City of Chicago v. University of Chicago

131 Ill. App. 361, 1907 Ill. App. LEXIS 52

Opinion

Mr. Justice Adams

delivered the opinion of the court.

We shall consider only the contentions appearing in the argument of appellant’s counsel, as objections not argued must be deemed waived. The first proposition of counsel is, that “it is not within the power of the city, by ordinance or otherwise, to give away its property.” Three decisions of the Supreme Court are cited in support of the proposition, each of which relates to property owned by a municipality in its public capacity, exercising governmental powers within the municipal bounds, as the agent of the state. There is a well-settled distinction between the power of a municipal corporation, in respect to such property, and its power in respect to property which it owns in a quasi private capacity. 1 Dillon on Mun. Corp., 4th ed., section 27. In Board of Park Commissioners v. Common Council of Detroit, 28 Mich. 228, the court, Cooley, J., delivering the opinion, say: “We also referred in People v. Hurlbut to several decisions in the Federal Supreme Court, and elsewhere, to show that municipal corporations, considered as communities endowed with peculiar functions for the benefit of their own citizens, had always been recognized as possessing powers and capacities and as be-' ing entitled to exemptions distinct from those which they possess, or can claim, as conveniences in state government. If the authorities are examined, it will be found that these powers and capacities, and the interests which are acquired under them, are usually spoken of as private, in contradistinction to those in which the state is concerned, and which are called public, thus putting these corporations, as regards all such powers, capacities and interests, substantially on the footing of private corporations,” citing numerous cases. Ib. 237-8.

In Wagner v. City of Rock Island, 146 Ill. 139, 154, the court quotes with approval this language: “A municipal corporation which supplies its inhabitants with gas or water does so in its capacity of a private corporation, and not in the exercise of its powers of local sovereignty. If this power is granted to a borough or city, it is a special private franchise, made as well for the private emolument and advantage of the city as for the public good. In separating the two powers—public and private—regard must be had to the object of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political or municipal character; but if the grant. was for purposes of private advantages and emolument, though the public may derive a common benefit therefrom, the corporation quoad hoc is to be regarded as a private company. It stands upon the same footing as would any individual or body of persons upon whom the like special franchises had been conferred.”

Such being the law, the city was not without power to grant the exemption.

Counsel for appellants urge that the court’s construction of the ordinance, in holding on the facts found, that the dormitories and commons are exempt, within the meaning of the sections of the ordinances quoted supra, is erroneous. As we understand the argument of counsel, this contention is based on two reasons: First, that the dormitories and “commons” are not within the words of the ordinances, that they are not used in the immediate conduct and carrying on of. the * * * educational purposes of- such institution; and, second, that the dormitories and commons are “used for gain or profit.”

Counsel in their argument say: “To us it is clear as anything can be, that the dormitories and restaurant .(commons) mentioned in the bill and decree, are not used in the immediate conduct and carrying on of this school. The immediate conduct of an educational institution is nothing more than imparting that knowledge to students. The buildings that are used in the immediate conduct of an educational institution are those that are used as class rooms or study rooms, libraries or laboratories.” Manifestly, this is too narrow a view. The language of the ordinance is not merely the conducting and carrying on of a school. The language is, “as is used in the immediate conduct and carrying on of * * * the educational purposes of such institution.” In respect to the dormitories and commons, the court found as follows:

“That for the use and occupation of the rooms respectively occupied by them in the buildings herein described as Hitchcock ‘Hall, Snell Hall, Beecher Hall, Green Hall, Kelley Hall, Foster Hall and Foster Hall Annex, and each of them, the occupants thereof pay to said University certain sums of money in addition to their regular fees for tuition, which said sums of money are, as hereinbefore stated, used by the University in defraying a part of its running expenses. These last named buildings are provided by the University for students who have no homes in Chicago, but who come from outside of Chicago to attend the University, and it is almost exclusively such students who occupy them. The students who occupy rooms in said buildings use their respective rooms as living and also as study rooms during the daytime and evenings, the University not providing study halls in which the students can prosecute their studies between classes. The University maintains control of and supervision over the student life in each one of these last named buildings, by appointing some member of the faculty or some person associated with the faculty, to live in said buildings and to oversee the student life therein, there being one of said persons living in each one of said buildings as its head. For all meals served in the building described herein as the commons, the partakers thereof pay to said University of Chicago certain sums in addition to their fees for tuition, but, as stated above, such sums never' exceed the cost of the meals served.”

