Summary
striking down property tax exemption for nursing homes “owned, operated and managed by a religious or Masonic organization”
Summary of this case from Freedom from Religion Found., Inc. v. LewOpinion
No. 79PA97
Filed 3 April 1998
Constitutional Law § 119 (NCI4th); Taxation § 28 (NCI4th) — homes for aged, sick, infirm — exclusion of property from taxation — religious or Masonic affiliation — violation of establishment of religion clause Subpart (v) of N.C.G.S. § 105-275 (32), which sets out the requirement of religious or Masonic affiliation for the exclusion from the tax base of property owned by a home for the aged, sick or infirm pursuant to subsection (32), violates the prohibition against the establishment of religion found in the First Amendment of the United States Constitution and Article I, § 13 of the North Carolina Constitution. Furthermore, subpart (v) is an integral part of the definition of a qualifying home for the aged, sick or infirm contained in subsection (32) and may not be severed therefrom so that the entire subsection (32) must fail.
Justice LAKE dissenting.
Appeal of Wake County pursuant to N.C.G.S. § 7A-30(1) from a unanimous decision of the Court of Appeals, 125 N.C. App. 184, 479 S.E.2d 795 (1997), reversing an order of the Property Tax Commission entered 16 November 1995 and holding N.C.G.S. § 105-275(32) unconstitutional in part. On 5 June 1997, the Supreme Court allowed discretionary review of an additional issue. Heard in the Supreme Court 14 October 1997.
Wake County Attorney's Office, by Shelley T. Eason, Deputy Wake County Attorney, for appellant Wake County.
James M. Kimzey for appellees Springmoor, Inc., and Ammons, Inc.
North Carolina Association of County Commissioners, by James B. Blackburn III, General Counsel, and Kimberly M. Grantham, Assistant General Counsel, amicus curiae.
Poyner Spruill, L.L.P., by Susanne F. Hayes and Robin T. Morris, on behalf of Non-Profit Qualifying Homes for the Aging, amicus curiae.
Michael F. Easley, Attorney General, by George W. Boylan, Special Deputy Attorney General, for the State, amicus curiae.
The issue in this case is whether N.C.G.S. § 105-275(32) is unconstitutional and, if so, whether the allegedly unconstitutional subpart (v) may be severed, allowing the remainder of the statute to stand.
Springmoor, Inc. (Springmoor) is a nonprofit North Carolina corporation which manages and operates a self-contained residential community for the elderly, also called Springmoor, in Raleigh, North Carolina. Springmoor leases all of the real property on which it is located from Ammons, Inc. (Ammons) under a lease which provides that Springmoor will pay all ad valorem taxes assessed on the property.
On 27 January 1994, taxpayers Ammons and Springmoor applied for property tax exemptions for this real property and for personal property used in the operation of the retirement community. On 22 February 1994, the Wake County Tax Assessor denied both requests. Subsequently, the Wake County Board of Equalization and Review agreed with the assessor and denied the requests for exemption. Both parties appealed to the North Carolina Property Tax Commission (Commission).
The Commission concluded that Springmoor met all the requirements for exclusion under N.C.G.S. § 105-275(32) except that of religious or Masonic affiliation as required by subpart (v). The Commission affirmed Wake County's denial of tax relief, but noted that it did not have the authority to act upon constitutional challenges to tax statutes. Springmoor and Ammons filed timely notice of appeal to the Court of Appeals and excepted to the Commission's order on the ground that N.C.G.S. § 105-275(32)(v) is unconstitutional. Wake County cross-assigned error, asserting that the Commission's order denying the tax exclusion is sustainable on the basis that the entire statutory provision N.C.G.S. § 105-275(32) is unconstitutional.
The Court of Appeals concluded that N.C.G.S. § 105-275(32)(v) violates the prohibition against the establishment of religion found in Article I, Section 13 of the North Carolina Constitution and the Establishment Clause of the First Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment. The Court of Appeals applied the doctrine of severability, however, and allowed the remaining provisions of N.C.G.S. § 105-275(32) to stand.
