McCARTY, J.
Plaintiff brought this action under Comp. Laws Utah 1907, section 2684, to recover from defendant, the treasurer of Salt Lake County, the sum of $621.89, taxes paid by plaintiff under protest on property which it claims was and is exempt from taxation. The cause was submitted to the trial court for decision upon an agreed statement of facts. From the facts stipulated in the record the court found, so far as material here, as follows:
“(1) That the plaintiff was and is a corporation, organized and existing under and by virtue of the laws of the State of Utah, and during all the times herein mentioned was and is the owner of the following described real and personal property : N. 50 ft. of S. 175½ ft. of W. 112 ft. of lot 4, block 74, plat A, Salt Lake City, Salt Lake County, Utah, together with personal property therein, all of the total value of $16,280.
“(2) That the plaintiff is organized as a corporation for the purpose of furthering and carrying on the objects and [6]*6purposes fully set forth in the constitution and by-laws of the incorporated society of Benevolent and Protective Order of Elks, and the Grand Lodge thereof, to promote good fellowship among its members and for charitable purposes, and in addition thereto, inaugurate and conduct a social club for the benefit of the members of said corporation, with all the rights and privileges incident and necessary to the furtherance of said objects, including the right to buy, acquire, exchange, sell, hold, and in any manner dispose of, real property,- and to contract indebtedness of every nature whatsoever; that in accordance with its said purposes, plaintiff, during all of the year 1909, up> to the date of this stipulation, has maintained and is now conducting for the benefit of the members of said lodge, social club rooms, and maintains on the first floor of the building situated on the land described in the first paragraph of plaintiff’s complaint, a buffet where spirituous, vinous, and malt liquors, and cigars are sold to its members only, for profit, at about the same prices paid at the bars and saloons in Salt Lake City, and that said plaintiff on the second floor of said building sells for profit to its members only, luncheon and 'refreshments, and that upon the second floor of said building, said plaintiff also maintains a reading room, a room .where billiards áre played, and a room where cards are played; that said plaintiff also occasionally uses its lodge meeting room on the top floor of said building for dancing and other social purposes, from which use of its said lodge meeting room it derives no- revenue whatever; that out of the receipts derived from the sale of liquors, cigars, luncheon and refreshments to its members, the plaintiff pays the expenses of maintaining the said buffet and restaurant, including the expense of bartender, waiters, porters, and the expense of everything sold and served in the buffet and' restaurant, and all the net receipts thereof go to the plaintiff’s general fund for charitable purposes; that said plaintiff also manages and conducts, every calendar year, an excursion over the San Pedro-, Los Angeles, and Salt Lake Railway to Los Angeles, California, the commissions or pro[7]*7ceeds of which are also turned oyer to the general fund of the said plaintiff to be used as aboye stated. That plaintiff dispenses charity in the general relief of the distress of the human family, not only to its members and their families, but also to the public at large.
“(3) That in addition to said sources of revenue, it collects dues from its members to be used for its maintenance and charitable purposes.
“(4) That no part of said property is leased to, or used by any other persons, and is only used and occupied as here-inbefore set forth.
“(5) That no part of the revenues, funds, or property of the plaintiff, except as hereinbefore set forth, is held or used for private or corporate benefit, but that the whole thereof is used exclusively for the maintenance of the plaintiff corporation, and for its charitable work of the relief of distress of its members and their families, as well as those who are not members of the plaintiff corporation.
“(6) That the plaintiff, pursuant to the objects of its incorporation, has expended for charitable purposes in relieving distress during the last five years, including the year 1909, an average annual amount of $1757.79, and has never been assessed for taxation prior to the year 1909.
“(7) That the defendant was and is the duly elected, qualified, and acting county treasurer of Salt Lake County, State of Utah.”
The court further found that the taxes assessed and levied against plaintiff’s property for the year 1909 amounted to $621.89; that “plaintiff, for the purpose of protecting .its rights in the premises on the 12th day of November, 1909, paid to the said defendant under protest said tax, tow.it, the sum of $621.89, . . . and the same was on said day received by said defendant under protest by the plaintiff, and the same has ever since been and now is in .the possession of the said defendant as such county treasurer of Salt Lake County, State of Utah.” As conclusions of law the court found that the property described in the findings of fact “has not been used exclusively for char[8]*8itable purposes within the meaning of the provisions of article 13, section 3, of the Constitution of the State of Utah, .and under the provisions of Comp. Laws Utah 1907, section 2503;” that the taxes assessed against the property of the .plaintiff are legal and valid, and that “said property is not exempt from taxation under the Constitution or the laws of the State of Utah.” The court rendered judgment dismissing the action and for costs of suit. To reverse the judgment, plaintiff, presents this appeal.