There is no certificate of evidence in the record, therefore the facts found must be held to have been found by the chancellor on sufficient evidence. Brown v. Miner, 128 Ill. 148, 156; King v. King, 215 Ib. 100, 115.

Phillips Academy v. Andover, 175 Mass. 118, was an action by the academy to recover taxes paid under protest, on the ground that the property taxed was exempt from taxation. The statute under which the exemption was claimed provided: “The personal property of literary, benevolent, charitable and scientifie institutions, incorporated within this commonwealth, and the real estate belonging to such institutions, occupied by them or their officers for the purpose for which they were incorporated, shall be exempt from taxation.” The court held that the academy was an institution within the meaning of the statute; and, in considering the words “occupied by them or their officers for the purpose for which they were incorporated,” say: “It is not enough, for instance, that an income is derived from the occupancy which is applied to carrying on the institution. Chapel of the Good Shepherd v. Boston, 120 Mass. 212, At the same time the occupancy may be of the kind contemplated by the statute, notwithstanding that as incident to it rent is received, or the pecuniary value to the officer occupying is taken into account in some other manner. Massachusetts General Hospital v. Somerville, 101 Mass. 319. The distinction lies, it seems to us, between an occupancy which is for the private benefit and convenience of the officer, and which is so regarded by the parties, as in the ordinary case of landlord and tenant, and an occupancy where, although necessarily to some extent the relation of landlord and tenant enters into it, the dominant or principal matter of consideration is the effect of the occupancy in promoting the objects of the institution in the various ways in which such occupancy may or will tend to promote them. In the former case the property would not be exempt, in the latter it would; and the fact that the institution incidentally derived some pecuniary advantages from the occupancy, would not deprive the property of the exemption to which it otherewise would be entitled.

“In considering whether property is occupied so as to be exempt, regard may be had, amongst other things, to the situation of the institution. If, for instance, it is so situated that desirable residences are not or may not be easily obtained, and those in charge of it are of opinion that such officers as the best interests of the institution and of those resorting to it require, can be more easily obtained if the institution provides places for them to live in, and it does so, this may be taken into account in determining whether the occupancy is for the purposes for which the institution was incorporated. Or again, if with the best interests of the institution as an educational institution in view, and for the purpose of enhancing its advantages to students, and of promoting discipline and good conduct and greater freedom of intercourse between students and professors and instructors, those in charge deem it advisable that the president and professors and others connected with the institution should occupy residences in the college yard, or in proximity to the college buildings, this also may be taken into account. The dominant purpose of the occupancy under such or similar circumstances may be as truly for that for which the institution was incorporated, as the occupancy of buildings for recitation purposes, or for offices, or for other like purposes would be. And the occupancy does not lose what may be termed its institutional character and purpose because, as incidental to it, the officers and their families are provided with homes, for the use and enjoyment of which by them compensation is allowed, or taken into account in some manner. In many, if not most, New England colleges and academies the presence of the families of the professors and other officers has been and is regarded as beneficial to the students, and as advantageous to the institution. The occupation, therefore, by them as homes of the property belonging to such institutions, would not necessarily be inconsistent with the spirit and intent of the exempting clause.

“In considering the purpose of the occupancy, due weight is also to be given to the intentions of those in charge of the institution. The institution can only act through agents. In Massachusetts General Hospital v. Somerville, 101 Mass. 319, 322, it is said that ‘what lands are reasonably required, and what uses of land will promote the purposes for which the institution was incorporated, must be determined by its own officers. * * * In the absence of anything to show abuse, or otherwise to impeach their determination, it is sufficient that the lands are intended for and in fact appropriated to those purposes;’ and again, later, ‘the presumption is in favor of their judgment, and it requires something more than mere difference of opinion, upon a matter of opinion especially confided to them, to overcome that presumption.’ Their conclusions are not final. But if consistent with other facts tending to show that the purpose of the occupancy is that for which the institution was incorporated, they well may be allowed to have a controlling effect.”

