, J.,

license: Public Domain

text:
    Watterson v. Halliday, Auditor, and Barron, Treasurer.

      Parish houses — Residences of priests — Not exempt from taxation— Article 12, Section 2, of constitution — Section 2732, Revised Statutes — Taxation of real property.

    Parish houses, otherwise known as the residences of the priests and bishops of the Roman Catholic church, are not exempt from taxation and legal assessments, by virtue of Section 2 of Artificie 12 of the Constitution of Ohio, nor by the provisions of Section 2732, Revised Statutes, although such places of residence are used by the priests and bishop for the discharge of many duties of a religious and charitable nature, which are imposed by the vows of their ordination and rules of the church.
    (No. 10256
    Decided November 19, 1907.)
    Error to the Circuit Court of Franklin County.

      On the 16th day of April, 1898, John A. Watterson filed his petition against the above named defendants in error, praying for an order enjoining the collection of taxes and assessments levied and assessed on various parcels of real estate in said county, most of which are located in the city of Columbus.
    In his petition, he asserted that the legal title to said real estate was being held by him as Bishop of the Roman Catholic church in and for the diocese of Columbus, which includes Franklin and other counties, and which title he held in his name in trust for the sole use of said church, the property being its places of public religious worship, its public parochial schools, academies, asylums, cemeteries and institutions of purely public charity, and for no other purposes whatsoever. •
    The petition definitely describes each piece of property and the uses to which the same are devoted, and claims that each of said parcels is exempt from taxation and assessments for street and other public improvements. The defendants answered jointly, setting up the grounds on which they relied to justify the levying and collection of the taxes and assessments charged against the several parcels of property. The answer was subsequently amended, and to the answer a reply and amendments thereto were filed, so that the issues were finally made up. The case was heard in the court of common pleas, and from its decree an appeal was taken to the circuit court, where the cause was heard on the same issues, supplemented by certain other amendments.
    During the long pendency of the action, the successors in office of the original defendants were made parties defendant, and Bishop James J. Hartley, now Bishop of the Columbus Diocese, has been substituted for the original plaintiff in the action.
    The circuit court made findings of fact and announced its conclusions of law, and granted an injunction as to a large part of the real estate, on the ground that it was exempt from taxation, but not exempt from assessment for certain public improvements, and refused an injunction as to other parcels of real estate, which are called the houses of the Bishop and priests.
    The findings of fact bearing on this class of the property appear in the opinion.
    Error is prosecuted in this court to reverse the decree of the circuit court and to procure a judgment exempting the property not released by the decree.