N.C.G.S. § 105-275 is entitled "Property classified and excluded from the tax base." The constitutional challenge in this case is solely against N.C.G.S. § 105-275(32) and, more specifically, subpart (v) of that subsection. N.C.G.S. § 105-275(32) provides that the following property "shall not be listed, appraised, assessed, or taxed":
Real and personal property owned by a home for the aged, sick, or infirm, that is exempt from tax under Article 4 of this Chapter, and used in the operation of that home. The term "home for the aged, sick, or infirm" means a self-contained community that (i) is designed for elderly residents; (ii) operates a skilled nursing facility, an intermediate care facility, or a home for the aged; (iii) includes residential dwelling units, recreational facilities, and service facilities; (iv) the charter of which provides that in the event of dissolution, its assets will revert or be conveyed to an entity organized exclusively for charitable, educational, scientific, or religious purposes, and which qualifies as an exempt organization under Section 501(c)(3) of the Internal Revenue Code of 1986; (v) is owned, operated, and managed by one of the following entities: a. A congregation, parish, mission, synagogue, temple, or similar local unit of a church or religious body;
b. A conference, association, division, presbytery, diocese, district, synod, or similar unit of a church or religious body;
c. A Masonic organization whose property is excluded from taxation pursuant to G.S . 105-275(18); or
d. A nonprofit corporation governed by a board of directors at least a majority of whose members elected for terms commencing on or before December 31, 1987, shall have been elected or confirmed by, and all of whose members elected for terms commencing after December 31, 1987, shall be selected by, one or more entities described in A., B., or C. of this subdivision, or organized for a religious purpose as defined in G.S. 105-278.3(d)(1); and
(vi) has an active program to generate funds through one or more sources, such as gifts, grants, trusts, bequests, endowment, or an annual giving program, to assist the home in serving persons who might not be able to reside at the home without financial assistance or subsidy.
N.C.G.S. § 105-275(32) (1997) (emphasis added). Under this statute, a "home for the aged, sick, or infirm" "shall not be listed, appraised, assessed, or taxed," meaning that it is excluded from the tax base. In order to be excluded from the tax base, such a home for the aged, sick, or infirm, under subpart (v) of N.C.G.S. § 105-275(32), must be owned, operated, and managed by a religious or Masonic organization, in addition to meeting the other requirements of subsection (32).
Both Wake County, appellant in this case, and Ammons and Springmoor, appellees, contend that subpart (v) of N.C.G.S. § 105-275(32) constitutes a law respecting an establishment of religion. For this reason, this Court, on 16 October 1997, instructed the Attorney General to file a brief, pursuant to N.C.G.S. § 1-260, addressing the constitutionality of N.C.G.S. § 105-275(32). The Attorney General filed a brief, on 17 November 1997, taking the position that N.C.G.S. § 105-275(32) is unconstitutional. However, a group of continuing-care homes for the elderly which are owned and operated by churches argues as amicus curiae in this case that N.C.G.S. § 105-275(32) is constitutional. Because we do not lightly strike down an enactment of the General Assembly, we address the issue of constitutionality.
Article I, Section 13 of the North Carolina Constitution guarantees that
[a]ll persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience.
N.C. Const. art. I, § 13. Article I, Section 19 guarantees that "[n]o person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of . . . religion." N.C. Const. art I, § 19. The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I.
This Court has previously stated that "[t]aken together, these provisions . . . coalesce into a singular guarantee of freedom of religious profession and worship, ' as well as an equally firmly established separation of church and state.'" Heritage Village Church Missionary Fellowship, Inc. v. North Carolina, 299 N.C. 399, 406, 263 S.E.2d 726, 730 (1980) (quoting Braswell v. Purser, 282 N.C. 388, 393, 193 S.E.2d 90, 93 (1972)) (emphasis added). "Stated simply, the constitutional mandate is one of secular neutrality toward religion." Id. We have recognized that while the religion clauses of the state and federal Constitutions are not identical, they secure similar rights and demand the same neutrality on the part of the State. Id. at 406 n. 1, 263 S.E.2d at 730 n. 1. Thus, we may utilize Establishment Clause jurisprudence to examine legislation for "aspects of religious partiality" prohibited by both constitutions. Id. at 406, 263 S.E.2d at 730.