Section 3 of article 13 of the Constitution of Utah, so far as material here, provides “that the property of the United' States, of the state, counties, cities, towns, school districts, municipal corporations and public libraries, lots, with the buildings thereon used exclusively for religious worship or charitable purposes . . . shall be exempt from taxation.” Section 2503 of the Compiled Laws of Utah 1907, is- substantially the same as the foregoing provision of the Constitution. The only question presented by this appeal is, Does the. property in question come within the provisions of the Constitution and statute exempting property exclusively used for charitable purposes from taxation ?
The general rule is that when private property is claimed to be exempt from taxation the law under which the exemption is claimed will be strictly construed. (Judge v. Spencer, 15 Utah, 242, 48 Pac. 1097; State v. Armstrong, 17 Utah, 171, 53 Pac. 981, 41 L. R. A. 407.) There is, however, an exception to this general rule, and statutes exempting property used for educational and 1 charitable purposes or for public worship', under the great weight of authority, should receive a broad and more liberal construction than those exempting property used with a view to gain or profit only. The reason for the rule is that the state, by exempting property used exclusively for one or more of the purposes mentioned from taxation, is presumed to receive benefits from the property equivalent at least to the public revenue that would otherwise be derived from it. And manifestly the purpose of the statute [9]*9in exempting property used exclusively for charitable purposes is to encourage the promotion of institutions and organizations having for their object the care and maintenance-of the indigent and destitute citizen, the helpless orphan and the poor who are sick and afflicted, and whose charity and ministrations in these respects correspondingly relieves the state of such burdens.
Subdivision 40, section 511, Comp. Laws Utah 1907, provides in part that it is the duty of the county commissioners “to provide for the care and maintenance of the indigent sick and otherwise dependent poor of the county.” Subdivision 7 of section 538 provides, so far as material here, that “the necessary expense incurred in the support . . . of the indigent sick and otherwise dependent poor” is a county charge. This court, in construing these provisions of the statute in the case of Ogden City v. Weber County, 26 Utah, 129, 72 Pac. 433, said: “The enactment was made in the interests pf humanity and mercy, and must receive a liberal construction so as to carry into effect the humane and benevolent policy adopted by the legislature.” Precisely the same question — the same principle — -that called for a liberal construction of the statute involved in that case demands a liberal construction of the exemption law involved in this case. Both provisions were passed “in the interests of humanity and mercy, and must receive a liberal construction so as to carry into effect the humane and benevolent” purpose for which they were enacted.
The Supreme Court of Tennessee, in construing a statute exempting from taxation “all property belonging to any religious, charitable, scientific, literary, or educational institution and actually used for the purpose for which said institution was created,” said:
“The intention of the legislature must govern in ascertaining the extent of tax exemptions; and when the exemption is to religious, scientific, literary, and educational institutions the same strict construction will not he indulged in that would he applied to corporations created and operated for private gain or profit.” State v. Fisk University, 87 Tenn., 233, 10 S. W. 284.
[10]*10Tbis doctrine was reaffirmed by the same court in Book Agents, etc. v. Hinton, 92 Tenn. 188, 21 S. W. 321, 19 L. R. A. 289. In. the case last cited the Tennessee court tersely, and, as we think,- correctly, states the reason for the rule as follows:
“The fundamental ground upon which all such exemptions are based is a benefit conferred on the public by such institutions and a consequent relief to' some extent, of the burden upon the state to care for and advance the interests of its citizens.”
The principle upon which such exemptions are allowed is well illustrated in the case of Commonwealth, etc. v. Thomas, 119 Ky. 208, 83 S. W. 572, 26 Ky. Law Rep. 1128, 6 L. R. A. (N. S.), 320, in the following language:
“Without undertaking to be technically accurate a ‘purely public charity’ may be determined as one which discharges in whole or in part a duty which the commonwealth owes to its indigent and helpless citizens. Undoubtedly it is the duty of the state to educate its poor children, and thus fit them for discharging the duties of citizenship, to care for the indigent insane, its helpless orphans, and its poor who are sick and afflicted; and therefore any institution which serving no selfish interests discharges in whole or in part any such duty is a purely public charity.”