      Mr. Luke G. Byrne; Mr. Joseph M. Howard; Mr. Ledyard Lincoln; and Mr. E. J. Blandin, for plaintiff in error.
    It is pertinent to consider the rules which are to govern the construction of the provisions of Article I, Section 7, and Article XII, Section 2, Constitution of Ohio, and Section 2732, Revised Statutes, first, second and sixth clauses, as applied to the questions under consideration.
    The general rule of construction is, that statutes granting exemptions from taxation are to be strictly construed in favor of the state and against the person claiming the exemption.
    But this rule of “strict construction” is subordinate to the cardinal rule of construction, that such statutes shall not be so construed as to defeat the obvious intention of the lawmaking body. I Cooley on Taxation, 357-362; 12 Am. & Eng. Ency. Law, 2d Ed., 302-305.
    It has been held that the rule of construction of statutes containing exemptions from taxation should be relaxed in relation to exemptions of religious, charitable, and educational institutions, on account of their meritorious nature and the fact that they relieve the government of burdens which it would otherwise have to bear. Association for Colored Orphans v. Mayor, 104 N. Y., 587; Davis, Auditor, v. Camp Meeting Assn., 57 Ohio St., 257; Yale University v. New Haven, 71 Conn., 316; Sisters of Charity v. Township of Chatham, 52 N. J. L., 376; State v. Fisk University, 87 Tenn., 233; City of Indianapolis v. Grand Master, etc., 25 Ind., 518.
    These views were not disapproved by this court in its review on error of the same case in Gerke v. Purcell, 25 Ohio St., 229. On the contrary, it held that the construction should not be rigid, but should be fair.
    The word “charity,” as used in the article of the constitution and section of the statutes under consideration, is used in its legal sense and not literally. Gerke, Treas., et al. v. Purcell, 25 Ohio St., 229. Charity defined in Jones v. Williams, Ambler, 652. Price et al. v. Maxwell et al., 28 Pa. St., 23; Jackson v. Phillips et al., 14 Allen, 556; Philadelphia v. Masonic Home, 160 Pa. St., 572; Perin et al. v. Carey et al., 24 How., 466.
    One of the essential characteristics of a legal charity is that its use shall be a public one — shall be for the benefit of an indefinite number. As soon as the particular beneficiaries of the trust have been selected, the trust ceases to be, in legal contemplation a public, charitable one. But the general public being the beneficiaries of a general charitable use, they are upheld by the courts under circumstances which would not support a .private trust. Mannix, Assignee, v. Purcell et al., 46 Ohio St., 140; Saltonstall et al. v. Sanders et al., 11 Allen, 456; 2 Pomeroy on Equity, par. 987; Franklin et al. v. Armfield et al., 2 Sneed (Tenn.), 305; DeCamp v. Dobbins et al., Exrs., 31 N. J. Eq., 671; Attorney General v. Stepney, 10 Ves., 22; Winslow v. Cummings et al., 3 Cush., 358; Bliss et al. v. Bible Society et al., 2 Allen, 334; Turner v. Ogden, 1 Cox, 316; Swasey, Admr., v. Bible Society et al., 57 Me., 523; Bartlett et al., Exrs. & Trustees, Petitioners, 163 Mass,, 509; Morville, Jr., v. Fowle et al., 144 Mass., 109; St. George’s Church Society v. Branch et al., 120 Mo., 226; Lougheed v. Church, 129 N. Y., 211; Price et al. v. Maxwell et al., 28 Pa. St., 23; Hughes, Exr., v. Daly et al., 49 Conn., 34; Alden et al., Exrs., v. St. Peter’s Parish, 158 Ill., 631; First Universalists Society v. Fitch et al., 8 Gray, 421; Dexter et al. v. Gardner et al., 7 Allen, 243; McAlister et al. v. Burgess, Exr., et al., 161 Mass., 269; Merchant v. Red Cross Society et al., 143 Cal., 537; Wood v. Trustees, 61 Atl., 279; Rotch et al., Exrs., v. Emerson et al., 105 Mass., 431.
    When the charity is public, the exclusion of all idea of private gain or profit is equivalent, in effect to the force of “purely” as applied to public charity in the constitution. This clause and the effect to be given the word “purely” as applied to “public charity” has been considered by the courts of other states and the same construction has been given as that in Gerke v. Purcell. Donohugh’s Appeal, 86 Pa. St., 306.
    The object is more clearly charitable in the sense of the law than the advance of religion and education among an indefinite number of persons. Fairbanks v. Lamson et al., 99 Mass., 533; Price et al. v. Maxwell et al., 28 Pa. St., 23.
    And it has never been held that because the tenets of a particular denomination are taught in its churches and schools that its property so devoted to such uses is not devoted to a charitable use. Davis, Auditor, v. Camp Meeting Assn., 57 Ohio St., 251; Little, Treas., v. Seminary, 72 Ohio St., 417.
    The congregations worshiping in the respective churches and which support and maintain the churches, schools, priests’ houses, and other charities upon the respective parcels are “institutions of purely public charity.” Humphries, Auditor, et al., v. The Little Sisters of the Poor, 29 Ohio St., 201.
    The word “buildings” as used in the sixth paragraph of Section 2732, Revised Statutes, is used in its ordinary sense and includes structures of all kinds and classes. Such buildings, when belonging to institutions of purely public charity, together with the land actually occupied by such institutions, and not leased or otherwise used with a view to profit, are exempt from taxation.
    Certainly the priests’ houses, or such parts of them as are used as the offices of the school, and as supplementary to the school building, would be entitled to all the benefits which accrue to the schools. Library Assn. v. Pelton, Treas., et al., 36 Ohio St., 253.
    The lodgment of the priest is but an incident, and conduces to the more efficient accomplishment of the work of the respective congregations, and the houses are actually used and occupied for its purposes.
    We respectfully submit that the “direct and immediate uses” to which the priests’ houses in controversy are applied are different from those in Gerke, etc., v. Purcell. In that case it was argued by counsel that the priests’ houses were necessary adjuncts to the churches and different from the residences of Protestant clergymen. But there was no averment or evidence to sustain such claim. No proof was offered as to any other use than that they were occupied as residences for the clergymen. Nor was it claimed that they were “buildings belonging to” or were “institutions of purely public charity,” or were connected with public institutions of learning.
    Nor can it be said that the uses to which the priests’ houses in controversy are devoted are “so natural, common and well known, as to be a matter of judicial cognizance,” nor that the court in the Gerke case took judicial notice of all such uses as are shown in the case at bar. Railroad Co. v. Hoffhines, 46 Ohio St., 651; State, ex rel., v. Smith, 44 Ohio St., 362; Sarahass et al., Trustees, v. Armstrong, 16 Kan., 192; Youngs et al. v. Ransom & Youngs, 31 Barb., 49.

