
    The City of Cincinnati v. Lewis, Auditor.
    
      Lands owned ~by municipality — Not exempt from taxation — Unless used, in municipal function — Same ivhen lands leased — Municipal law.
    
    The ownership of lands by a municipal corporation does not bring them within any statutory exemption from taxation unless they are used in the exercise of a municipal function, and-this is true although they are leased, by the municipality and the money realized is applied to a public purpose.
    (Decided February 25, 1902.)
    Error to the Circuit Court-of Hamilton county.
    The city of Cincinnati brought suit in the court of common pleas to enjoin the collection of taxes on certain real estate owned by it and described in its petition. The- cause having been determined in the court of common pleas, was appealed to the circuit court where it was submitted on the following agreed statement of facts:
    1. That part of the property which is described in the petition, which is now upon the tax duplicate of the county of Hamilton, and on the forfeited list, was appraised for taxation and duly listed therefor by the decennial appraiser of 1890, and the value as returned by him was equalized by the county and state board of equalization, and placed upon the tax duplicate of Hamilton county. That taxes have been charged thereon since 1890, which have not been paid by the plaintiff, and said property became delinquent and subsequently became forfeited to the state of Ohio, in accordance with the statutes.
    2. That the property described in the petition was purchased by the city of Cincinnati from Jacob Markley in the year 1872, for the purpose of erecting thereon water-works for the city of Cincinnati; but said water-works was never erected thereon and no buildings were erected thereon by the city. That said property is in Anderson township, Hamilton county, Ohio, and is not within the corporation limits of said city.
    3. The property described in the petition before conveyance to the city of Cincinnati was used as a farm. That since on or about the year 1888, to and including the time of the filing of the petition in this case, on January 29, 1897, the said property was in the possession of Jacob Yogel, who rented the same from year to year, and who paid to the city of Cincinnati annually, as rental for said property, as follows:
    For the year 1890, $150; for the year 1891, $145; for the year 1892, $120; for the year 1893, $120; for the year 1894, $120; for the year 1895, $120; and for the year 1896, $60; that said sums were paid to the water department of the city of Cincinnati, and into the water fund of the city, and used in the maintenance of the water department of the said city. That said property was subrented by Yogel to other persons, and was used by him and them for farming purposes, and the city of Cincinnati did not use the same for any purpose other than to derive therefrom the revenues above set out.
    Upon the facts so agreed to by counsel the circuit court held the property to be taxable and dismissed the petition of the city.
    
      Mr. Charles J. Hunt; Mr. Wade H. Ellis and Mr. John V. Campbell, for plaintiff in error.
    The exact question raised in the case at bar was answered by this court in the case of Zumstein v. Coal and Mining Co., 54 Ohio St., 264.
    The general proposition that the property of a municipality is not subject to taxation unless the purpose to tax is clearly shown by the act of the legislature, is well settled, and is tersely stated by Dillon in his work on Municipal Corporations (4 ed.), Sec. 773. Mayrhofer v. Board of Ed., 89 Cal., 114; Low v. Lewis, 46 Cal., 549; People v. Saloman, 51 Ill., 37; Directors of the Poor v. School Directors, 42 Pa. St., 21; Nashville v. Smith, 86 Tenn., 213; Cooley on Taxation, 130; Klein v. New Orleans, 99 U. S., 149; United States v. Railroad Co., 84 U. S. (17 Wall.), 322; Wharf Co. v. Galveston, 63 Tex., 14; People v. Board of Assessors, 111 N. Y., 505; West Hartford v. Commissioners, 44 Conn., 360; Negley v. Henderson (City), 55 S. W. Rep., 554; Covington v. Commonwealth, 39 S. W. Rep., 836; Covington v. Commonwealth, 173 U. S., 231.
    
      The rule in these Kentucky decisions has been criticised by Dillon in his work on Municipal Corporations, Sec. 774 and note.
    
