
    *John Kendrick v. William Y. Farquhar.
    The exemption from taxation of lands owned by literary institutions, and of buildings occupied by students under instruction, does not extend to a house occupied as a residence by a professor of the institution, and erected on its lands..
    This case was adjourned from the county of Knox. It was an action of trespass, for breaking and entering the plaintiff’s house. The defendant pleaded that he entered to distrain for taxes due on the house. The plaintiff replied, that the house was a professor’s, situate on the lands of the theological seminary, Kenyon College, and was not subject to taxation. Demurrer to the replication and joinder. In addition to the pleadings, there was an agreed case stating the came facts.
    Brown and Mitchell, for plaintiff:
    The statute of March, 1831 (29 Ohio Stat. 372, 373, sec. 2), enacts, that all lots of land, or ground, set apart for school-houses, academies, or colleges, with the buildings thereon occupied for those purposes, and all lands the property of any such academy, or other seminary of learning, which now is, or hereafter may be, established in this state, including all lands granted by Congress for the use of schools, academies, colleges, and for religious 'purposes (but the buildings, or any of them not occupied for. literary purposes, may be taxed), shall be exempt from tax. Under this statute, the premises in question were not taxed; and it is thought that the county authorities do not claim that they are taxable under it, but that they become so under the statute of 1834. We will examine, however, the ground for taxing them under this statute just recited. The only questions that can, or at any time could arise under it, would be, first, is the building on lands belonging to a seminary of learning? This determined, in the affirmative, the next and only question is, is it used for literary purposes? This determined in the affirmative,the property must be exempt according to the express provisions of this statute. It is admitted that the buildings in question are on the land of the theological seminary. The next question, and the one for the court to determine, is, are they (the houses referred to in this ease, one of which is described in the pleadings), used for literary purposes, being used as the residences of professors of the college? It does seem that no intelligent mind can for a moment doubt upon this subject. The professors are the most essential part of any institution of learning, and are *there, and accomraodated there, for literary purposes, and none other. So if any buildings connected with a college are used for literary purposes, those used for the accommodation of professors, the heads of the literary department, surely are.
    But it is claimed, by the county authorities, that the statute of 1834 (32 Ohio Stat. 12), providing for the revaluation of real property, makes an alteration in this particular, and that by section 5 of that act, the house in question is taxable.
    This statute declares, section 5, that the appraiser shall “ proceed "to list and appraise, at its fair cash value, all real estate made tax■able by the act pointing out the mode of levying taxes, passed March 14, 1831, conformable with the provisions of said act. The •excess over and above $200 on ail houses, except the property exempted from taxation by section 2 thereof: all town in-lots, and out-lots, subject to taxation; also all buildings and other improvements, in like manner erected upon, or affixed to, school and •college lands, or on lands granted for religious purposes; also all buildings, and other improvements in like manner erected upon, ■or affixed to, any town lots laid out on such schools and college land, or lands granted by Congress for religious purposes.
    The question now presented is, does this statute repeal, or in any way alter the force of the statute of March 14, 1831 ? It is a rule laid down by Blackstone (vol. p. 1, 89), that one part of a statute must be so construed by another that the whole may (if possible) stand. Can, then, this statute be so construed as to give to that clause, in section 5, which points out the property to be exempted, full force, and still make it consistent with the subsequent part of the section, declaring that all buildings, etc., erected on school and college lands, etc., shall be appraised.
    To give it such a construction would seem to us very natural, but to some it seems otherwise. It has been contended by those members of the board of equalization, who were in favor of taxing, that the latter part of this section has the effect to repeal •the former part, and also section 2 of the statute of 1831; still that same board of equalization did not include in their approved list of appraisements the large stone edifice called the college building; and this is a building on the college land; and if section 2 of the statute of 1831 is repealed by the statute •of 1834, subject to be taxed under the general expressions in the statute of 1834. But here they desert their strict construction *of the last clause of section 5 of the statute of 1834, and let in section 2 of the statute of 1831, with all its force. According to their own acts, then, the question, in regard to taxing the houses in controversy, seems not to be in reality one of ■the construction of the statute of 1834, but as to what shall be the construction of that of 1831; for if they would but exempt one building on school or college lands, they consequently give up their strict construction of the latter clause of section 5 of the .•statute of 1834, which reads also, all buildings and other improvements. etc., and resort to the statute of 1831 to exempt that one. If, then, the statute of 1831 be in force to exempt one, it is in .force to exempt all which are included in the clause which exempts -that one. Hence, then, according to the acts of the county au-tborities, the true question is, what shall be the construction of section 2 of the statute of 1831, to which they must have resorted to exempt the college edifice? The question arising on that section we have already discussed.
    But go upon the supposition that the board of equalization have refused to exempt any, even the college building, and the question is, does the latter clause of section 5 of the statute of 1834, above referred to, meddle with the plain force of the first part of that .section and the statute of 1831 ? Are they repealed by it, or are they consistent with it, and it with them? The first part of seC-tion 5, in the law of 1834, exempts all exempted by section 2 of -the law of 1831; and the latter clause of section 5 requires all improvements, buildings, etc., not above exempted, to be appraised;namely, all buildings, and other improvements, on school and -college lands, not used for literary purposes.
    This construction clearly gives force to every part of these .statutes, and makes them consistent.
    We know it is a rule of law, that subsequent statutes shall control the provisions of former ones repugnant to them ; but to this .rule there are exceptions, depending on the intention of the legislature. In this case, however, we contend that the latter statute -is not repugnant to the former. But grant that it were so, what would appear to be the intention of the legislature? Certainly'not to repeal the act of 1831, else why refer to it in the first part of .said section 5? On this point, see Pease v. Whitney, 5 Mass. 380; Capin v. Glover and others, 4 Mass. 305.
    When a statute is made, in addition to another statute, on the same subject, without repealing any part of it, the provisions of *each must be construed together, reddenda singula singulis. Pease v. Alwood, 13 Mass. 324. The law of 1834, then, if connected with that of 1831 at all, must be considered an addition to it, for it is an additional regulation of the mode of levying taxes. Hender, then, these two statutes together, if possible, so as to let both stand, and give to the terms of each a subject to operate upon. The court will, no doubt, give them such construction, and exempt all manner of property from taxation, under the statute» of 1834 that would have been under that of 1831.
    Curtis, for defendant:
    Whether the locus in quo be properly listed and taxed in the-name of plaintiff, is a question entirely waived; and that intended, to be presented (as agreed by counsel) is, whether the property be at all taxable.
    The statute of March, 1831, vol. xxix, 262, 263, sec. 2, exempts» from tax all the lots of ground, or land, set apart for school houses, academies, and colleges, with the buildings thereon, occupied for those purposes; and all lands the property of, or granted for the use of, such academy or seminary of learning; but adds a proviso, that the buildings, or any of them, not occupied for literary purposes, may be taxed.
    Section 5 of the act of 1834 (32 Ohio Stat. 12) requires the appraiser to list and appraise the excess over $200 on all houses, except the property exempt by section 2 of the former law; “also all buildings and other improvements, erected on, or affixed to,, school or college lands.”
    1. Docs the act of 1831 exempt from taxation a dwelling house built on college lands, and occupied by a professor?
    It is conténded by plaintiff’s counsel, that the word ‘■‘literary’’'' is of such general import, with reference to college institutions, that it embraces the residences of all persons necessarily employed in and about the seminary; and especially those of the professors. This argument seems to be predicated upon the false hypothesis, that whatever is connected with a literary institution ; or attached to it for comfort, convenience or support, becomes literary itself; and is entitled to all the benefits and exemptions, secured to the institution in its proper sense.' A professor or tutor is certainly a principal, and very necessary officer in a college; but his residence - or dwelling house, although very important for the *comfort of his family, is of no more consequence to the institution than would be the dwelling house of a judge, to the administration of justice in our courts of law. The professor is free to choose the kind of house he will inhabit, whether a cabin or the more splendid mansion; and the exercise of that choice does not, in any wise, affect the prosperity of the college.
    