In the ease of Widows’ & Orphans’ Home v. Commonwealth, 126 Ky. 386, 103 S. W. 354, 31 Ky. Law Rep. 775, 16 L. R A. (N. S.) 829, the Kentucky Court of Appeals, in construing a somewhat similar constitutional and statutory provision, declined to follow the so-called “rule of strict construction,” and expressly overruled one of its former decisions (Widows’ & Orphans’ Home of Odd Fellows v. Bosworth, Sheriff, 112 Ky. 200, 65 S. W. 591, 23 Ky. Law Rep. 1505), in which the same question was involved. And even in the case overruled, the court, referring to the provision of the Constitution exempting “institutions of purely public charity” from taxation, said: “The Constitution is not to be strictly construed, but fairly, and with a view to effectuate its intent.” The case cited from 126 Ky., 103 S. W. 31 Ky. Law Rep., supra, is also published in 16 L. R A. (N. S.) 829, and we invite attention to an elaborate [11]*11and instructive note in the L. R. A. in which the compiler cites and discusses numerous decisions bearing on the questions here involved.
The case of Bishop v. Treasurer of Arapahoe County, 29 Colo. 143, 68 Pac. 272, arose under a statute exempting property “used solely and exclusively for schools,” and the court, in the course of a well-considered opinion, says:
“The general rule is that exemptions from taxation are strictly construed, hut this rule is not applied with full vigor to the character of exemptions under consideration. In other words, provisions exempting property used for educational purposes are less strictly construed than those exempting property used for ordinary gain or profit.”
St. Paul’s Church v. City of Concord, 75 N. H. 420, 75 Atl. 531, 27 L. R. A. (N. S.) 910, was a case in which the parish house of an Episcopal church was primarily devoted to public worship, but was frequently used for entertainments of a nonreligious character for which pay was sometimes required. It was contended in that case, as it is contended by respondent in this, that the statute exempting such property from taxation should be strictly construed, and the court, among other things, held that the strictest verbal meaning should not be given to the word “exclusive” in construing the statute. In the course of the opinion the court says:
“It is apparent, therefore, that some degree of liberality hounded by reasonableness must be indulged in in determining whether the use made of the parish house for religious purposes has been so far exclusive that it .is still a house of public worship, and exempt from taxation as such. A reasonable construction must be given to the statute. Scholastic strictness of definition cannot be adopted if it prevents that result. ... In other words, it is the duty of the court to ascertain and carry out the intention of the legislature; and that fact is to be found, not by the mechanical or formal application of the words and phrases, but by exercise of reason and judgment. ... If the socalled ‘rule of strict construction,’ applied to statutes exempting certain property from taxation, is so strictly applied as to render the exempting language so narrow and restricted as to defeat the apparent legislative purpose, it is clear that too much sacredness is attached to a mere rule, and that it should be either abrogated or applied with more liberality and reason.”
[12]*12The statutes of New York (chapter 371, Laws 1897) provide, among other things, that “the real property of a corporation or association organized exclusively for the moral or mental improvement of men or women, or for religious, Bible, tract, charitable, benevolent, . . . or cemetery purposes . . . and used exclusively for carrying out thereupon one or more of such purposes . . . shall be exempt from taxation.” It was held in the case of People v. Sayles, 23 Misc. Rep. 1, 50 N. Y. Supp. 8, that a building erected by a voluntary corporation with no capital stock, nor any provision for declaring dividends, and used for libraries, reading rooms, rooms for literary and scientific lectures, etc., and including an auditorium which was rented from time to time as a theater and public hall to persons not members of the association, the rent being apr plied solely to the maintenance of the building, was, in the meaning of the statute, “used exclusively” for the moral and mental improvement of its members and for educational purposes, and was therefore exempt from taxation. In the course of the opinion the court said:
“While it may, perhaps, he questioned whether the intermittent character of the letting of the theater is a leasing within the purview of the statute, it cannot justly be said that it is either leased or used for purposes other than the carrying out upon the property itself of the design for which the relator is organized; for, as has before been said, the net rental is all devoted to that end, and up to this time the relator’s operations have been confined to the building of which the theater is a part. The policy of the exemption is the moral and mental improvement of men or women, the formation and maintenance of religious, benevolent, educational, patriotic, scientific,, literary, historical, and burial associations, all of which are aids to and accompaniments of a refined and advanced civilization. This policy is not subverted, but, on the contrary, is promoted by permitting the relator to devote a portion of its premises to a profitable use, when they are not needed and cannot be used by its own members. ... If the exemption from taxation enables it to obtain a larger net income it is an advantage to which it is fairly entitled, and which is entirely consistent with the policy upon which the exemption is based. Not only is this the recognized rule here, but in other states, cultivating a broad and liberal policy towards the young, the indigent and the infirm” (citing many cases). The court .further said that it was “not unmindful that taxation is the rule, an exemption the [13]*13exception, and that an intent to exempt property from taxation is not to be presumed; but tbe true rule is that statutes such as this should be construed, not narrowly by the letter, but liberally and broadly, in view of their object and spirit? and the advantages to be derived from a generous construction will be more than an equivalent to the state and the city of Albany for the loss that may result from the relinquishment of the right of taxation over the property owned by such organizations as the relator, and devoted to kindred purposes. Nor will the state or city suffer by such a construction, as it may safely be assumed that assessors and the courts will scrutinize each case as it arises, and see that a salutary and .benignant law is not perverted to base ends.”