      There is no rule by which the profession or calling of any person or persons will exclude from the exemptions allowed by law, any property devoted to public charity. So that the place wherein a clergyman, of whatever denomination, lodges is not taxable because so used by a clergyman. Missionary Society v. Taylor, Recr., 173 Pa. St., 456; White et al. v. Smith et al., 189 Pa. St., 222; Church of St. Monica v. Mayor et al., 55 N. Y. Super. Ct., 160; People, ex rel., v. Murray et al., Comrs., 148 N. Y., 172; Shaarai Berocho v. Mayor et al., 60 N. Y. Super. Ct., 479; Harvard College v. Assessors of Cambridge, 175 Mass., 145.
    The history of Harvard College, and of like institutions, shows, we think, that from the begin7 ning, dormitories and dining halls have been furnished by the college for the use of the students, and have been regarded as devoted to college purposes. In addition to this, the effect of the decisions is plainly to exempt property applied to such uses. Wesleyan Academy v. Inhabitants of Wilbraham, 99 Mass., 599; Boys’ School v. Inhabitants of Gill, 145 Mass., 139; Yale University v. New Haven, 71 Conn., 316; State v. Ross, 4 Zabr., 497; White v. Bayley, 10 C. B., N. S., 227; Hospital v. Inhabitants of Somerville, 101 Mass., 319.
    But we respectfully submit that the character of the congregations owning the respective parcels of real estate in controversy in this case, as “institutions of purely public charity,” and their right to hold the priests’ houses exempt from taxation, has been settled by this court in the case Davis, Auditor, v. Camp Meeting Association, 57 Ohio St., 257.

      All cases decided, which involve parsonages, will show that there was no such uses as in the present case, and that it was only claimed that they were the residences of the ministers, and that as such they were exempt under the laws exempting houses of public worship. Congregational Society v. Springfield, 147 Mass., 396; St. Mark’s Church v. Mayor, 78 Ga., 541; Trustees of M. E. Church v. Ellis, 38 Ind., 3; Vail, Trustee v. Beach, Treas., 10 Kan., 214; Church v. New Orleans, 30 La. Ann., 259; People, ex rel., v. O’Brien et al., 53 Hun, 580.
    The congregations are “institutions of purely public charity,” in supporting and maintaining the respective priests’ houses. Such priests’ houses and the uses to which they are devoted, irrespective of their connection with the schools and the poor relief, are for the benefit of the public and no profit or gain is derived therefrom. Bishop’s Residence Co. v. Hudson, Collector, 91 Mo., 671; Bispham’s Equity, Sections 119, 122; Story’s Equity, Section 1164; Perry on Trusts, Section 701; Schmidt et al. v. Hess et al., 60 Mo. 591.
    Gifts for repairing parsonage houses, for maintaining preaching ministers of the gospel, have been held to be charities in the following cases: Sohie, Exr., v. Church et al., 12 Metc., 250; Attorney General v. Bishop of Chester, 1 Brown, 444; Trustees v. Beatty et al., 28 N. J. Eq., 570.
    The legal definition of charity includes not merely the relief of the poor, the sick and unfortunate, but whatever tends to promote religion or education. Where the charity is extended to the indefinite or unascertained public upon the same terms and conditions, it is public. Miller v. Teachout, 24 Ohio St., 525; Sowers v. Cyrenius, 39 Ohio St., 29.
    The word “institution” in the sixth subdivision of Section 2732', is used to designate the corporation or other organized body that administers the charity. (Humphreys v. The Little Sisters of the Poor and Gerke v. Purcell.)

    The occupancy of the priest is that of the parish or congregation. It is simply as their representative or agent in the religious and charitable work and for the more convenient performance thereof that he occupies the same. He is not a tenant with the right of occupancy for any definite time, pays no rent and has no property right in the building. Harvard College v. Assessors of Cambridge, 175 Mass., 145; People, ex rel., v. Murray et al., Commissioners, 148 N. Y., 171.
    We invite the careful attention of the court to the cases of Bishops’ Residence Co. v. Hudson, Collector, 91 Mo., 671, 4 S. W. Rep., 436; Trustees v. State, 46 Ia., 275; Ramsey v. Macalester College, 51 Minn., 437, 53 N. W. Rep., 704; Bartlett et al., Exrs., Petitioners, 163 Mass., 509.

      Mr. Henry A. Williams and Mr. Karl T. Webber, for defendants in error.
    ■ In applying the law to the facts in this case, so far as they relate to the matter of taxes, we are met at the threshold with the doctrine of the law, that the burden of the proof is upon the person who seeks to establish the exemption from taxation, to show that it exists. Such exemption must be expressed in clear and unmistakable terms and can not be shown by doubtful or ambiguous language. Sturges v. Carter, Treas., 114 U. S., 511; Bank v. Billings et al., 4 Peters, 514; Gilfillan v. Canal Co., 109 U. S., 401; Lee, Treas., v. Sturges, 46 Ohio St., 154; Cooley on Taxation, 3d Ed., Vol. 1, 356.
    The Roman Catholic Church is not an institution of purely public charity. A religious organization can in no sense be said to be an institution of purely public charity. The constitution, in its classification of exempted property, as we have stated, expressly distinguishes the one from the other.
    If a religious organization was intended to be regarded as an institution of purely public charity, and all buildings, lands and appurtenances owned by it, were by virtue thereof, to be exempt, it was wholly unnecessary for the constitution makers to further designate that houses used ex-, clusively for public worship should be exempt, because the first term would, by implication, include the other, and, so, too, it would be entirely unnecessary to provide that public school houses, except only those school houses the title to which was in some subordinate body of the state, should be exempt, because they would be included in the broader designation of institutions of purely public charity and the second exemption was unnecessary. Gerke, Treas., et al. v. Purcell, 25 Ohio St., 229; Humphreys, Auditor, et al. v. The Little Sisters of the Poor, 29 Ohio St., 201; Donough’s Appeal, 86 Pa. St., 306.
    The priests’ houses are residences, or parsonages, as the term is ordinarily employed in the connection with the use of such places, and are. subject to taxation.
    A parsonage, although built on ground which might otherwise be exempt as attached to the church edifice, does not come within the exemption. The ground in such case is appropriated to a new and different use. Instead of being used exclusively for public worship, it becomes a place of private residence. Gerke, Treas., et al. v. Purcell, 25 Ohio St., 229.
    The word “institutions” is used to designate a corporation or other organized body interested to administer the charity; and the real estate described as belonging to such institution has reference to the property owned by them. Humphries, Auditor, et al. v. The Little Sisters of the Poor, 29 Ohio St., 201.
    Consequently, under this definition, the building is not the institution of public charity, but it is the corporation or other organized body which owns the building, and which is interested to administer the charity. It is therefore clearly a misnomer to contend that the priest’s house is an institution of purely public charity.
   Price, J.

