#### Beerman Foundation, Inc., Appellant, *v.*Board of Tax Appeals et al., Appellees.

(No. 31772

Decided July 20, 1949.)

*180
      *Mr. Jerome Goldman,*for appellant.

*Mr. Herbert S. Duffy,*attorney general, *Mr. William C. Bryant, Mr. Donald B. Leach*and *Mr. Mathias Heck.,*prosecuting attorney, for appellees.

By the Court.

The eight apartments are rented to disabled veterans of World War II, four with their Avives and the four others with their Avives and children. The rentals are $28 per month for the four-room apartments and $35 per month for the five-room apartments. Rentals higher than $75 per month could easily have been obtained for any of the apartments in the general market, according to a statement in the application for exemption. All the veterans receive pensions, all are employed in or about the city of Dayton and no veteran is housed rent free.

Counsel for the applicant states the issue: Is property which is leased to disabled veterans as living quarters below cost or at a loss, in order to subsidize and help maintain them because of their impaired earning poAver, used exclusively for charitable purposes?

The entry of the Board of Tax Appeals in the present case states:

> “All eight of. these veteran tenants pay rent. None are housed free of costs. If applicant’s space were not available these eight tenants would presumably have to find less desirable quarters within their means. Is *181applicant’s philanthropy in foregoing profit the criterion? If this be true, then it must be well known that many property owners have been required for a number of years to furnish living quarters to tenants at a figure below a profit basis. Surely this enforced-like charity does not entitle such a property owner to exemption of his property from taxation. ’ ’

The entry states also:

> “These veterans’ apartments are their private homes. Applicant says that it charges these veterans some rent to avoid the semblance of charity, yet it here confidently asserts that its purpose and use of its property is exclusively charitable. These positions are hardly consistent. Taxation is the rule and exemption the exception. Every property removed from the tax duplicate increases the tax burden on other property. If applicant desires to dispense a charity it ought to do so without enforced contribution from other taxpayers. The Board of Tax Appeals cannot find that applicant has shown a clear right to tax exemption. * * *”

Section 2, Article XII of the Constitution, reads in-part: “* * * general laws may be passed to exempt # * institutions *used exclusively for charitable purposes** * (Italics supplied.)

Section 5353, General Code, enacted pursuant to-that authorization, provides that “real and tangible-personal property belonging to institutions *used exclusively for charitable purposes,*shall be exempt from taxation.” (Italics supplied.)

The basis for exemption is the *use*of the property. See *Youngstown Metropolitan Housing Authority*v. *Evatt, Tax Commr.,*143 Ohio St,. 268, 280, 55 N. E. (2d), 122, and cases cited. The present case does not present the commercial aspect appearing in that case. On the other hand, no living quarters are furnished *182free to any of the veterans occupying these apartments and it is not claimed that the occupants are objects of charity.

The facts in the present case are similar to those in *Cleveland Branch of the Guild of St. Barnabas for Nurses*v. *Board of Tax Appeals,*150 Ohio St., 484, 83 N. E. (2d), 229. In that case the applicant for exemption was organized for charitable purposes, the property was acquired through contributions and a mortgage, no profit was involved, the building was operated for low-rent housing and no charity occupants or indigents were accommodated.

We agree with counsel for applicant in the instant case that housing for the needy, aged, sick, orphans or widows is charity entitling the property so used to be exempted from taxation. However, we are of opinion that such housing would not be used exclusively for charitable purposes if each and every occupant was required to pay for accommodations.

The use of the property in the instant case is primarily for furnishing low-rent housing and not exclusively for charitable purposes.

The decision of the Board of Tax Appeals is neither unlawful nor unreasonable and is, therefore, affirmed.

*Decision affirmed.*

Weygandt, C. J., Matthias, Hart, Zimmerman and Turner, JJ., concur.

Taft, J.,

dissenting. While conceding that no commercial aspect appears in the instant case, the majority opinion emphasizes that “no living quarters are furnished free to any of the veterans occupying these apartments.” It is said that housing for the needy, aged, sick, orphans or widows, while normally charity, *183“would not be used exclusively for charitable purposes if each and every occupant was required to pay for accommodations. ’ ’

Apparently, the majority has in mind cases such as *O’Brien, Treas.,*v. *Physicians Hospital Assn.,*96 Ohio St., 1, 116 N. E., 975, L. R. A. 1917F, 741, and *College Preparatory School for Girls*v. *Evatt, Tax Commr.,*144 Ohio St., 408, 59 N. E. (2d), 142. If, as indicated by those decisions, payment in full for services received by use of property does not prevent considering that use as exclusively for charitable purposes where some parties receive services free and no one makes a profit, it would seem to follow that the payments in the instant ease would not prevent such consideration. Those payments are admittedly less than the value received and no one makes any profit from the use of the premises. Furthermore, in the instant case, all who benefit from the use of the property are proper objects of charity unlike the situation in the *College Preparatory School case.*

Our modern concept of what is or is not a charitable purpose is based upon the enumeration of charitable purposes in the preamble of the Statute of Elizabeth, 43 Elizabeth, Chapter 4, commonly known as the Statute of Charitable Uses adopted by Parliament in 1601. One of the charitable purposes therein enumerated was the “maintenance of sick and maimed soldiers and mariners.”

As stated by Ranney, J., in the court’s opinion in *Landis et al., Exrs.,*v. *Wooden,*1 Ohio St., 160, 164, 59 Am. Dec., 615:

> “That statute has been construed with almost extravagant liberality, and it is not doubted that this case would fall within its provisions; but inasmuch as that statute is not in force here, it is hence inferred that our courts are invested with no such power. This *184•consequence by no means follows. On the contrary, many of its principles have been long since incorporated into American jurisprudence, and enforced by the decisions of the highest and most enlightened ■courts. ’ ’

For similar statements with regard to this statute see *Miller*v. *Teachout,*24 Ohio St., 525, and *Palmer*v. *Oiler, Exrx.,*102 Ohio St., 271, 272, 131 N. E., 362.

The majority also states that since the use of the property in the instant case “is primarily for furnishing low-rent housing,” the property is not used •exclusively for charitable purposes. However, if we assume that furnishing low-cost housing for members of the general public is not a charitable purpose even where there is no commercial aspect (probably on the ground that assistance to such persons might not be charity), it would not follow that furnishing such housing without profit to disabled veterans would not be a charitable purpose.

In the case of *Cleveland Branch of the Guild of St. Barnabas for Nurses*v. *Board of Tax Appeals,*150 Ohio St., 484, 83 N. E. (2d), 229, cited by the majority, there was no showing that the nurses who were benefited were proper objects of charity.

In 2 Restatement of Trusts, 1140, Section 368, it is •stated that charitable purposes include certain specific purposes and “other purposes, the accomplishment of which is beneficial to the community.” In my •opinion the furnishing of low-cost housing to disabled veterans is a purpose “the accomplishment of which is beneficial to the community. ’ ’ It was so recognized in the Statute of Elizabeth enacted over 340 years ago and the charitable purposes enumerated in that statute have received the approval of this court over a long period of years.

Stewart, J., concurs in the foregoing dissenting opinion.