In the case of Phillips Academy v. Andover, 175 Mass. 118, 55 N. E. 841, 48 L. R. A. 550, tbe court, in construing a statute similar to tbe one under consideration, said:
“The statute is not to be construed narrowly, but in a fair and liberal sense, and so as to promote that spirit of learning, charity, and benevolence, which it has always been one of the fundamental objects of the people of this state to encourage.”
The Supreme Court of Connecticut, construing a statute (section 3820, Gen. Stat. 1887) of that state which provided, so far as relevant to this case, that “buildings exclusively occupied as colleges or public schoolhouses, or infirmaries; . . . buildings belonging to and used exclusively for scientific, literary, benevolent, or ecclesiastical societies” shall be exempt from taxation, said:
“The policy on which the exemption of church buildings from taxation is granted is the encouragement of religion; and that policy is not hindered, but rather promoted by permitting this building to be used for profit when not needed for those services distinctly called religious services; for literary, scientific, or entertaining exercises, or for any other thing not inappropriate to be had in a church. In earlier times in this state, and in all New England states, the church — commonly called the meeting house — was constantly used for town meetings, lectures, concerts, temperance meetings, political addresses, and for other like special occasions; and no one ever supposed that such use made the meeting house liable to taxation. In view of such general use, it is not to be supposed that the legislature intended, by any language it. has used, to make such church buildings taxable.”
[14]*14First Unitarian Soc. v. Hartford, 66 Conn. 368, 34 Atl. 89.
The same court in the case of Yale University v. New Haven, 71 Conn. 316, 42 Atl. 81, 43 L. R. A. 490, again gave the statute a liberal and practical construction, and held that “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 purpose of the observatory, and No. 121 Elm Street, used as a college yard in connection with the college buildings are nontaxable property under section 3820.” In this discussion of the case the court said:
“The defendant further claims that even if some dormitories may he occupied as a college, yet section 3820 must he construed strictly, because it is a statute exempting property from taxation, and that so construed the finding of the committee requires the court to hold that the dormitories assessed are not in fact buildings erected for the use of students, hut in substance constitute an investment in the business of furnishing apartments.”
The court, after reviewing the-revenue laws from an early period in the history of the state down to the present time, said:
“This clause of section 3820 is not strictly so much an exemption from taxation as the declaration of a public policy well settled and long established; it must therefore he construed reasonably so as to give full effect to the policy declared, as well as to avoid abuse and frustrate evasion.”
In conclusion the court said:
“This statute was intended to serve a great public use in pursuance of a most beneficial policy, and the construction to be given such statute requires that the intent shall not be defeated either by clear evasion or undue restriction.”
In the following cases a broad liberal construction rather than a narrow and restricted one has been given statutes somewhat similar to our own: St. Mary’s Church v. Tripp, 14 R. I. 307; Curtis v. Odd Fellows, 99 Me. 356, 59 Atl. 518; Massachusetts Gen'l Hospital v. Inhabitants of Somerville, 101 Mass. 319; People ex rel. Church of St. Mary v. [15]*15Feitner, 168 N. Y. 494, 61 N. E. 762; Academy of the Sacred Heart v. Irey, 51 Neb. 755, 71 N. W. 752; Cassiano v. Ursuline Academy, 64 Tex. 673; Donohugh’s Appeal, 86 Pa. 306; Warde v. Manchester, 56 N. H. 508, 22 Am. Rep. 504; Trustees of Wesleyan Academy v. Inhabitants of Wilbraham, 99 Mass. 599.