After this case had been submitted and considered on the elaborate briefs of counsel of record, and a judgment rendered, it was allowed that other eminent counsel, not connected with such briefs for the plaintiff in error, might be heard orally and by brief in furtherance of his claims in this proceeding. These additional arguments have been made, and we now briefly state our views of the long-continued but still important controversy.

The plaintiff in error prevailed in the lower court, in a large measure, and the defendants have filed a cross-petition in error, asking a reversal of so much of the decree of the circuit court as exempts from taxation certain pieces of property therein pointed out. As a result of the findings and decree of the lower court, so largely in favor of .the- plaintiff in error, his present complaint- is narrowed to the question of taxing what are denominated “priests' houses,'' or commonly known as residences of the priests. All the oral argument centered upon this question, and its decision is controlled by the facts as found by the circuit court; for we are not required to wade through the great mass of testimony in order to arrive at a conclusion on its weight, where conflict exists.

It is not out of place here to say in advance that we do not regard the claim of plaintiff in error as either technical or frivolous, for the cause he represents has substantial character and legal merit worthy of the careful consideration we havé given it. Nor is the idea entertained by this court that the great Catholic Church here represented, and which is always loyally submissive to the lawful authority of the state and nation, is now seeking to evade the discharge of a legal obligation, if that obligation is made to appear. The earnestness of its appeal refutes such a view of the case.

The Diocese of Columbus, like the others, is a jurisdictional division of the Roman Catholic Church, and is presided over by the Bishop. By virtue of his appointment as such Bishop, and under the laws governing such church in the State of Ohio, all the property mentioned in the petition and cross-petition is held by the plaintiff (the Bishop) in his own. name, in trust for the sole uses and purposes of said Roman Catholic Church, such as its places of public religious worship, its public parochial schools, academies; its congregations in the respective parishes, and its institutions of purely public charity, and its public institutions of learning. The diocese is divided into parishes, which are presided over by a pastor appointed by the Bishop, and the church edifice, schools, priests’ houses and other buildings upon the church property, within the respective parishes, belong in equity to the respective parishes. (See second finding of fact.)

It has also been found, in general, that the Roman Catholic Church is an institution which has for its chief and primary object and purpose the teaching and extending of its recognized forms of religious belief and worship into all parts of the world, and that it was founded to continue the work of Christ on earth, and “to teach, govern, sanctify and save all men.” (Third finding of fact.)

Also, that charity is included in all its teachings, purposes and practices, as subordinate to its spiritual teachings and purposes, but as an essential part of its general scheme of church work. (Fourth finding of fact.)

Also, that the public, without distinction or discrimination as to race, condition, creed, or otherwise, are fully admitted to all the churches and religious services, to the public parochial schools, academies, asylums, and to all its other charitable institutions, and all its churches, schools, academies, educational institutions, asylums, hospitals and other purely public charitable institutions and societies, and the benefits derived therefrom are open and free, and available to all persons upon the same conditions, irrespective of creed, race, condition, or otherwise. (Fifth finding.)

Also, it has been found by the lower court that, the members of the church support and maintain it and its schools and benevolent, educational and charitable institutions by their voluntary contributions, and all the real estate in controversy was donated and purchased and paid for, in so far as the purchase price has been paid, by the voluntary contributions and offerings of the members of said church, and its congregations, and by others interested in the religious, educational and charitable purposes of said church. (Sixth finding.)

The only purpose of acquiring and holding the real estate in controversy was to subserve the religious, educational and charitable purposes of the said church, and the respective congregations and charitable institutions, and the buildings thereon, are permanent, and intended to and do subserve the same purpose; and no part of said real estate or buildings has ever been leased or- otherwise used with a view to profit, and no income, rent or profits whatever is or has ever been derived from either said real estate or the buildings thereon. ( Seventh finding.)

