Summary
In Madison Aerie No. 623 F.O.E. v. Madison (1957), 275 Wis. 472, 474, 475, 82 N.W.2d 207, this court held that in certiorari proceedings circuit courts have no jurisdiction to disturb the findings of a board of review in the absence of bad faith if the evidence presented furnishes a substantial basis for that valuation, but that clear errors of law must be corrected by courts on certiorari. Failure to make the assessment on the statutory basis is such an error of law.
Summary of this case from State ex Rel. Garton Toy Co. v. MoselOpinion
March 7, 1957 —
April 9, 1957.
APPEAL from a judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed.
For the appellant there was a brief by McAndrews Melli, and oral argument by William K. Chipman and Joseph A. Melli, all of Madison.
For the respondent there was a brief by Harold E. Hanson, city attorney, and Henry B. Buslee, assistant city attorney, and oral argument by Mr. Buslee.
Upon certiorari the circuit court affirmed the action of the city board of review assessing the property of the Fraternal Order of Eagles.
The plaintiff and appellant is a nonprofit corporation. Hereinafter it will be referred to simply as the "Eagles." It owns a clubhouse to which at times only members of the order are admitted and which at other times accommodates nonmembers. The statutes involved are those of 1953. Sec. 70.11 (4) thereof exempts from general property taxation property not exceeding 10 acres owned and used exclusively by fraternal societies operating under the lodge system, while such property is not used for profit. Sec. 70.11 (8) provides for partial taxation where at times the property has such exclusive uncompensated use and at other times the use is nonexclusive and for pecuniary profit. That subsection reads:
"Where property for which exemption is sought pursuant to this section is used in part for exempt purposes and in part for pecuniary profit, then the same shall be assessed for taxation at such percentage of the full market value of said real and personal property as shall fairly measure and represent the extent of such use for pecuniary profit. In determining the amount of such assessment, the term `pecuniary profit' as used in this section is hereby defined as the use of any portion of said premises or facilities for purposes not directly included within the objects of such organization for which use compensation is received, and the space so used, the period of such use, and all other factors tending to measure the extent thereof, shall be considered in fixing the amount of such assessment. The term `pecuniary profit' as used in this section shall not be deemed to include such incidental income as that derived by such organization from occasional social affairs conducted principally by and for the members of such organization but which nonmembers may attend, nor any income derived from the resale of any merchandise given or donated to any charitable or benevolent society or association when such income is used for the purposes of such society or association. The use of `pecuniary profits' derived from the use of all or a portion of any premises shall not create an exemption in favor of such property. The occasional renting of such halls or buildings for public purposes shall not render them taxable, provided that all income derived therefrom be used for the upkeep and maintenance thereof."
It is conceded that the appellant is a fraternal society operating under the lodge system and that it is entitled to a partial exemption. The extent of such exemption is the question in dispute. The city assessor divided the use to which the Eagles' property was put as 25 per cent exclusive and 75 per cent nonexclusive and for profit and for tax purposes assessed the property at 75 per cent of its total equalized value. Upon review, on application of the taxpayer, the board of review revised these proportions to 50 per cent in each category. This action was sustained by the judgment of the circuit court on certiorari. The taxpayer appeals from that judgment contending that the nonexempt use was no more than 8.2 per cent.
Other material facts are stated in the opinion.
The appellant submits that both the assessor and the board of review failed to make an apportionment between taxable and exempt values in the manner prescribed by sec. 70.11 (8), Stats., resulting in a gross overassessment.
"The courts do not have jurisdiction to disturb the findings of a board of review except where the board acts in bad faith or exceeds its jurisdiction. State ex rel. Pierce v. Jodon (1924), 182 Wis. 645, 197 N.W. 189. In the absence of bad faith, if the evidence presented to the board of review is sufficient to furnish a substantial basis for the valuation found by the board, its decision will not be disturbed. Wisconsin Malting Co. v. Manitowoc (1937), 225 Wis. 393, 274 N.W. 288." State ex rel. Enterprise Realty Co. v. Swiderski (1955), 269 Wis. 642, 644, 70 N.W.2d 34.
Clear errors of law, however, may be corrected by the courts upon certiorari. Milwaukee Iron Co. v. Schubel (1872), 29 Wis. 444, 451. The appellant contends that the board's alleged violation of sec. 70.11 (8), Stats., in apportioning the nonexempt use brings relief within the scope of certiorari.
