was held exempt, although a portion of the land, being waste and swampy, was not used for any purpose. In determining what real estate is necessary for the purposes of such institutions, it is not limited to what would appear to the court to be necessary, but it will apply to all real estate occupied by it or its officers, and intended for and appropriated to the purposes of the institution by its officers, in the absence of anything to show an abuse of the discretion vested in them as its officers. Where a statute exempted from taxation property occupied for charitable purposes, and land was purchased for the erection of a hospital, and the parties were proceeding diligently with the preliminary measures necessary to the erection of the buildings, it was deemed as occupied in the sense of the statute, and exempt. So the exemption of houses of religious worship extends to the land on which they are erected, and where a religious society purchased a lot, and devoted it in good faith to the erection of the church edifice, and the work had been begun by driving piles for a foundation, but no further progress had been made when the tax was assessed, the lot was considered as exempt. Under a statute exempting land so long as it should remain dedicated for the purpose of a cemetery or burial place for the dead, a tract of land intended for a cemetery, on which trees and shrubs had been planted, and stone and other material deposited, for the purpose of ultimately preparing and ornamenting the cemetery, but which had not been used for burials, or divided off or laid out into lots or permanent avenues, nor had any attempt been made to sell lots for burial purposes, such a tract was deemed not dedicated to the purpose of a cemetery so as to be exempt.5 A statute exempting institutions of purely public charity, does not apply to property held by the Independent Order of Odd Fellows." § 72. Religious Associations.-The exemption of the property of religious associations extends to all their property used for such purposes, but does not extend to any part of their property which may be used for secular purposes. Where a lot was owned by a church, and on part of the lot the church building was erected, the remainder of the lot being occupied by business houses which were rented out, the exemption applies only to the part on which the church building 'Wesleyan Academy v. Wilbraham, 99 Mass. 599. ? Mass. Gen. Hospital v. Somerville, 101 Mass. 319. 3 New England Hospital v. Boston, 113 Mass. 518. 4 Trinity Church v. Boston, 118 Mass. 164. 5 Woodlawn Cemetery v. Everett, 118 Mass. 358. Morning Star Lodge, No. 26, &c. v. Hayslip, 54 Mo. 144. 8 is erected.1 It is only the property actually used and occupied by either religious or literary institutions that is exempt.* In Indiana, under a statute exempting "every building erected for religious worship, and the pews and furniture within the same, and the land whereon such building is situate, not exceeding ten acres," a parsonage erected for a pastor's accommodation is not exempt. So, where a statute exempts "all houses of religious worship, and the pews and furniture within the same." The upper part of a building was used for religious worship; in the basement there were stores which were rented out; the court held the exemption did not extend to the seperate tenements used for secular purposes. There may be several distinct tenements under the same roof, and they are as essentially distinct when one is under the other, as when one is by the side of the other. Virginia imposed a tax of one per cent. "on all yearly income in excess of $400, received in consideration of the discharge of any office or employment in the service of this commonwealth, or in the service of any body politic or corporate, or any partnership or individual." The salary of a minister of the Gospel paid him by his congregation was not included under this law; the employment referred to is secular employment. The term "settled ministers," in a statute exempting them from taxation, means one ordained over some particular society, which shall be entitled to his services and bound for his support. § 73. Railroads.-Property sequestered to the public use is exempt from taxation, and where the right of eminent domain is allowed to be used for a corporation, as in the case of canals and railroads, some of the States hold that all property of such corporations used by them, and necessary to the proper working of such roads or canals, is exempt from taxation upon this principle, that it is considered as property appropriated to public use; the property is vested in the corporation, but it is in trust for the public; they are obliged to use it for a well-defined public object. The exemption in the case last cited was by statute, but the reason given for it is the sanie. 1 Orr v. Baker, 4 Ind. 86. 2 Washburn College v. Commissioners, 8 Kansas, 344; Morrison v. Larkin, 26 La. Ann. 699; Vail v. Beach, 10 Kansas, 214. 3 Methodist Church v. Ellis, 38 Ind. 3; Gerke v. Purcell, 25 Ohio, N. S. 229. 4 Meeting House v. City of Lowell, 1 Metc. 538. 5 Plumer's Case, 3 Gratt. 615. Ruggles v. Kimball, 12 Mass. 337. 7 Meeting House v. City of Lowell, 1 Metc. 538; Worcester v. Western R. R. Co., 4 Id. 564; Schuylkill Nav. Co. ". Berks Co. 11 Penn. St. 202; Lehigh Coal Co. v. Northampton Co. 8 Watts & Serg. 334; Bridge Co. v. Frailey, 13 Serg. & Rawle, 442; Middleburgh v. Cheney, 7 Vt. 380, case of a college; Vermont Central R. R. v. Burlington, 28 Id. 193. This exemption of the property of corporations, by reason of its being held in trust for the public, does not apply to the franchise of the corporation nor the stock of the shareholders, except so far as the value of the stock may be reduced by the exempted property. It extends only to such property of the corporation as is appurtenant and indispensable to the construction and operation of the road or canal. In applying this rule to a transportation corporation, part canal and part rail, reservoirs for supplying the canal with water, houses and gardens occupied by lock-tenders and collectors along the canal and railroad, engines and machinery for raising cars up the planes, and the engine houses, house and gardens occupied by engineers attending the engines, collectors' and engineers' offices in Hornsdale, were exempt; but buildings in Hornsdale, at the junction of the canal and railroad, used for receiving and transhipping goods and merchandise to and from the canal and railroad, houses used as boarding houses for workmen, horses for drawing cars on the railroad, and the barns and stables used for their accommodation were not exempt.1 In another case the bed of the road, the water stations and depots, including, under the latter, the offices, oil houses and places to hold cars, are deemed to come within the