      The same argument that would protect from taxation the professor's house, under the saving clause of the act of 1831, would .also embrace a great variety of other buildings; for it is to be remarked that the professor’s house is not claimed to be within the exemption because the tenant may be more of a literary man than ihe laborer who supplies the college with fuel or the baker who provide^ the students with bread, but because it is a necessary appendage to the college. Is itnot equally necessary that there should be a boarding-house attached to the college; and because the students board there is that necessarily “occupied for literary purposes?” Is it not equally necessary that the students and other members of the institution should be clothed ; and does it therefore follow that the clothing store or tailor’s shop on the college ground, though exclusively supported by the college, is occupied for literary purposes ? The college may institute and support a ■.hotel for the reception of visitors and guests ; it may establish a bakery, employ many families in washing for the students, furnishing fuel, etc., and, to make the expenditures for these comforts light to the student, provide houses for all free of rent. But will it gravely be contended that these various establishments are •.therefore for literary purposes ?
    The counsel for plaintiff would not probably claim the application of their argument to the extent above given; yet, to my mind, its conclusions embrace all the cases referred to. And its error consists in failing to distinguish between those 'buildings which are occupied as part of the institution itself and those which .are attached thereto for its comfort and convenience. Thus the counsel, in the concluding part of their argument, embrace in one class, as exemptfrom taxation, all houses built on the college lands» and occupied by students for lodging, recitation, or study; by professors, tutors, librarians; for libraries or literary societies. Now here are a variety of purposes of habitation, many of which are utterly dissimilar. For instance, the recitation and study rooms £of which there are several buildings distinct and separate from the main college buildings, yet belong to the same and occupied for those purposes) and the houses built for ^libraries and literary societies, none of which are claimed to be taxable, may readily be ■distinguished from the lodging or boarding-houses of the students .and the dwelling-houses of the president, professors, tutors, or librarians. The former constitute a component part of the institution itself, while the latter are attached for the convenience of individual persons connected with the institution. That some of these houses may be assigned to their occupants free of rent does-not in any degree weaken the distinction here made. Whether any, and what rent should be charged by the superintendent, under the direction of the trustees, is a sheer question of expediency, to be determined by the discretion of the proper officers; and the exercise of that discretion, either favorably for the tenant or more rigorously against him, can not change the character of the occupation.
    I do not admit that the practice under the statute of 1831 has-been to exempt from taxation professors’ bouses and the other buildings attached to colleges above considered. That in some counties such a construction may have obtained is probable; but that fact can have no sensible bearing upon the question submitted to the court. The true construction of the statute is now sought for by both parties; and former errors, if any have prevailed in practice, should not influence the decision.
    But there is another view that will greatly aid in finding the-true interpretation of this law. The first part of section 2, in the statute of 1831, designates by name, in a manner that can not be misunderstood, the property which shall be exempted from tax: “All lots of ground or land set apart for school houses, academies, or colleges, with the buildings thereon occupied for those purposes.”' What purposes? I answer, from the obvious meaning of the text, for the purpose of such school, academy, or college. This, so far as-involved in the present suit, is the exemption — the whole of the exemption. And the subsequent proviso is surplusage, and unnecessary for the purpose of reserving the taxing p*ower over other-items of property. If, then, the section' or clause creating the exemption ended here, without the addition of the proviso, could it-be construed that the legislature intended to include such buildings as in no wise constitute the school-house, academy, or college, proper or improper, nor any part thereof? If not, let us see if any enlargement of the exemption can be obtained from the subsequent saving clause.
    