The record shows that in their clubhouse the Eagles operate a dining room, bar, bowling alley, and numerous meeting rooms and halls. These facilities are served by the heating and ventilating systems and kitchen which occupy other portions of the building. The dining room is open to and used by the public from 11:30 a. m. to 2 p. m. daily and to members and their guests, only, from 5 p. m. to midnight on weekdays and 12:30 a. m. on week ends. During the public hours many of the patrons are Eagles. The bowling alley is open to and used by the public on Saturday and Sunday. On Monday it is used at certain hours by the Gisholt League and the Industrial League, on Tuesday by the Workmen's League and the Sportmen's League, on Wednesday afternoon by the Industrial League. Only Eagles and their guests use the alleys on other days. Many members of the various league teams are Eagles and on Saturdays and Sundays many of the bowlers are Eagles. Compensation is paid for the use of the alleys by the bowlers whether Eagles or not. The bar is used by nonmembers during the hours when they may patronize the other departments of the clubhouse. The meeting halls and other rooms are used primarily by Eagles, their families, and guests, but there is a fairly constant and regular rental of these spaces to outsiders for dances and receptions. Appellant supplied the board of review with figures tending to show the proportion of members and their guests, compared to nonmembers, who used the clubhouse at the times it, or part of it, was open to nonmembers, and contends that the statute demands that the nonexempt use be determined by this comparison. For example, if during the time the dining room is open to the public one half the patrons are Eagles the taxable value of the dining room for that time is an undivided one half of the actual value, the other undivided one half being exempt because the customers served are Eagles. The city, on the other hand, submits that during the hours when the public is served the whole dining area, with its kitchens, heating and ventilation is a public, not a fraternal facility, and no proportion of its value is exempt, regardless of the number of Eagles who may be dining there compared to the diners who are not Eagles.
Statutes exempting property from taxation are to be strictly construed and all doubts are resolved in favor of its taxability. To be entitled to tax exemption the taxpayer must bring himself within the exact terms of the exemption statute. These principles are so well established that specific citation is unnecessary. Those who doubt them may refer to 16 Callaghan's Wisconsin Digest, Taxation, p. 59, sec. 98.
As we read sec. 70.11 (8), Stats., it does not confine the board of review to the per capita standard urged by appellant but contemplates the employment of "all other factors tending to measure the extent of such [ i. e., nonexempt] use." We consider it is quite reasonable, and not in conflict with sec. 70.11 (8), for the board to conclude that during public hours the dining room is a public dining room whose taxability is not reduced by the presence of Eagles who get there nothing not equally available to nonmembers, while such nonmembers, in turn, get everything, available to the most eminent Eagle. For the time being the Eagles are enjoying facilities which the clubhouse offers the public for compensation and it is neither dishonest nor arbitrary nor, we think, contrary to the statute to measure and tax the facility as one so devoted to public, not fraternal, use. In like manner we regard the bowling alleys. At the times when the various leagues mentioned above are bowling, the board of review is neither dishonest nor arbitrary nor violating any clear command of the statute in recognizing that the bowlers are present not because they are Eagles but because they are league members. If they are Eagles that is incidental and immaterial in measuring the nonfraternal use of an alley, or at least the board of review may so determine and be sustained. And so it goes, with the bar and those other parts of the clubhouse which are used at times exclusively for members and at other times nonexclusively for compensation and pecuniary profit.
Appellant submits that the board of review measured the nonexempt use by the availability of part of the clubhouse for nonexempt use and that the availability standard was disapproved by this court in Trustees of Clinton Lodge v. Rock County (1937), 224 Wis. 168, 272 N.W. 5. That case differs radically upon its facts from the present one. The Lodge owned a building whose ground floor was occupied by a store and whose upper floor was used for fraternal purposes. The store tenant moved out. Shelving and other fixtures suitable for business remained in the premises and the Lodge held that portion of the building ready and available for a new tenant when one should be found. None was immediately forthcoming and in the interim the Lodge used the space for a game room to which none but members were admitted. We held that the availability of the ground floor for nonexempt use did not render it taxable while the actual use was fraternal. In the case at bar there was both availability of club property for public use plus use by the public; an offer to and an acceptance by the public. Appellant's argument seems to us to involve the untenable proposition that if the Clinton Lodge had set up a public barroom in the vacated store where it served all comers the exemption would continue, being diminished only by the proportion of patrons who did not belong to the Lodge. We see no conflict with the Clinton Lodge Case, supra, in a present affirmance of the action of the board of review based on the consideration that the Eagles' offer to the public followed by the public's acceptance, manifested by its use of the facilities, for the time being created the facility a public one and destroyed the entire exemption during the period of such use.
We do not intend to say that the method advocated by appellant would not be permissible under sec. 70.11 (8), Stats., nor that the board of review might not have used it in the honest belief that it provided a measurement of the extent of nonexempt use. But we also consider that the method adopted by the board is permitted by the statute and both the board's theory and its application of the theory in relation to the evidence concerning the values of the facilities and the proportion of their public and compensated use is within those limits which cannot be reached by certiorari.
Accordingly, the trial court did not err in dismissing appellant's petition and sustaining the action of the city board of review.
By the Court. — Judgment affirmed.