In Yale University v. New Haven, 71 Conn. 316, the statute relied on for exemption, being section 3820 of General Statutes, provided that “buildings or portions of buildings exclusively occupied as colleges,” etc., should be exempt from taxation. The court, in its elaborate opinion, showing, historically and by reference to the customs of other colleges, what the word “college” includes, say: “All the dormitories occupied by students, the building used as a dining hall, the observatory buildings, the two houses furnished by the college for the officers of the observatory, the adjoining land found to be reasonably necessary for the purposes of the observatory, and No. 121 Elm street, used as a college yard in connection with the college buildings, are non-taxable property under section 3820.” Id. 334. The court, in the same case say, in respect to the dormitories: “The fact that certain sums are paid for use of the rooms occupied, does not alter the character of the occupation. A church is none the less a church because the worshipers contribute to the support of services by way of pew rent,.’ ’ etc. Ib. 328. To the same effect are the following cases: Northampton Co. v. Lafayette College, 128 Penn. St. 132; Ramsey Co. v. Macalster College, 51 Minn. 437; Trustees, etc., v. State, 46 Ia. 275; Rural Cemetery v. Worchester County, 152 Mass. 408; State v. Ross, 24 N. J. L. 497; Academy of the Sacred Heart v. Irvey, 51 Neb. 755; Monticello Seminary v. The People, 106 Ill. 398.

The court found that the appellee, in addition to the regular tuition fees, charges the students who occupy the dormitories certain sums of money; and also charges the students who partake of meals served in the commons certain sums, in addition to the regular tuition fees; and counsel for appellants contend that these charges are gain or profit, within the meaning of section 2402 quoted in the statement preceding this opinion. It was evidently intended that section 2402 should have some effect as to educational institutions, and it must be so construed. But, if the contention of appellants is sound, the section can have no effect as to private educational institutions, because all such charge tuition fees, and appellants’ contention is as applicable to tuition fees as to the charges in question. Therefore, appellants’ contention cannot be sustained.

In Santa Clara Female Academy v. Sullivan, 116 Ill. 375, the academy was a corporation organized solely for educational purposes. It was objected that it was a corporation for pecuniary profit, in respect to which the court, after briefly stating the provisions of the academy’s charter, say: “This is all—not a word as to stock, stockholders, dividends, or suggestive of pecuniary profit to anybody. .It is said that fees are charged for tuition. We suppose this to be the case with all educational institutions, with hardly an exception, if any. ' What is meant by ‘pecuniary profit,’ is ‘for the pecuniary profit of its stockholders or members, ’ in the words of section 26 (Rev. Stat. 1874, p. 290), before quoted. Such is not the purpose of this charter, but it is for educational purposes, and all the avails received are applied to the latter purposes. See McDonald v. M. G. Hospital, 120 Mass. 432, on this point. The proof is, ‘there is no pecuniary profit to the members of the corporation from this institution. There are no dividends declared, no money given to any member. The trustees themselves derive no personal profit. The corporation is not conducted for any other purpose than educational and charitable purposes/ The record shows that the value of appellant’s property but slightly exceeds the incumbrances and debts. That educational corporations are not corporations for pecuniary profit, is recognized by the law of this state in section 4, chapter 144, of the Bevised Statutes of 1874, page 1090, which provides that any educational corporation theretofore incorporated under any special law of the state may ‘become incorporated under the provisions of f An Act concerning corporations,’ approved April 18, 1872, relative to corporations not for pecuniary profit. ’ ’ ’

Section 4 of chapter 144, referred to by the court, is still in force. Hurd’s Rev. Stat. 1905, p. 2032.

Our conclusions are that all the buildings mentioned in the decree are used in the immediate conduct and carrying on of the educational purposes of appellee, and materially subserve and promote said purposes, and that they are all exempt from water taxes and rates within the meaning of appellant’s said ordinances, notwithstanding certain charges are made by appellee, in addition to the ordinary tuition fees, against students who occupy the dormitories, and against students who partake of meals at commons.

The decree will be affirmed.

Affirmed.