The admitted facts show, and the court found, that appellant is an organization, the purpose and object of which is “to promote good fellowship among its members and for charitable purposes, and in addition thereto 2 inaugurate and conduct a social club for the benefit of its members.” And we think it is apparent that the maintenance of a reading room, a room in which billiards are played, a room where cards-"are played, and a lodge meeting room which appellant occasionally uses for dancing and other social purposes, and rooms in which liquors, cigars and refreshments are sold at a profit to members only are the means by which the objects of the organization are attained and its purposes carried out, namely, the promotion of “good fellowship among its members” and the dispensing of “charity in the general relief of the distress of the human family, not only to its members and their families, but also to the public at large.” As stated by counsel for appellant in their brief, “to maintain the organization it is necessary to have officers and committees, and to hold meetings, even though all of these may not be immediately concerned in dispensing charity. It must have a permanent meeting place, and in the building used for this purpose it has rooms for accommodating its membership^, places where they may meet, not only to talk over lodge business concerned with the dispensation of charity, but for social purposes, to partake of refreshments, or to indulge in a game of cards or billiards. It is all a method of holding the members together, of solidifying the organization, to the end that charitable aims of the organization may be more effectively carried out.” That is, the maintenance and occupation of the building and the use made of it as a whole by the organization tends directly to promote and further [16]*16tbe purposes, and to carry out the objects for which the organization, was created. And the agreed statement of facts shows that the appellant, during the five years next preceding the year 1909, dispensed for charitable purposes annually the sum of $1757.79, and during the year 1909 the sum of $3757.79. The court found that the sum of $1757.79 only was distributed for charitable purposes during the year 1909. The amount distributed is not, however, of controlling importance in the case. The important question is, Was and is the property, in the meaning of the law, used exclusively for charitable purposes ? This question, we think, must be answered in the affirmative. The contention made by respondent that the selling of liquors and cigars, and the furnishing of refreshments to the members of the organization, under the circumstances and conditions as found by the court, deprives the property of the exemption, we think, under the great weight of authority, cannot be maintained. We think it conclusively appears that neither the occupation nor use of the building, or any part of it, was for the purpose of deriving profit or income, and that the benefit derived in the form of gain from the sale of liquors, cigars, and refreshments to the members is a mere incident to the use made of the building in promoting “good fellowship” among the members of the organization and in dispensing charity “in the general relief of the distress of the human family, not only to its members and their families, but also to the public at large.”
Suppose, as suggested by counsel for appellant, that the lodge, instead or requiring each member to pay for refreshments, liquors or cigars at the time they are served to him, should raise the amount of the dues each should pay to a sufficient sum to meet these expenses and produce an equal annual net balance for the charitable fund, or that the members should voluntarily contribute sufficient to provide a like result, could there be any doubt that plaintiff would be engaged in a charitable work? It matters not which method is adopted, because in either event the charitable fund would be raised exclusively by the members of the [17]*17lodge, and not from any profit derived from the building or any part thereof. The building in question is not open to the public, nor is the public permitted to come there for the purpose of obtaining refreshments, cigars, or liquors, by purchase or otherwise, hence the luncheons and refreshments served and the sales made of liquors and cigars to the members of the lodge or not, as is suggested, brought into competition with restaurants and places of business where liquors and cigars are sold, and which depend upon the patronage of the public for business.
The law is well settled that it is the use to which property, the res itself, is devoted, and not the use made of the profits derived therefrom, that determines whether it comes within the statute exempting from' taxation property occupied and used exclusively for charitable purposes. Upon this point there is not, nor can there be, any controversy. As we have stated, the important question presented by this appeal, is, Was and is the property in question occupied and used for such purpose ? In the discussion of the case the folio-wing suggestion is made: “Suppose there should come a year, or series of years, when there are not ‘net receipts’ or profits arising from” the sale of liquors, cigars, and refreshments, “and hence none to be distributed for charity” from that source, would it be contended that the property in which such sales were conducted, was used exclusively for charitable purposes? We are clearly of the opinion that under the agreed statement of facts herein referred to the property, according to the great weight of authority, would be exempt, even though no profits were realized from' the sales made of liquors, cigars, and refreshments From the facts stipulatéd, and as found by the court, it appears that plaintiff “collects dues from its members to be used for its maintenance and charitable purposes;” that it also manages and conducts every calendar year an excursion to Los Angeles, Cal., the commission or proceeds of which are turned into its charitable fund. For aught that appears in the record, the profits derived from the buffet and the serving of luncheon and refreshments may [18]*18constitute but au infinitesimal part of tibie charitable fund'. Furthermore, it is a matter of common knowledge that the charity dispensed by fraternal orders and societies and other like charitable institutions does not consist alone of the material assistance, represented by dollars and cents, they give to the orphan, indigent poor, the sick and afflicted who may be in need of help, by furnishing them with food, clothing, shelter, and medical aid, but that they also bestow other kinds of charity which in many cases are just as essential and just as potent in their effect for doing good' and in relieving distress as is the material assistance rendered by them. We refer to the charity which is the embodiment of sympathy and kindness; charity which causes
“hie to feel another’s woe,
To hide the fault I see,”
—and which comes of the spirit of brotherhood, good fellowship and benevolence generally found to exist in these fraternal orders and societies, and which actuates the members thereof to take an interest in the general welfare of each other, and which by words and acts of kindness and moral suasion guides, cheers, and encourages those who, because of misfortune and trouble, have become discouraged and depressed in spirit, and who are thereby impelled and urged on to renewed effort. The uniting and blending of the two kinds of assistance mentioned, namely, the moral with the material, is charity in its highest and most perfect form.