Amicus curiae homes contend that N.C.G.S. § 105-275(32) does not breach the required separation of church and state and that the Court of Appeals erred in holding otherwise. They rely on Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 25 L.Ed.2d 697 (1970), which held that a New York statute granting tax exemptions to religious organizations for property used solely for religious worship did not violate the religion clauses of the First Amendment. The United States Supreme Court explained that "[t]he grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state." Id. at 675, 25 L.Ed.2d at 705. However, we conclude that Walz does not control the outcome of this case because N.C.G.S. § 105-275(32) differs in purpose, function, and constitutional authority from the statute analyzed and upheld in Walz.
The New York statute at issue in Walz provided in pertinent part:
"Real property owned by a corporation or association organized exclusively for the moral or mental improvement of men and women, or for religious, bible, tract, charitable, benevolent, missionary, hospital, infirmary, educational, public playground, scientific, literary, bar association, medical society, library, patriotic, historical or cemetery purposes . . . and used exclusively for carrying out thereupon one or more of such purposes . . . shall be exempt from taxation as provided in this section."
Id. at 667 n. 1, 25 L.Ed.2d at 700 n. 1 (quoting N.Y. Real Prop. Tax Law § 420(1)) (alterations in original).
The authority for granting these property tax exemptions was a provision of the New York Constitution which stated in relevant part:
"Exemptions from taxation may be granted only by general laws. Exemptions may be altered or repealed except those exempting real or personal property used exclusively for religious, educational or charitable purposes as defined by law and owned by any corporation or association organized or conducted exclusively for one or more of such purposes and not operating for profit."
Id. at 666-67, 25 L.Ed.2d at 700 (quoting N.Y. Const. art. 16, § 1).
Central to the Supreme Court's holding in Walz was that New York had "not singled out one particular church or religious group or even churches as such; rather, it ha[d] granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations." Id. at 673, 25 L.Ed.2d at 703-04. The Court therefore found that the tax exemption for houses of worship "simply spare[d] the exercise of religion from the burden of property taxation levied on private profit institutions." Id. at 673, 25 L.Ed.2d at 704.
North Carolina has similar constitutional and statutory provisions that allow the General Assembly to exempt from property tax properties used for religious purposes. Article V, Section 2(3) of the North Carolina Constitution reads in relevant part:
Exemptions. Property belonging to the State, counties, and municipal corporations shall be exempt from taxation. The General Assembly may exempt cemeteries and property held for educational, scientific, literary, cultural, charitable, or religious purposes. . . . Every exemption shall be on a State-wide basis and shall be made by general law uniformly applicable in every county, city and town, and other unit of local government.
N.C. Const. art. V, § 2(3). Under this authority, the General Assembly has enacted the following statutory tax exemptions: N.C.G.S. §§ 105-278.2(a) (burial property), -278.3 (real and personal property used for religious purposes), -278.4 (real and personal property used for educational purposes), -278.5 (real and personal property of religious educational assemblies used for religious and educational purposes), -278.6 (real and personal property used for charitable purposes), -278.7 (real and personal property used for educational, scientific, literary, or charitable purposes), and -287.8 (real and personal property used for charitable hospital purposes). These statutes require whole and exclusive use of the property for the constitutionally authorized purpose and disallow the exemption to the extent that any part of the property is used for other purposes.
This group of statutes, like the statute challenged in Walz, exempts from taxation a broad range of property based upon usage. It is not challenged that the North Carolina property tax exemption equivalent to that challenged in Walz, N.C.G.S. § 105-278.3 (1997), is constitutional under the analysis used by the United States Supreme Court in Walz. Religious organizations whose property is used exclusively for religious or other constitutionally authorized purposes may share in the benefit bestowed upon other groups which the State has determined have a "beneficial and stabilizing influence in community life." Walz, 397 U.S. at 673, 25 L.Ed.2d at 704. Indeed, all of the fifty states have similar tax exemptions for property used for religious purposes. See id. at 676, 25 L.Ed.2d at 705; see also John W. Whitehead, Tax Exemption and Churches: A Historical and Constitutional Analysis, 22 Cumb. L. Rev. 521, 547 (1992). Such tax exemptions constitute an acceptable accommodation of religion, which has been called "benevolent neutrality." Walz, 397 U.S. at 669, 25 L.Ed.2d at 702. As the Court in Walz noted, tax exemption for churches "tends to complement and reinforce the desired separation" of church and state. Id. at 676, 25 L.Ed.2d at 705.