      Mr. Gideon G. Wilson, county solicitor; Mr. Otway J. Gosgrave and Mr. Oliver B. Jones, assistant county solicitors, for defendants in error.
    It is contended that under this eighth paragraph of Sec. 2732, Rev. Stat., the property described in the petition is exempt from taxation. We contend that said property, never having been and not now being “used exclusively for public purposes,” cannot be exempted from its proper burden of taxation.
    It has been held that the constitution is imperative in requiring all property not exempt to be taxed, and that its provisions preclude any other exemption than those indicated. Zanesville v. Richards, 5 Ohio St., 589.
    All property must bear an equal and just proportion of the burden of taxation. Debolt v. Insurance and Trust Co., 1 Ohio St., 563; Bank v. Bond, 1 Ohio St., 622; Telegraph Co. v. Mayer, 28 Ohio St., 521.
    All laws exempting any of the property in the state from taxation, being in derogation of equal rights, should be construed strictly. Cincinnati College v. State, 19 Ohio, 110; Lee v. Sturges, 46 Ohio St., 153 ; Library Association v. Pelton, 36 Ohio St., 253.
    The fact that the income derived from rents or parts of a building not used is devoted exclusively to the objects and purposes of the association, and not used for the benefit or profit of its members, can make no difference.
    The law looks to the property as it finds it in use, not to what is done with its accumulations. Humphries v. Little Sisters of the Poor, 29 Ohio St., 201.
    
      A municipal corporation may hold property in either one of two capacities, if for the purpose of municipal government, or as necessary and useful for that purpose, it is not taxable; if it is used by the city or enjoyed by it in a social or commercial capacity as a private corporation and for its own profit, it is taxable. Cooley on Taxation, 173; Dillon on Municipal Corporations, 571.
    As we have seen, both the constitution and the statutes of Ohio provide that the matter of exemption is determined by the use to which the property sought to be exempted is put. All public property is not exempted from taxation, but only such public property as is used exclusively for any public purpose.
    
    This court has so held in a number of cases. Kendrick v. Farquhar, 8 Ohio, 189; Gerke v. Purcell, 25 Ohio St., 229; West Hartford v. Water Commrs., 44 Conn., 360; People v. Hess, 157 N. Y., 42.
    The Supreme Court has construed the limits of such exemption. The case of People v. Chicago, 124 Ill., 636, is very similar in its facts to the case at bar. Sanitary District of Chicago v. Martin, 173 Ill., 243; Mitchellville v. Supervisors, 64 Iowa, 554; Trustees v. Bohler, 80 Ga., 159; Brodie v. Fitzgerald, 57 Ark., 445; School District v. Howe, 62 Ark., 481; School District v. Board of Improvements, 65 Ark., 343.
    The decisions in Kansas are also strong upon the question under consideration. Washburn College v. Commissioners, 8 Kan., 344; Sec. 1, Art. 11, of the constitution of the state of Kansas; Stahl v. Educational Assn., 54 Kan., 542; St. Mary’s College v. Crowl, Treas., 10 Kan., 442; United Brethren v. Commissioners, 115 N. C., 489; First M. E. Church v. Chicago, 26 Ill., 482.
    
      The law in Louisiana is to the same effect. New Orleans v. Judah Congregation, 15 La. An., 389; State v. Board of Assessors, 35 La. An., 668; Mulroy v. Churchman, 60 Iowa, 717; Indianapolis v. Grand Master, 25 Ind., 518; Louisville (City) v. Commonwealth, 1 Duvall (62 Ky.), 295; Negley v. Henderson (City), 55 S. W. Rep., 554; Covington v. Commonwealth, 39 S. W. Rep., 836.
    . We believe that a careful examination of all of the decisions upon these exemptions throughout the different states will sustain our position that it is the immediate use to which the property is put that determines whether or not it is exempt from taxation, and any exemption allowed is only when the property itself is used for governmental purposes or for the purpose of education, charities or eleemosynary institutions, that it is exempt from taxation, and if property is owned by a city and used for other than governmental, such as this property, which is used for farming purposes, or if property owned by a church or other charitable organizations is used for the purpose, of producing revenue, which may be ultimately devoted to the purposes of the organizations, that property is not exempt from taxation.
    To this effect we cite the following cases:
    