The Bishop and priests are celibates, and, under the vows of their ordination, their entire lives are devoted to teaching and preaching the gospel, administering the sacraments; to works of purely public charity; to organizing religious congregations and benevolent, charitable and temperance societies; to building churches, public parochial schools, asylums, hospitals, and other institutions of purely public charity, and sustaining them. (Eighth finding.)

The duties of the priest are multifarious. He administers all the affairs of the church, both spiritual and temporal, and has charge of the public parochial schools, societies, hospitals and charita-' ble institutions within the parish; is principal of the parochial schools, attends them daily, and sometimes teaches in them. He must go to the church edifice every morning to celebrate mass, and there administer the sacraments every day, and sometimes more frequently. He must conduct services in the church every Sunday and on holjdays. He must, and does, respond at all hours of the day and night to calls from sick persons, irrespective of creed, and those in distress, or desiring to make confessions, the latter being required to be heard in the church, except occasionally confessions of men. He solemnizes the marriage rite, and conducts religious exercises at baptism and burials. (Ninth finding.)

The priest performs many. of his duties at his place of residence, known as the priests’ houses. He there keeps the books of account of the financial transactions of his parish, and also a- record of the marriages, baptisms, interments and confirmations. The priest’s house is used as a place of instruction for converts and for children preparing for the first communion. Sometimes classes of school children are taught there. The confessions of men are occasionally heard there. The total abstinence pledge is administered and the marriage ceremony occasionally performed there. It is the duty of the priest to keep a light perpetually burning in the church edifice, in front of the Blessed Sacrament. (Tenth finding.)

The priests’ houses are also used as places for the distribution of gifts to the worthy pot>r, regardless of their religious belief, their race, and without discrimination. Contributions are there received and dispensed. The priest is in charge of the houses and dispenses these charities. Temperance, benevolent and other charitable societies and institutions are there formed and • fostered. ' The committees of the church and school, as well as the church choir, sometimes meet there. Family and neighborhood disputes are there settled, and the priest is the arbitrator to settle such disputes. The religious, charitable, educational and benevolent work of the congregations is directed and carried on from the priests’ houses. The parents of the school children, teachers and scholars, and others interested in the work of the congregation and its societies, there consult the priest about the schools and the work of the congregation. (Eleventh finding.)

All of the priests’ houses are in constant and hourly use for said purposes, and these facts, together with the frequency of the demands for the priest’s presence at the church, render his residence in the immediate vicinity thereto a great convenience, if not a necessity; and all are free of charge, and no profit is derived therefrom. (Twelfth finding.)

The priests lodge and board in the priests’ houses, which, with respect to all the property in controversy, are built on the grounds attached to the respective churches and schools, except in the second parcel, where the priest’s house is separated from the combined church and school by a twenty-foot alley, and all were built and paid for and furnished by the voluntary contributions of the respective congregations'; and the grounds thus occupied are not more expensive than they might be, and be reasonably appropriate and necessary for their proper occupancy, use and enjoyment of the schools and churches, if used for no other purpose than as connected therewith. These houses are sometimes separated from the church and school, and in others are directly connected with them.

The priests and Bishop and their assistant priests, and the domestics, are the only persons that lodge in said houses. (Thirteenth finding.)

On the facts thus stated, the circuit court held that the houses of the Bishop and priests are not exempt from taxation. Has the law been properly applied to the facts ?

Our constitutional provision with reference to taxation, as it stood before the late amendment exempting certain classes of bonds, and so far as pertinent here, reads: “Laws shall be passed, taxing by a uniform rule all moneys, credits, etc., etc.; * * * also all real and personal property, according to its true value in money; * * * but burying grounds, public school houses, houses used exclusively for public worship, institutions of purely public charity, public property used exclusively for any purpose, and personal property, to an amount not exceeding in' value two hundred dollars for each individual, may by general laws be exempted from taxation” * * * (see Section 2 of Article XII).

This section furnishes the governing principle for all laws levying all taxes for general revenue, and as to the class of property now in controversy, the legislature has provided Section 2732, Revised Statutes, in part as follows: “The following property shall be exempt from taxation: First. All public school houses, and houses used exclusively for public worship, the books and furniture therein, and the grounds attached to such buildings necessary for the proper occupancy, use and enjoyment of the same, and not leased or otherwise used with a view to profit; all public colleges, public academies, all buildings connected with the same, and all lands connected with public institutions of learning not used with the view to profit. * * *

“Second. All lands used exclusively as graveyards, or grounds for burying the dead, except, etc. * * *

“Third. All property, whether real or personal, belonging exclusively to the state or United States.

“Fourth. County buildings (describing them).

“Fifth. All lands, houses and other buildings belonging to any county,, township or town, used exclusively for the accommodation or support of the poor.

“Sixth. All buildings belonging to institutions of purely public charity, together with the land actually occupied by such institutions, not leased or otherwise used with a view to profit, and all moneys and credits appropriated solely to sustaining, and belonging exclusively to, such institutions.”