However, the statute at issue in this case, N.C.G.S. § 105-275(32), is of an entirely different character from the one analyzed and upheld in Walz. N.C.G.S. § 105-275 designates special classes of property that are excluded from the tax base and that "shall not be listed, appraised, assessed, or taxed." The constitutional authority for this statute is Article V, Section 2(2), which gives the General Assembly the power of "classification," as distinguished from "exemption." N.C.G.S. § 105-275. The relevant provision of Article V, Section 2(2) reads:
Classification. Only the General Assembly shall have the power to classify property for taxation, which power shall be exercised only on a State-wide basis and shall not be delegated. No class of property shall be taxed except by uniform rule. . . .
N.C. Const. art. V, § 2(2).
Under this authority, the General Assembly has enacted a broad range of classifications from tangible personal property imported and stored in the state for further shipment (subsection (2)) to computer software (subsection (40)). N.C.G.S. § 105-275. Included among these classifications is subsection (32), "property owned by a home for the aged, sick, or infirm." However, subsection (32) goes on to define such homes to include only those owned, operated, and managed by religious or Masonic organizations.
This statute's function is to describe a separate class of property for exclusion from the tax base, rather than to provide a tax exemption to religious organizations for property used for religious purposes. The relevant class of property at issue here is "property owned by a home for the aged, sick, or infirm." N.C.G.S. § 105-275(32). It is entirely appropriate to consider, in the context of determining whether this classification is proper, only the legislative treatment of all similarly situated nonprofit homes for the aged, sick, or infirm.
We conclude that our Court of Appeals correctly distinguished Walz from the instant case. As explained by the Court of Appeals:
Unlike Walz, the broad classification of property addressed by the statute in question here is "[r]eal and personal property owned by a home for the aged, sick, or infirm, . . . and used in the operation of that home." G.S. 105-275(32). This broad classification, standing alone without further qualification, would undeniably be a constitutionally permissible classification. The alleged constitutional infirmity here arises because G.S. 105-275(32) distinguishes, within this class of "home[s] for the aged, sick and infirm," between those that are religiously affiliated and those that perform essentially the same functions but lack any religious affiliation, and G.S. 105-275(32) grants exemption to the former while denying exemption to the latter.
In re Springmoor, Inc., 125 N.C. App. 184, 191, 479 S.E.2d 795, 799 (1997) (alterations in original). We agree with the Court of Appeals that the classification drawn by N.C.G.S. § 105-275(32) is "narrowly divided so as to prefer religion over non-religion" and that there is "no legitimate secular objective sufficient to justify this preference." Id. (citing Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17, 103 L.Ed.2d 1, 14 (1989)).
Without question, the power to classify property for tax purposes belongs to the General Assembly. N.C. Const. art. V, § 2(2); see, e.g., Lenoir Fin. Co. v. Currie, 254 N.C. 129, 118 S.E.2d 543, appeal dismissed, 368 U.S. 289, 7 L.Ed.2d 336 (1961). However, the limitation upon this power of classification is that "it must be reasonable and not capricious or arbitrary." Leonard v. Maxwell, 216 N.C. 89, 93, 3 S.E.2d 316, 320, appeal dismissed, 308 U.S. 516, 84 L.Ed. 439 (1939). The classification must bear a "'substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'" Id. at 94, 3 S.E.2d at 321 (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L.Ed. 989, 990-91 (1920)); see also In re Appeal of Martin, 286 N.C. 66, 76, 209 S.E.2d 766, 773 (1974).