As suggested, it is a matter of common knowledge that it is the aim of fraternal orders generally to teach, foster, and encourage this kind of charity as one of their cardinal principles. And it appears from the facts stipulated in the record that plaintiff is no exception to the general rule. The only difference between plaintiff and other fraternal orders in this respect is, that in most, if not all, of the other societies of this kind, the charity dispensed by way of material assistance is confined to the members of such orders and their families, whereas, plaintiff, as. found by the court, “dispenses charity . . . not only to its members and [19]*19tbeir families, but also to the public at large.” Therefore tbe question of whether plaintiff realizes a profit from the sales of liquors, cigars, and refreshments is not of controlling importance. The question of profits became a factor in the case because of the claim made by respondent that the property is not occupied and used exclusively for charitable purposes, but that the part on which the sales mentioned are conducted is used for business purposes, and hence does not come within the provisions of the statute under consideration. In answer to this claim plaintiff contends that as the use thus made of the property is a part of the general scheme or plan for carrying into effect the purposes of the lodge “to promote good’ fellowship among its members and for charitable purposes,” and not for the purpose of gain or profit, it is, within the meaning of the law, “used exclusively” for charitable purposes. And it is pointed out that the profits incidentally derived from the uses made of the property go into the charitable fund.
The statutes of Massachusetts, among other things, provide that “the personal property of literary, benevolent, charitable, and scientific institutions, incorporated within this commonwealth, and the real estate belonging to such institutions occupied by them pr their officers for the purposes for which they were incorporated” shall be exempt from táxation. In the case of Phillips Academy v. Andover, supra, the court, in distinguishing between occupancy of property for private gain or profit and an occupancy as contemplated by the statute says:
“The distinction lies, it seems to us, between an occupancy which is for private benefit and convenience of the officers, 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 and principal matter of consideration is the effect of the occupancy (use in case at bar) 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 advantage from the occupancy would not deprive the property of the exemption to which it otherwise would be entitled.”
[20]*20This doctrine is reaffirmed by the same court in a later case (Emerson v. Trustees of Milton Academy, 185 Mass. 414, 70 N. E. 442), in the following language:
“It is that the purposes mentioned in the statute refer to the direct and immediate result of the occupation of the property, and not to the consequential benefit to be derived from the use of it. An occupation and use of real estate to produce income to be expended for the purposes for' which the institution was incorporated is not within the statute, while an occupation whose dominant purpose is directly to accomplish some one of the objects for which the corporation was established is within it. If incidentally these are results of the use which would not entitle the property to exemption, that is immaterial so long as the dominant purpose of the occupation is within the statute.”
In the case of New England Sanitarium v. Stoneham, 205 Mass. 335, 91 N. E. 385, the court says:
“The increase of charitable funds through receipts from patients or inmates who are able to pay wholly or partially for benefits received, does not change a home for aged people, or hospital, organized and conducted as a charity, into a private association,, maintained for the pecuniary advantage of the promoters. The original eleemosynary character of the institution is not transformed by the patronage, even if sufficient to relieve ■ it from financial burdens, but the charity established remains unaffected (citing cases). . . . The' petitioners’ statutory rights are not to be ascertained by an apportionment of the classes who may have been benefited, so that if the number of paying patients preponderates, the exemption fails. The dominant purpose for the promotion of which the institution was organized and has been maintained furnishes the test whether it is a business organization conducted for commercial gain with incidental acts of benevolence and philanthropy.”