By later legislation, armories of lawfully organized military organizations were added to the exemption under this clause.

By the terms of the above provision of the constitution and the sixth clause of Section 2732, Revised Statutes, both already quoted, it is urged that the residences of the Bishop and priests are exempt, and therefore we are required to consider, if not construe, these provisions in the light reflected by the facts of the case. As to exemptions claimed by individuals and corporations for profit, the rule seems to be, that the .right to exemption under the law should be reasonably clear, the presumption being that all property is subject to taxation by a uniform rule, to the end that all property bear its due share of the burdens of government. And while we do not apply strict rules of construction in cases where religious, charitable and educational institutions seek exemptions, we think such right to exemption should appear in the language of the constitution or statute, with reasonable certainty, and not depend on their doubtful construction. A much more stringent rule is laid down in Lee, Treasurer, v. Sturges, 46 Ohio St., 153. In that case the question was the liability to taxation of certain stock in a corporation, which the owner claimed to be exempt under the statute. Spear, J., in the opinion, on page 159, uses this language: “And further, that when an exception or exemption is claimed, the intention of the general assembly to except must be expressed in clear and unambiguous terms.” * * * But we are not disposed to use that rule in this case, believing that' the rule, as we now have stated it, is as liberal as plaintiff in error can ask, viz.: that the right to exemption should appear in the language of the constitution or statute with reasonable certainty, and not depend on their doubtful construction. There is no presumption of exemption from taxation because the institution claiming it is of a religious or charitable nature, for it is perfectly competent for such institutions to own property clearly subject to taxation.

Looking again to the constitutional provision under consideration, we see that burying grounds, public school houses, houses used exclusively for public worship, institutions of purely public charity, * * * may, by general laws, be exempted from taxation. The burying grounds or cemeteries mentioned in the pleadings and findings, were declared exempt by the lower court; also the churches and cathedral, as places used exclusively for public worship; also the public parochial schools, and the church's institutions of purely public charity. Other “public school houses,” and “public property used exclusively for any public .purposes,” are not involved, for the Catholic Church is not claiming to own such “public school houses” and such “public property.” And when the general assembly acted under this constitutional authority, it said, in Section 2732, Revised Statutes, that “public school houses, and houses used exclusively for public worship, * * * and the grounds attached to such buildings necessary for the proper occupancy, use and enjoyment of the same, and not leased or otherwise used with view to profit,” are exempt. And by the sixth clause, “all buildings belonging to institutions of purely public charity, together with the land actually occupied by such institutions,' not leased or otherwise used with a view to profit,” * * * are exempt'.

It is manifest, from the carefully worded language of these provisions, that the legislature intended to place strict limitations upon exemptions, and great caution has been exercised in the terms expressed, so that the right of exemption conferred would not be abused or unduly enlarged, and such restrictions are essential to a fair and equitable sharing in the burdens of taxation.

In the case at bar, we find that the Catholic Church erected its places of public worship, and they are houses used exclusively for that purpose, and the different parishes provided places of residence for their priests, and whether denominated parish houses, or houses for the priests, they were erected and are being used by the priests and their assistants as places of residence. While they are celibates, and not the heads of families, as is common in Protestant denominations, they necessarily have household help and domestic service in order that these houses be what they should be— places of residence. While the priests devote themselves wholly to the service of God and to works of religion and charity, although universal in character, they, like other men, have the physical and temporal wants for which provisions must be and are made. Besides the religious and charitable duties performed, and the dispensing of charities in these houses, they are places open to social calls and the extension of the proper and pleasant amenities of life.

The religious rites and ordinances of the church organization are celebrated or observed in the places of public worship, although occasionally the confessions of men are heard and the marriage ceremony is performed in the house of the priest. There, too, the financial accounts of the parish are kept, records of marriages, baptisms, interments and confirmations. The house is used as a place of instruction for converts, and for children preparing for their first communion, and sometimes school children are taught there. To these houses committees of the church and schools may resort, and they are used as places for the distribution of gifts to worthy poor, regardless of religious belief, their race, and without discrimination. From them the religious, charitable and educational work of the congregation is directed. Many other services for the church are there rendered, which are enumerated in the above findings. It is not found as a fact that all such services are necessarily rendered at these parish or priests’ houses; but no doubt some of them are of that character. But it is clear that such houses are primarily places of residence, as the church building is primarily a place of public worship; and it does not alter the law, as we think, that the increasing demands upon the time and devotion of the priest make it necessary or convenient to perform many of his duties at his place of residence. We have no doubt that the parsonage of the Protestant pastor is used for many services similar in character and purpose.

The exemption is not of such houses as may be used for the support of public worship; but of houses used exclusively as places of public worship.

In Gerke, Treas., et al. v. Purcell, 25 Ohio St., 229, this rule is expressed in the tenth paragraph of the syllabus, as follows: “A parsonage, although built on ground which might otherwise be exempt as attached to the church edifice, does not come within the exemption. The ground in such case is appropriated to a new and different use. Instead of being used exclusively for public worship, it becomes a place of private residence. The exemption is not of such houses as may be used for the support of public worship, but of houses used exclusively as places of public worship.”