Clearly, promoting the safety and welfare of the aged and infirm is a legitimate, secular legislative purpose. See In re Appeal of Barbour, 112 N.C. App. 368, 379, 436 S.E.2d 169, 177 (1993); Tripp v. Flaherty, 27 N.C. App. 180, 185, 218 S.E.2d 709, 712 (1975). Appellees Springmoor and Ammons urge, and the Court of Appeals determined, that by enacting N.C.G.S. § 105-275(32) the General Assembly "clearly intended 'to promote communities for the elderly without giving a tax windfall to all residential property owners.'" Springmoor, 125 N.C. App. at 192, 479 S.E.2d at 800 (quoting Barbour, 112 N.C. App. at 378, 436 S.E.2d at 176). However, the case cited for this assertion, In re Appeal of Barbour, did not address the specific issue in controversy here. The Court of Appeals in Barbour specifically declined to address a constitutional challenge on the basis of discrimination against nonreligious, non-Masonic homes for the aged, sick, or infirm. Barbour, 112 N.C. App. at 374, 436 S.E.2d at 173-74. The court in Barbour merely held that N.C.G.S. § 105-275(32) was not unconstitutionally discriminatory against individual residential property owners. Id. at 378, 380, 436 S.E.2d at 176, 177.
The classification made by N.C.G.S. § 105-275(32) is challenged in the instant case because it makes preferential tax treatment contingent upon religious (or Masonic) ownership, operation, and management. It treats similarly situated, but competing, communities for the elderly differently. On this basis, the parties, in addition to their Establishment Clause challenge, also contend that N.C.G.S. § 105-275(32) offends the uniformity and the "law of the land" clauses of the North Carolina Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. However, the Court of Appeals did not decide the case on this basis, and we likewise find it unnecessary to address this issue in order to decide this case.
The United States Supreme Court has decreed that "the Lemon v. Kurtzman 'tests' are intended to apply to laws affording a uniform benefit to all religions." Larson v. Valente, 456 U.S. 228, 252, 72 L.Ed.2d 33, 52-53 (1982) (referring to the three-part test set out in Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d 745 (1971), but applying strict scrutiny to laws which discriminate among religions or denominations). In this case, the classification made by N.C.G.S. § 105-275(32) affords "a uniform benefit" to all religious organizations which undertake to operate a home for the aged, sick, or infirm. Thus, the appropriate mode of analysis is an Establishment Clause inquiry, which utilizes the Lemon tests.
The Lemon requirements are that: (1) the law must serve a secular legislative purpose, (2) the principal or primary effect of the law must be one that neither advances nor inhibits religion, and (3) the law must not foster excessive government entanglement with religion. Lemon, 403 U.S. at 612-13, 29 L.Ed.2d at 755; see also Heritage Village Church, 299 N.C. at 407-08, 263 S.E.2d at 731. We conclude that because N.C.G.S. § 105-275(32) excludes from property tax only those homes for the elderly that are owned and operated by religious or Masonic entities, while denying a similar benefit to identically situated secular homes, it has the "principal or primary effect" of advancing religion in violation of the second prong of the Lemon test.
In Texas Monthly, 489 U.S. 1, 103 L.Ed.2d 1, the United States Supreme Court struck down, as a violation of the Establishment Clause, a sales tax exemption for religious publications where other publications were subject to the tax. The Court stated that "the Constitution prohibits, at the very least, legislation that constitutes an endorsement of one or another set of religious beliefs or of religion generally." Id. at 8, 103 L.Ed.2d at 9 (emphasis added). N.C.G.S. § 105-275(32) impermissibly creates the same sort of specialized tax treatment based upon religious affiliation. This Court has likewise stated that the legislature "oversteps the bounds of [the] separation [of church and state] when it enacts a regulatory scheme which, whether in purpose, substantive effect, or administrative procedure, tends . . . to 'discriminate' along religious lines." Heritage Village Church, 299 N.C. at 406, 263 S.E.2d at 730. The property tax exclusion at issue here "discriminates" on its face in favor of religious organizations.
We recognize that "[i]t does not follow, of course, that government policies with secular objectives may not incidentally benefit religion." Texas Monthly, 489 U.S. at 10, 103 L.Ed.2d at 10. However, while N.C.G.S. § 105-275(32) arguably has the objective of promoting and encouraging homes for the aged, sick, or infirm, it goes beyond "incidentally benefitting" those homes which are religiously owned and operated. Religiously affiliated homes are singled out for a tax benefit denied to others that are similarly capable of carrying out the secular objectives which the State may wish to encourage.