The statutes of Illinois (Hurd’s Rev. St. 1905, c. 120, section 2, subd. 7) provide that “all property of institutions of public charity, when actually and exclusively used for such charitable purposes not leased or otherwise used with a view to profit” shall be exempt from taxation. (Italics ours.) In the case of Sisters of St. Francis v. Board of Review, 231 Ill. 317, 83 N. E. 272, it is held that the fact that the percentage of charity patients treated by a hospital is small compared with those who pay for treatment does not affect the character of the hospital as a public charity. In the course of the opinion the court said:
[21]*21“Where an institution devoted to beneficence of that character is, under the law, exempt from taxation, it does not lose its immunity by reason of the fact that those patients received by it who are able to pay are required to do so, or by reason of the fact that it receives contributions from outside sources, so long as all the money received by it is devoted to the general purpose of charity, and no portion of the money received by it is permitted to inure to the benefit of any private individual engaged in managing the charity.”
It would be a work of supererogation on our part to cite the many cases bolding to this doctrine.
Respondent, in support of his contention that the property in question is not, in the meaning of the law, used exclusively for charitable purposes, cites the case of Parker v. Quinn, 23 Utah, 332, 64 Pac. 961. In that case the Fifteenth Ward Relief Society, a charitable organization, owned a two-story brick building, the upper story of which was used continuously by the society for the holding of meetings and the performance of work by its members in furtherance of its charitable purposes. The lower floor of the building contained two storerooms, one of which was rented for $12.50 per month and the other, at the time the ease was tried, was offered for rent. The rental received was used for charitable purposes. The plaintiff claimed that the property, including the two rooms which were held merely as a source of revenue the use of which had nothing to do with the charitable work of the society, was exempt from taxation. The court held, and properly so, that the portion of the building which was not used by the organization for its own purposes, but was kept as an investment for business purposes, was not exempt from taxation. In the course of the opinion it is said:
“Only such of the society’s property, therefore,, as is occupied and used ‘exclusively’ for charitable purposes is exempt from taxation. It follows that the exemption does not extend to that portion not appropriated by the society to its own use, but held as a source of revenue. . . . Where, therefore, as in this case, a portion of certain property owned by a charitable institution is occupied and used by it for charitable purposes, and the other portion thereof is devoted to purposes of revenue, the portion used and occupied for charitable purposes is exempt, and the portion not so used and occupied is subject to taxation.”
[22]*22The following cases cited by respondent are to the same effect: Hibernian Benev. So. v. Kelly, 28 Ore. 173, 42 Pac. 3, 30 L. R. A. 167, 52 Am. St. Rep. 769; Fitterer v. Crawford, 157 Mo. 51, 57 S. W. 532, 50 L. R. A. 191; Massenburg et al. v. Gd. Lodge F. & A. M., 81 Ga. 212, 7 S. E. 636; College v. State, 19 Ohio, 110; Appeal Tax Court of Baltimore v. Gd. Lodge A. F. & A. M., 50 Md. 421; First Methodist Episcopal Church, etc. v. City of Chicago, 26 Ill. 482; Orr v. Baker, 4 Ind. 86; Philadelphia, Appellant, v. Barber, 160 Pa. 123, 28 Atl. 644; Morris v. Lone Star Chap No. 6 R. A. Masons, 68 Tex. 698, 5 S. W. 519.
The facts in this case, as stipulated by the parties, do not bring it within the rule as declared by these decisions. No part of the building in question is or was leased to third parties nor was it otherwise used for business purposes. Nor can the sale of liquors, cigars, and luncheons carried on therein as found by the court be regarded a general business. All that can be claimed, as against appellant’s contentions, for these sales is that' they are merely incidentals to the use made of the building for charitable purposes. ‘ They are made to members only, and do not exclude or materially interfere with the use made of the building for charitable purposes. If we, in construing the constitutional and statutory provisions under consideration, should give to the word “exclusive” the strict technical verbal meaning contended for by respondent, practically every private hospital, and, with but a very few exceptions, every church building erected and used for religious worship within this state would be subject to taxation, because it is a matter of common knowledge that in many, if not in the majority of cases, the patients who go to or are sent to private hospitals for medical treatment are required to pay for the nursing and care they receive, and are not recipients of charity as the term is usually used and understood; and it is equally well known that it is not an uncommon thing for church buildings which are erected and are used for religious worship to be used for social entertainments, the giving of lectures, and for other like purposes, secular in character, for which, in many cases, admission fees [23]*23are charged. It is a matter of common knowledge that there are throughout the state church buildings which are more frequently used for the giving of lectures, concerts', organ recitals, and for holding meetings of a secular nature, to some of which admission fees are charged, than for religious worship. The various secular uses made of these buildings being merely incidental to the main or paramount purpose for which they were erected and are maintained, and which in no way interfere with the use made of them for religious worship, we do not think it can be seriously contended that the buildings are not, within the meaning of the law, “used exclusively” for religious worship. Therefore, in this state, buildings used for religious worship and those used for charitable purposes, generally speaking, are not used for those purposes to the absolute exclusion of all other uses. Nor do we think that it was the intention of the framers of'the Constitution that they should' be so used in order to entitle them to the benefit of the exemption. So long as the incidental uses made of such buildings do not exclude or interfere with their use for religious worship, or for charitable purposes, as the case may be, then such incidental uses do' not deprive the property of the benefit of the exemption. To hold otherwise would, in effect, annul the provision of the Constitution and statute under consideration by defeating the very purposes for which it was adopted.