      A proviso never substantially grants a power or right; but it is a clause introduced as a condition and caution, to guard against *the too extended operation of. a preceding enactment. It is intended-to limit and restrict the section of the law in which it, is placed, not to enlarge its operation. Why, then, is this proviso looked to as the passage in the law that exempts the property named in plaintiff’s replication? Is it claimed that the benfits granted by this section are increased', enlarged, extended by it? If so, the learned counsel do violence to the general and technical meaning of the word, and its legal use and application. I com’ mend them to Walker and Webster.
    The legislature, cautious beyond necessity, and fearing that the exemption of the lands belonging to schools, academies, and colleges from taxation, might be construed to include all houses built upon such lands, interposed the proviso to guard against such & construction. The word “ literary," as used in the sentence, must therefore be taken as meaning nothing more than was expressed in words before used. They had exempted school-houses, academies, and colleges; they had exempted the lands owned by those institutions; but they excepted from these exemptions buildings not occupied for literary purposes, obviously implying the buildings which they had already designated. This construction of the section renders the whole sensible, preserves the general use and meaning of the proviso, and gives to each member of the sentence definite meaning and purpose.
    2. The interpretation which I have given to the act of 1831 aids me in arriving at the true meaning of the legislature in the law of 1834. Whether, by the clause quoted from the last-named act, it was intended to remove any doubts that may have previously existed, or induce uniformity of construction and practice in the different counties, may be a question worthy of consideration; but is rendered unnecessary to discuss in this case, from the view already taken of the former act. I do not believe that the legislature intended, by the act of 1834, to repeal or change the law as it was enacted, by section 2 of the act of 1831. Nor is it necessary for the defendant in this case to assume that ground, as is erroneously supposed by the plaintiff’s counsel, in their argument. On the contrary, it strikes my mind, as clearly expressed on the face of the statute, to be the intent to preserve, in full vigor, the same exemption contained in section 2 of the act of 1831, and nothing more nor less.
    Statutes in pari materia must be construed with reference to each other; and by the application of this rule, we may frequently arrive at the intent of the legislator, when, without it, we would *be left in a labyrinth of doubt. True, the literal meaning of the following words: “Also all buildings and other improvements erected on, or affixed to school and college lands,” would require a construction that would utterly defeat so much of sec* tion 2, of the previous act, as,relates to buildings. But such a construction would be repugnant to the preceding part of the same section in which this clause is found, and which re-enacts the exemption contained in the former statute. Hence it becomes necessary to compare these enactments with those that before existed on the same subject, and which the legislator is supposed to have had in his view when he made the new law.
    By applying this principle to the sections of-the law under consideration, it can not fail to be perceived that these general words contained in the act of 1834 are subject to the exemptions designated in section 2 of the act of 1831, to wit: “ School-houses, academies, or colleges, and the buildings occupied for those purposes The ends contemplated are to bo considered, and general words may be thereby restrained. 3 Maulé & Solwyn, 510.
    