Religiously and Masonically affiliated organizations may indeed have a "long and proud history" of providing housing for the elderly. However, this is an insufficient basis upon which to confer a tax benefit that amounts to a "subsidy" to these homes, without providing a similar benefit to other organizations that desire to provide housing and care for the aged and that meet all of the statute's other requirements. See id. at 14, 103 L.Ed.2d at 13 ("Every tax exemption constitutes a subsidy that affects non-qualifying taxpayers, forcing them to become 'indirect and vicarious "donors."'" (quoting Bob Jones Univ. v. United States, 461 U.S. 574, 591, 76 L.Ed.2d 157, 173 (1983))). To exclude from the tax base property owned only by religious (and Masonic) organizations which are carrying out this function "'provide[s] unjustifiable awards of assistance to religious organizations' and cannot but 'conve[y] a message of endorsement' to slighted members of the community." Id. at 15, 103 L.Ed.2d at 13 (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 348, 97 L.Ed.2d 273, 290-91 (1987) (O'Connor, J., concurring)).
To put this case in perspective, it is helpful to examine a decision of the Florida Supreme Court when it was faced with a converse situation. A Florida statute provided a tax exemption for
"[a]ll property, real and personal, of any bona fide home for the aged, licensed by the state board of health, owned and operated by Florida corporations not for profit, which has been and is currently exempt from the payment of taxes to the United States . . . and used by such home for the aged for the purposes for which it was organized. . . ."
Johnson v. Presbyterian Homes of Synod of Florida, Inc., 239 So.2d 256, 258 (Fla. 1970) (quoting Fla. Stat. Ann. § 192.06(14)(a) (1967)). The defendant tax collectors contended that the statute was unconstitutional as applied to homes for the aged owned by religious organizations. In upholding the tax exemption, the Florida Supreme Court stated:
It is apparent that [the statute] was enacted to promote the general welfare through encouraging the establishment of homes for the aged and not to favor religion, since it is not limited to homes for the aged maintained by religious groups, but applies to any which are owned and operated in compliance with the terms of the statute by Florida corporations not for profit. Under the circumstances, any benefit received by religious denominations is merely incidental to the achievement of a public purpose.
Id. at 261 (emphasis added).
Unlike the Florida case, North Carolina's statute excludes from taxation not all bona fide nonprofit homes for the aged but only homes for the aged owned by religious or Masonic bodies. The tax benefit bestowed on religious entities by N.C.G.S. § 105-275(32) is not "merely incidental," but rather is an exclusive benefit denied to other similarly situated nonprofit homes for the aged. To differentiate between those homes for the elderly which are religiously affiliated and those which are not so affiliated, in this case, results in the favoring of the religious over the secular.
For the foregoing reasons, we agree with the Court of Appeals that N.C.G.S. § 105-275(32)(v) "violates the constitutional prohibition against the establishment of religion as found in both the federal and [s]tate constitutions." Springmoor, 125 N.C. App. at 190, 479 S.E.2d at 799.
We now address the issue of severability. While the Court of Appeals correctly stated the doctrine of severability, we do not agree with its application in this case. When determining whether an unconstitutional portion of a statute may be severed and the remainder of the statute enforced, we look to the intent of the General Assembly. Fulton Corp. v. Faulkner, 345 N.C. 419, 421, 481 S.E.2d 8, 9 (1997). Courts may sever unconstitutional portions of statutes when consistent with the legislature's intended goal and when the remaining portions of the statute are "'sufficient to accomplish their proper purpose.'" State v. Fredell, 283 N.C. 242, 245, 195 S.E.2d 300, 302 (1973) (quoting 16 Am. Jur.2d Constitutional Law §§ 181-182 (1964)). However, where the unconstitutional portion of a statute "'is of such import that the other sections without it would cause results not contemplated or desired by the [l]egislature, then the entire statute must be held inoperative.'" American Exch. Nat'l Bank v. Lacy, 188 N.C. 25, 28, 123 S.E. 475, 476 (1924) (quoting Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 565, 46 L.Ed. 679, 692 (1902)). Thus, severance may be applied to save the remainder of a statute "if it is apparent that the legislative body, had it known of the invalidity of the one portion, would have enacted the remainder alone." Jackson v. Guilford County Bd. of Adjustment, 275 N.C. 155, 168, 166 S.E.2d 78, 87 (1969). The inclusion of a severability clause within a statute will be interpreted as a clear statement of legislative intent to strike an unconstitutional provision and to allow the balance to be enforced independently. Fulton Corp., 345 N.C. at 422, 481 S.E.2d at 9.