And in this connection it is well to note the frequency of the use of the word exclusively in the several clauses of Section 2732, supra. It was evidently intended that such word should be given special consideration when the right to exemption of property is presented for decision, and its frequent use by the legislature, we think, is significant.

But we are told that we should not now be influenced by the above case, “because a careful examination of that case will show that the court did not consider or pass upon any question presented in this brief; that the parsonages were not considered in any other aspect than as 'houses used exclusively for public worship/ and not as buildings belonging to institutions of purely public charity; that the record in that case did not show the auxiliary or incidental character of the residential features, but, on the contrary, characterized such features as the only use of the priests' houses,” etc. This leads us to examine more minutely what was involved and decided in the case referred to; and we find in the statement of the cáse that Purcell, as Archbishop of the Roman Catholic Church for the Diocese of Cincinnati, filed a petition in the superior court to enjoin the collection of taxes on various pieces of real property which he claimed were exempt from taxation. As to part of the property, a perpetual injunction was granted; and as to the remainder, the petition was dismissed. Gerke, treasurer, prosecuted error on two grounds: (1) That the court erred in enjoining the collection of the taxes .levied on the parochial school houses and playgrounds connected therewith; (2) In enjoining the taxes levied on the property used as parsonages. The statement continues as to the parsonages, and says: “They are usually, though not invariably, built on the ground attached to the church edifice, and the grounds are not more extended than they might be, and be exempt from taxation, if used for no other purpose than as connected with the church edifice as a place of worship. These are sometimes separated from the church edifice, and in others directly connected with it. They are the residences of the priests, for which they pay no rent, and from which source the church derives no profit, otherwise than saving' the expense of providing such residences elsewhere.”

From this statement it is seen that Gerke was insisting on taxing both the parochial schools and playgrounds and the parsonages, and his counsel, in their brief, asserted, in substance, that “in no légal sense are the schools of the Roman Catholic Church public and within the exemptions of the act, nor are they free. Revenue is derived from them, and whether the amount is sufficient to maintain them is immaterial.” Again, they say: “The Catholic schools of the defendant in error are purely private and sectarian.” * * * Again: “It is clear that the schools of the defendant in error do not fall within the class referred to in these enactments, or within any class of schools legislated for by any act of the Ohio legislature.” The brief, as found in the report of the cáse, does not discuss the taxation of parsonages. When we look to the brief of the eminent counsel for Purcell, we see that they state the issue as follows: “There are four classes of property the taxation of which is in dispute in this case: (1) The Roman Catholic parochial school houses; (2) The playgrounds connected therewith; (3) Two vacant lots used in connection with the church edifices; (4) Priests’ dwellings.” Again, in speaking of the exemption of the playgrounds, they say:- “It is just as true that the dwellings of the clergy are necessary to the proper occupancy, use and enjoyment of the churches and schools of the Roman Catholics.” Then counsel proceeded in the latter part of their brief, as reported, to discuss the meaning of “public schools,” as mentioned in the exempting statute, as compared with the use of the words, “institutions of purely public charity.”

White, J.,

on page 244 of the opinion, in speaking of the schools as institutions -of purely public charity, says: “As to the first of these questions, it seems to us the charity is to be regarded as purely public. For the purpose of determining the public nature of the charity, it is not material through what particular forms the charity may be administered. If it is established and maintained for the use and benefit of the public, and so conducted that the public can make it available, this is all that is required. But is it competent for the legislature to treat the buildings and lands connected therewith, used for carrying on the schools, as institutions, or as property belonging to institutions? The term ‘institution’ is sometimes used as descriptive of the establishment or place where the business or operations of a society or organization is carried on; at other times it is used to designate the organized body. It is used in both senses in the third section of the tax law brought under consideration in this case. It is used in the former sense in the first clause of the section, where it is disclosed that ‘all lands connected with public institutions of learning, not used with a view to profit, shall be exempt.’ In the sixth clause of the section it is used in the latter sense, and the property referred to is described as belonging to the institutions named.”

And on page 245, in speaking of colleges and other high institutions of learning not founded by the state, it is said: “All of,these institutions stand, as respects their claim to exemption from taxation under the constitution, on the ground of their being institutions of purely public charity.” * * * After all the careful discrimination in the use of the statutory words touching “houses used exclusively for public worship,” and “institutions of a purely public charity,” we can not agree with counsel that the court and counsel in that case overlooked the relation which the priests’ houses or parsonages sustained to institutions of “purely public charity.” On the other hand, we think all clauses of the exempting statute must have been held up to view and most carefully scrutinized. The scope of argument and decision satisfactorily indicate this. No doubt the heat of the controversy was over the parochial schools and playgrounds; but the construction of statutes to save them from taxation reflected as well on the claim as to the parsonages. We can not believe that the eminent counsel and the learned court overlooked or lost sight of one of the most prominent clauses of the section. And what conclusion did the court reach as to them? On page 248 it is said: “But a parsonage, although built on ground which might otherwise be exempt, as attached to the church edifice, does not come within the exemption. The ground in such case is appropriated to a new and different use. Instead of of its being used exclusively for public worship, it becomes a place of private residence. Nor does it make any difference that, by the usages of the church, the presence of a priest or pastor is essential to conduct the services of public worship. Other persons are necessary to carry on public worship as well as a minister to conduct the services. There must be a laity or congregation as well as a minister or preacher, and it is equally necessary that they should have places of abode; yet it would not be claimed that, their residences should be exempt.” * * *

Because the court did not speak of such parsonages as buildings not belonging to “institutions of purely public charity,” we must not infer that they were not weighed by that test of the statute.