      Ut res magis valea-t, quam pereat, is the maxim of the common law, and is sustained and preserved by the construction I have given to the two statutes. A different one would do violence to this principle.’ “ This interpretation furnishes matter for each statute and every clause to work and operate upon.” A different one renders parts of the statute insensible, and involves repugnancy and confusion.
   Judge Grimke

delivered the opinion of the court:

Section 6 of the act of 1834 requires the appraiser to list and appraise the excess, over and above $200, on all houses, except the property exempted from taxation by section 2 of the act of 1831. He is also directed to appraise all buildings, and other improvements, in like manner erected upon, or affixed to any town lots, laid out on such school and college lands. The act of 1831, which is thus referred to, exempts from taxation all lots of ground set apart for school-houses, academies, and colleges, with the buildings thereon occupied for those purposes, and all lands the property of, or granted for the use of such academy, or seminary of learning; but it, at the same time, declares that the buildings, or any of them, not occupied for literary purposes, may be taxed. I do not know that there is any material difference between these laws. Both agree in exempting ^certain buildings from "taxation, and both agree in rendering certain other buildings liable to taxation. The act of 1831 describes both; the act of 1834 refers for a description of one class of these buildings to the .act of 1831. It was evidently the intention of the legislature to confer an advantage upon these institutions, which are of such •unspeakable benefit to the state, and by declaring even a monopoly in this respect to countenance and sustain the monopoly of learning generally. In so doing, we have imitated the examples of ■other states, in which controversies like the present have sometimes sprung up.

Two or three cases, I believe, have grown out of the'laws exempting certain property of Harvard University from taxation. All that we have to do, is, to give a plain construction to the statute, for if, on the one band, it should be said, that a law in aid of the interests of learning should be favorably expounded, on the other, it may be replied, that wherever a special exemption, from certain duties, is contained in a statute, that the rule of liberal ^construction is not the guide.

It appears that the house on which the tax was assessed, is used •as a dwelling-house by one of the professors in Kenyon college; ■a connection with that institution is thus shown, inasmuch as he is one of the faculty ; but this is not sufficient. It is not enough that the person residing in the house is one of the teachers; it must be shown that the building is occupied for literary purposes. I acknowledge that the distinction is not very broad; and there ¿ire some distinctions so nice, that no mind would make them unless it was compelled. But this is not one of such a character. A house merely occupied as a dwelling-house, and not as a place where any of the exercises and recitations of the college are had — • a house whose size and value may solely depend on the extent of a professor’s family, not one of whom have any connection with the college, can not be said to be a building “ occupied for literary purposes,” within the meaning of the law. It is true, such houses might be used for such purposes; but then, to the same extent that they would be withdrawn from taxation, certain other buildings, which are now exempt, would be unnecessary, and would not exist. The conclusion is, that this property was by law liable to be taxed, and the demurrer is sustained. Judge Lane, being a trustee of the theological seminary, Kenyon College, did not sit in this ease.  