rule, and as such exempt, while warehouses, coal lots, coal shutes, machine shops and wood yards, are taxable. Similar rules of construction are applied where the property of corporations is exempt from taxation, either in consideration of a bonus paid, or a special tax in lieu of all other taxes. The charter of a railroad company declared that "the stock, property and effects of the company shall be exempt from a'l taxes levied by or under authority of the State." Land owned by the company for purposes of fuel, or land on which they had erected buildings for those in their employ, was not exempt. The exemption was limited to the land in the six rods, lands for the depots, and all structures thereon necessary for the support and convenient use of the road, and to such land as was taken by the proceedings in invitum and the structures thereon, the property having been taken against the consent of the owner; this is held in trust for the public, the other is not. Where a charter of a railroad provides for the payment of a bonus for the franchise, and "exempts the corporation from all further taxation," all property necessary for the purposes of the road is included in the exemption; but such property as is merely convenient to the road in the exercise of its privileges, is not exempt. Houses and lots 1 Com'rs of Wayne Co. v. Delaware & Hudson Canal Co. 15 Penn. St. 351. 3 owned by a railroad, and let by them to their workmen and employees, not on the strip of land taken and held for the purpose of constructing the road, are merely convenient and not necessary, and are taxable. The court, in this case, say that depots, cars and engine houses, tanks, repairing shops, houses for bridge and switch tenders, coal and wood yards, are necessary appendages to the operation of a railroad and transportation company, and its power to hold for these purposes will be implied without express grant in its charter; but lands for dwellings for employees for car or locomotive factories, coal mines and matters of that kind, are things of convenience, and not of necessity. Exempt property of a company for useful manufactures does not include mountain lands owned by it. Where a railroad pays a tax on its capital stock, and is exempted by charter from further taxation, the following property was not included: a lot with a barber shop on it, a house occupied by tenants, a lot and shop occupied by a third party as a foundry, a dock on the Passaic river, not in the line of the railroad, occupied by a freighting company, and a dock still more remote, used as a lumber yard. Where the charter exempted the property of a canal, "possessed, occupied and used by the company for the actual and necessary purposes of canal navigation," and the company owned a basin at the end of the canal on the Hudson river, and pier lots reclaimed from the river-the basin being used by the canal-boats free of charge, the lots being used for storing coal and other freight transported on the canal, other freight being also stored, but preference always being given to canal freight, the canalboats lashing to the pier-this property was held exempt as being in the actual occupancy and use of the company. But real estate not used or occupied for the necessary purposes of a railroad company is liable to taxation, notwithstanding it pays a tax on its capital stock, and is exempt from all further taxation. As to the question of actual use, heretofore discussed, the court say in 6 Vroom, that there is a distinction to be observed between roads completed and not completed. In the latter case the exemption words must be extended to property not actually used for other purposes, which has been acquired as a means of carrying into effect the objects of the charter, and which is fairly within the plan upon which the work is being executed, and will be necessary when its contemplated improvements are completed. 1 Stat v. Mansfield, 3 Zabr. 510. 5 State v. Mansfield, supra; State v. Blundell, 4 Zabr. 402. 3 State . Newark, 2 Dutch, 519. 4 State v. Betts, 4 Zabr. 555; State v. Haight, 35 N. J. Law (6 Vroom), 40. A railroad paid a tax on its capital stock, and was exempt from all further taxation. The road was not completed, but boats were used at its terminus to ferry passengers and merchandise across the Hudson river to New York. Held, that the boats were not liable to taxation; they were a part of the property of the company represented by the capital stock. Property necessary to accomplish the ends for which a railroad was incorporated is exempt, where the road pays a specfied tax, and its charter provides that no other tax shall be imposed; and such an exemption extends to a tract of gravel land purchased to provide materials for the repair of their road, and to a branch road connecting the gravel beds with the main road, also to materials necessary for purposes of laying, building and sustaining the road. The court in the case in 6 Vroom, 537, criticises the opinion in State v. Mansfield, as to the meaning of the word "necessary," saying it is not to be contradistinguished from the word convenient, that it does not mean indispensable, but embraces all things suitable and proper for carrying into execution the powers granted, and approves the definitions of the word in McCulloch v. Maryland.5 Where a company was chartered to manufacture nails and cotton and woolen cloth, with an exemption from taxation for ten years, of all buildings, machinery and capital employed, a store of goods such as are usually sold in the country, owned by this company, was held liable to taxation, this being a diversion of the capital of the company from the purposes for which the charter and exemption were granted. Where a tax was imposed on railroads of one-quarter of one per cent. on the market value of their capital stock, &c., this tax "to take the place of all other taxes on railroad property and franchises within this State," property of a company not used by it was declared exempt, upon the principle that statutes should always be so construed as to avoid double taxation, if possible. A statute imposed a tax on a railroad company of one per cent. on the cost of the road," in lieu of all other taxes to be imposed within the State." The company owned lands granted to aid in the building of the road, which were mortgaged and were being sold, to pay off the debt of the company. Such lands do not come within the exemption. It has no reference to 319. 1 State ex rel. N. J. R. R. & Transportation Co. v. Haight, 34 N. J. Law (5 Vroom), State ex rel. N. J. R. R. & Transportation Co v. Hancock, 35 N. J. Law (6 Vroom), 537; rev'g s. c. 33 N. J. Law (4 Vroom), 315. Bibb Co. v. Cent. R. R. & Banking Co. 40 Ga. 646. 4 3 Zabr. 510 5 4 Wheat. 414 (Cond. U. S. 426.) The Souhegan Nail, Cotton and Woolen Factory v. McConihe, 7 N. H. 309. |