But if the question is not foreclosed by Gerke v. Purcell, supra, are priests’ houses “buildings belonging to institutions of purely public charity” within the meaning of clause six of Section 2732? We think not.

This section classifies property for the purposes of exemption, as plainly appears in a reading of it. First come all public school houses and houses used exclusively for public worship, etc.; second, cemeteries; third, state and federal property, etc.; fourth, county buildings; fifth, poor houses, etc.; sixth, all “buildings belonging to institutions of purely public charity,” etc. It is evident that the parsonage is not itself an “institution” of such character, for at least one reason, that the parsonage has a mixed use, as we have observed, and would not be a building used for purposes of purely public charity. Then to what “institution” does the parsonage belong? While the legal title is in the Bishop in trust, as is true of all church property, the real ownership is in the parish where it is located; in other words, in the Catholic Church, either locally or generally. Is the Catholic Church, locally or generally, an “institution of purely public charity”? Like the word “exclusively,” as used in preceding clauses of said Section 2732, the word purely expresses a kindred limitation, or rather exclusion, in that it means free from mixture or combination, and, as applied in the present connection, the charity must be unalloyed with other purposes and objects. But the Catholic Church, to which the parsonages or priests’ houses belong, is not an institution of purely public charity. It teaches and practices charity; but that is not its whole mission in the world. Its character is defined by the third and fourth findings made by the circuit court. There it is said: “The Roman Catholic Church is an institution which has for its chief and primary object and purpose the teaching and extending of its recognized form of religious belief and worship into all parts of the world, and was founded to continue the work of Christ on earth, and to teach, govern, sanctify and_ save all men.

“Charity is included in its teachings, purposes and practices, as subordinate to its spiritual teaching and purpose, but is an essential part of its general scheme of church work.” * * *

So it seems that, instead of the church to which the residence of the priest belongs being an “'institution of purely public charity,” it is a religious institution primarily, and its charity is subordinate to its spiritual teachings, and consequently the exemption claimed is not authorized by the sixth clause of the section. In the first clause, school houses and churches are not dealt with as “institutions of purely public charity,” but as what the clause asserts them to be, “public school houses, and houses used exclusively for public worship,” etc.; and we think it is not permissible, when the exemption fails under the first clause, to abandon the religious character of the church edifice and organization and their relation to each other, and save the parsonage as a building belonging- to an “institution of purely public charity.” The use to which the property is devoted determines its right to exemption, under any clause of the section.

Again, it is said of the case of Gerke v. Purcell, supra: “The record in that case did not show the auxiliary or incidental character of the residential features, but on the contrary characterized such features as the only use of the priests’ houses.” True it is that the record of that case as reported does not develop fully the various religious and charitable services rendered at the parsonage by the priest, as is done in the case at bar. But his duties, we venture to assume, are common to the priesthood of both Cincinnati and Columbus, but they may vary in number and degree. In both jurisdictions, the priests are celibates, without families, of course, and are boarded and lodged in the parsonage, where ordinary domestic’s services are required. And the calls of charity and other duties to be answered at and from the parsonage, we presume, are common to both cities, if not universal in that church. Therefore, we are not able to perceive a line of distinction between the two which shakes our confidence in the judgment in Gerke v. Purcell, supra.

Our views as to the exemption statute are not in conflict with the holdings in Humphries, Audi tor, et al. v. The Little Sisters of the Poor, 29 Ohio St., 201. Indeed, we think our consideration of the terms, “buildings belonging to institutions of purely public character,” is fully authorized by the doctrine of that case. Nor is the case of Little, Treas., v. The U. P. Theological Seminary, 72 Ohio St., 417, an obstacle in our pathway when its foundation principle is once discovered and understood.

The case of Davis, Auditor, v. The Cincinnati Camp Meeting Assn., 57 Ohio St., 257, is also relied on to support the contention of plaintiff in error. The facts of that case as reported by the court are somewhat extended, while the opinion of the court is brief, as is usual in a per curiam. We think that the court in that case traveled toward the extreme of liberal statutory construction, and we can not apply its logic to the facts of the case in hand.

As to the cross-petition in error, we need only say that we have not been convinced that error was committed by the circuit court on any of the grounds assigned therein. We are unanimous in adhering to our former judgment.

Former judgment adhered to.

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.