It is conceded that “ the great weight of authority is to the effect that as a lodge appellant is a charitable institution.” This ought to end the inquiry provided this case is to be ruled and decided in accordance with the weight of authority, because, as we have pointed out, the serving of luncheons and refreshments, the dispensing of liquors and cigars to the members, and the playing of cards and billiards are evidently a part of the social feature of the lodge. But it is suggested that there is no “particular charitable use or purpose to which the building in question is devoted except that the third floor is used for a lodge — that is, on the floor the members hold their lodge meetings.” It is, however, further suggested that “if the entire building were used for lodge meetings or [24]*24lodge purposes it might well be held to be exempt from taxation.” But it is claimed that because plaintiff maintains a buffet and furnishes to its members only cigars and liquors “at about the same prices paid at the bars and saloons in Salt Lake City,” it is therefore engaged in the business of running a saloon, and because it furnishes its members luncheon and refreshments at a profit it is also keping a restaurant, and hence the property in question is not, within the meaning of the law, used exclusively for charitable purposes.
In answer to the suggestion that the property in question is devoted to and used for maintaining and carrying on a saloon business rather than for charitable purposes, it is sufficient to say that the floor on which the cigars and liquors are sold at a profit to the members is occupied and used by a social club, an arm, if not one of the main pillars of the lodge, and not as a saloon as the term “saloon” is generally used and understood. It is a matter of common knowledge that nearly if not all of the drug stores in this city, in a limited way, deal in intoxicating liquors; that is, they do what is termed a “bottle business.” It is generally, if not universally, known that the Commercial Club of this city, which has rendered and is rendering services of incalculable value to the business interests as well as to the people generally of this state, maintains a buffet where cigars and liquors are sold to its members only. And it is equally well known that a number of other clubs in this city and elsewhere in the state keep a buffet where liquors are sold to the members thereof. According to the claim here made, nearly if not all of the drug stores in this city are saloons, and to call them anything else is to “make a distinction where there is no difference,” and every member of the clubs mentioned is indirectly, if not directly, engaged in the saloon business, and to hold otherwise would also be making “a distinction where there is no difference.” And if the hospitals in this state that are recognized as charitable institutions should keep intoxicating liquor on hand for the use of their patients only and sell the same at a profit to those who might require it and are able to pay for it, under the contention here made, those hospitals [25]*25would no longer be charitable institutions but saloons, and hence would be subject to taxation.
The question of whether a social club or fraternal order that maintains in connection with its club or lodge room a buffet as one of the social features of the club or order as the case may be, and as> a part of the general scheme or plan of carrying out the purpose of the club or order, and in such buffet sells at a profit to its members liquors and cigars, the profit derived being a mere incident -and not the purpose for which the buffet is maintained, is, in a technical sense, engaged in the saloon business, is not of vital importance, and our only reason for devoting so much time and space to this phase of the controversy is that it is broadly asserted that plaintiff is- engaged in the business of running a saloon, and that it therefore necessarily follows that the property in question cannot in any sense be devoted to charitable purposes. We are therefore impelled to point out that plaintiff is not engaged in the saloon business in the sense in which the term is usually understood and applied. The statutes of this state make a distinction between a saloon and a club which dispenses intoxicating liquors and cigars, and this court is bound to recognize such distinction provided it is material to the questions involved.
The cause is reversed, with directions to the trial court to set aside its findings of fact and conclusions of law so far as they are at variance with the views herein expressed, and the judgment rendered thereon, and to make findings of fact and conclusions of law and to render judgment for the plaintiff in accordance with the prayer of the complaint. Appellant to recover costs.