      New Orleans v. St. Patrick’s Hall Association, 28 La. An., 512; State v. Board of Assessors, 34 La. An., 574; Redemptionists v. Commissioners, 50 Md., 449; Appeal Tax Court v. St. Peter’s Academy, 50 Md., 321; St. James Institute v. Salem, 153 Mass., 185; Salem Lyceum v. Salem, 154 Mass., 15; Williams College v. Williamstown, 167 Mass., 505; First Christian Church v. Beatrice (City), 39 Neb., 432; People ex rel. Y. M. C. A. v. Sayler, 32 N. Y. App. Dec., 197; People ex rel. Catholic Union v. Sayler, 32 N. Y. App. Dec., 203; Sunday School Union v. Philadelphia, 161 Pa. St., 307; Philadelphia v. Barber, 160 Pa. St., 123; Benevolent Society v. Kelly, 28 Oregon, 173, where the authorities are exhaustively collected; Mundy v. Van Hoose, 104 Ga., 292, citing Ohio cases; Academy v. Exeter, 58 N. H., 306; Yale University v. New Haven, 71 Conn., 316; Fitterer v. Crawford, 157 Mo., 51 (57 S. W. Rep., 532).
   Shauck, J.

From the numerous cases cited in the briefs of counsel it appears to be the general rule that property owned by a municipality and not used in the actual exercise of its municipal functions is subject to taxation. This is for the obvious reason that where the systems of taxation are similar to ours the tax collected is not for the benefit of a municipality alone, but also for that of the state and county. Nevertheless it must be admitted that the conclusions reached upon the subject have been much influenced, if not actually controlled, by the different policies defined by the constitutions and statutes of the several states, it being everywhere conceded that the municipal ownership of property offers no impediment to taxation if that is provided for by law. The policy of this state has its foundation in section 2 of article 12 of the constitution which describes the property which shall be taxed as well as that which may, by general laws, be exempted from taxation: “Laws shall be passed, taxing by uniform rule * * * all real estate and personal property; but * * * public property used exclusively for any public purpose, * * * may, by general laws, be exempted from taxation.” That the public ownership of property was not alone thought sufficient to exempt it from taxation is made obvious by the requirement that an exclusive use for a public purpose shall coincide with such ownership. In the performance of the duty thus imposed upon it, the general assembly has enacted sections 2731 and 2732 of the Revised Statute^, By the former section it is enacted that “all property, Avhether real or personal, in this state, and whether belonging to individuals or corporations, * * * shall be subject to taxation except only such as may be expressly exempted therefrom.” The exempted property is described in the several subdivisions of the latter section. The seventh subdivision provides for the exemption of “all fire engines and other implements used for the extinguishment of fires, together with the buildings used exclusively for their safe keeping.” The eighth subdivision, which is much relied upon as providing for the exemption of this property, is as follows: “All market houses, public squares or other public grounds, town or township houses or halls used exclusively for public purposes, or erected by taxation for public purposes, notwithstanding some parts thereof may be leased under and by virtue of section 2566 of the Revised Statutes of Ohio, and all works, machinery, pipe-lines and fixtures belonging to any town and used exclusively for conveying water to such town, or for heating or lighting the same, and any unpaid taxes assessed against any property comprised in this subdivision, with any penalty thereon, is hereby remitted.” The property Avhich may be leased under section 2566 is a public building or a part thereof, and that provision can have no application to the present case. The description of municipal property which is exempt from taxation indicates with unmistakable accuracy that the exemption is to extend to such property only as is actually employed in the exercise of municipal functions. If this conclusion were doubtful it would nevertheless be required by the established rule that all exemptions from taxation are to be strictly construed.

[This case was decided previous to the retirement from the bench of Judge Minshall. — Reporter.]

The question here presented was not decided nor considered in Zumstein v. Coal & Mining Co., 54 Ohio St., 264.

Judgment affirmed.

Minshall, C. J., Williams, Burket, Spear and Davis, JJ., concur.  