Thus, our inquiry is not only whether the unconstitutional provision may be severed leaving a statute which is capable of enforcement, but also whether enforcement of the remainder, minus the offending provision, would be true to the legislative intent. We conclude that subpart (v), which sets out the requirement of religious or Masonic affiliation, is an integral part of the definition of a qualifying "home for the aged, sick, or infirm" contained in N.C.G.S. § 105-275(32) and may not be severed.
The Act was passed under the title "An Act to Classify Property Owned by Certain Nonprofit Homes for the Aged, Sick or Infirm and Exclude this Property from Taxation." Act of June 12, 1987, ch. 356, 1987 N.C. Sess. Laws 461. The language and title of the Act clearly indicate the General Assembly's intent to make this tax exclusion available only to certain rest homes, those which meet all six of the enumerated requirements. We note that homes for the aged, sick, or infirm that own property used exclusively for "charitable" purposes qualify for a tax exemption under N.C.G.S. § 105-278.6(a)(2). Indeed, the Court of Appeals has pointed out that N.C.G.S. § 105-275(32) was enacted to grant tax-exempt status to certain communities which had lost their status as charitable as a result of a series of earlier Court of Appeals' decisions. Barbour, 112 N.C. App. at 378-79, 436 S.E.2d at 176-77. We conclude that the General Assembly carefully crafted the specific definition of a qualifying "home for the aged, sick, or infirm" found in N.C.G.S. § 105-275(32) and that it intended every element of the definition to be operative. We find no evidence that the General Assembly intended, by enacting this subsection, to provide a blanket exclusion for all nonprofit homes for the elderly. However, nothing in this opinion should be taken as suggesting that the General Assembly may not, in its wisdom, enact such an exclusion.
We further note that the approach taken by the Court of Appeals has the effect of broadening the tax exclusion. It has long been established that
"[i]f by striking out a void exception, proviso, or other restrictive clause, the remainder, by reason of its generality, will have a broader scope as to subject or territory, its operation is not in accord with the legislative intent, and the whole would be affected and made void by the invalidity of such part."
Keith v. Lockhart, 171 N.C. 451, 458, 88 S.E. 640, 643 (1916) (holding that a discriminatory provision of a tax levy could not be severed) (quoting L J.G. Sutherland, Statutes and Statutory Construction § 306, at 597 (John Lewis ed., 2d ed. 1904)).
Finally, while the absence of a severability clause is not necessarily conclusive, it does provide evidence of legislative intent. Cf. Fulton Corp., 345 N.C. at 422-24, 481 S.E.2d at 9-10 (holding that the presence of a severability clause demonstrated legislative intent). The General Assembly did not include a severability clause within N.C.G.S. § 105-275(32), nor is there any language within this subsection which would indicate an intent to allow the severance of any element from the definition of a "home for the aged, sick, or infirm." Therefore, we conclude that subpart (v) of N.C.G.S. § 105-275(32) may not be severed and that the entire subsection must fail.
Because we determine that the General Assembly did not intend to provide a blanket exclusion for all nonprofit homes for the elderly and that the Court of Appeals thus erred in severing subpart (v) from N.C.G.S. § 105-275(32), we find it unnecessary to address the issue of whether severance was proper under Article V, Section 2 of the North Carolina Constitution.
For the foregoing reasons, we hold that N.C.G.S. § 105-275(32) is unconstitutional and that severance of the offending subpart (v) is not permissible.
AFFIRMED IN PART, REVERSED IN PART.