#### In re Estate of Taylor: American Bible Society, Appellant, *v.*Department of Taxation of Ohio, Appellee.

(No. 28778

Decided March 25, 1942.)

*418*Messrs. Niman & Buss,*for appellant.

*Mr. Thomas J. Herbert,*attorney general, *Mr. Perry L. Graham*and *Mr. W. H. Middleton, Jr.,*for appellee.

Turner, J.

Appellant, in seeking a reversal of the *419judgments of the lower courts, propounds two questions :

First, is it (appellant) an institution of learning?

Second, is it an institution for purposes only of public charity?

Section 5334, General Code, provides iirpart:

> “The succession to any property passing to or for the use of the state of Ohio, or to or for the use of a municipal corporation or other political subdivision thereof for exclusively public purposes, or public institutions of learning within the state, or institution of learning within any state of the United States which state does not impose an inheritance, estate or transfer tax on property given, devised or bequeathed by a resident thereof to an institution of learning within this state, or to or for the use of an institution for purposes only of public charity, carried on in whole or in substantial part within this state, shall not be subject to the provisions of the preceding sections of this subdivision [Sections 5331 to 5348-16, General Code] of this chapter.”

It is admitted that appellant gives no formal instruction. In direct examination, Mr. Bruce G. Cameron, in charge of appellant’s Ohio office, testified: “We are unfortunate in the sense that we do no teaching at all.”

However, it is claimed that the term “institution of learning” is broad enough to include a society whose declared purpose is publishing and promoting a general circulation of the Holy Scriptures without note or comment. With this claim we cannot agree.

The sole object of appellant under its constitution is to encourage a wider circulation of the Holy Scriptures without note or comment.

An institution of learning connotes a teaching staff and students. As stated by the trial court in its opinion:

> “The idea which the phrase ‘institutions of learning,’ brings to mind is an institution composed of a *420group of learned men and women associated together for the purpose of instructing another group of persons, usually young men and women, in the accumulated knowledge, skill and wisdom of mankind. An institution of learning must at least embrace the idea of someone, possessed of knowledge and skill, capable of and in a position to impart such knowledge and skill to others in position to and capable of learning them. An institution whose sole purpose is to publish books and distribute them does not seem to be in any sense of the term, an institution of learning. ’ ’

It remains then to determine whether appellant is an institution for purposes *only*of *public*charity.

Whether appellant is a charitable institution is not controlling. The question here is whether it is an institution for purposes *only*of *public*charity. While it may circulate its Bibles freely, yet it is circulating the King James Version thereof, which is used only by a part of the people. It is argued that these Bibles are furnished to persons irrespective of creed. Granting this, the appellant then is engaged in the propagation of a branch of the Christian religion.

Appellant’s exhibit 19 quotes Article I of its constitution, as follows:

> “This society shall be known by the name of the American Bible Society, of which the sole object shall be to encourage a wider circulation of the Holy Scriptures without note or comment. The only copies in the English language, to be circulated by the society, shall be of the version set forth in 1611, and commonly known as the King James Version, whether in its original form as published in the aforesaid year or as revised, the New Testament in 1881 and the Old Testament in 1885, and published in these years under the supervision of the Committee of Revision, or as further revised and edited by the American Committee of Revision and printed under its supervision in 1901.”

This distinction would be readily apparent if appel*421lant’s purpose was the publication and circulation of the Koran or the teachings of Buddha or Confucius. Yet our Constitution (Section 7, Article I) declares that all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience and that no preference shall be given by law to any religious society. While recognizing that religion, morality and knowledge are essential to good government, the Constitution makes it the duty of the General Assembly to protect every religious denomination in the peaceable enjoyment of its own mode of public worship.

It is argued that Section 5334, General Code, was amended several years after the decision of this court in *Humphreys, Exr.,*v. *State,*70 Ohio St., 67, 70 N. E., 957, 101 Am. St. Rep., 888, 65 L. R. A., 776, so as to include appellant. In the course of the opinion in that case, Judge Price said, at page 77:

> “ * * * and it may be admitted that theirs are works of charity in the broad sense, that the uplifting of men, women and children to the standard of life taught in the Scriptures is indeed a work of charity, the greatest of the three Christian graces.” But Judge Price did not say that such works were *public*charity *only.*

Under the phraseology of the amendment, it cannot be assumed (if otherwise it could be) that it was the legislative intention to include appellant as an exempt institution.

To hold that appellant is an institution for purposes *only*of *public*charity would require a doubtful construction of Section 5334, General Code. While exemption laws have long been recognized under our Constitution and statutes, yet they have always required strict construction. Or, to put it in the broadest terms recognized by this court, there is no presumption of, exemption from taxation irrespective of the character of the institution.

*422While it is said in 38 Ohio Jurisprudence, 854, that “the rule of strict construction has been somewhat modified in the case of exemptions of religious, charitable, and educational institutions, it having been declared that, as to such institutions, the policy and spirit of the law should be considered in determining the legislative intent,” such statement of declaration is based largely upon the statement of a single judge of this court in the course of the opinion in the case of *Watterson*v. *Halliday, Aud.,*77 Ohio St., 150, 82 N. E., 962, 11 Ann. Cas., 1096, where, at page 169, Judge Price said: “And while we do not apply strict rules of construction in cases where religious, charitable and educational institutions seek exemptions, we think such right to exemption should appear in the language of the Constitution or statute, with reasonable certainty, and not depend on their doubtful construction.” But at page 170, Judge Price also said: “There is no presumption of exemption from taxation because the institution claiming it is of a religious or charitable nature, for it is perfectly competent for such institutions to own property clearly subject to taxation.”

It is to be noted, too, that in the case of *Watterson*v. *Holliday, Aud.,*no exemption was recognized.

It would take up much space and would not be helpful to attempt to discuss all of the cases in this state applicable to the question of exemptions from taxation. Suffice it to mention one of the earliest and several of the latest cases decided by this court.

In the case of *Cincinnati College*v. *State,*19 Ohio, 110, 115, it was said: “All laws that exempt any of the property of the community from taxation should receive a strict construction. All such laws are in derogation of equal rights.”

In the case of *Tax Commission*v. *Paxson, Admr.,*118 Ohio St., 36, 160 N. E., 468, Judge Allen said, at page 41:

> “There is no presumption of exemption from taxa*423tion because the institution claiming it is of a religious or charitable nature, for it is perfectly competent for such institutions to own property clearly subject to taxation. This was the basis of the holding in *State, ex rel. Boss,*v. *Hess, Auditor,*113 Ohio St., 52, 148 N. E., 347.”

In -the case of *Cullitan, Pros. Atty.,*v. *Cunningham Sanitarium,*134 Ohio St., 99, 16 N. E. (2d), 205, it was held: “There is no presumption favorable to the exemption of property from taxation. An exemption from taxation must be clearly and expressly stated in the statute and must be such only as is authorized by the Constitution. ’ ’ In the course of the opinion, Judge Matthias said, at page 100: “There is no presumption favorable to exemption from taxation. On the contrary, the right to such exemption must be shown 'indubitably to exist.’ *Lee, Treas.,*v. *Sturges,*46 Ohio St., 153, 19 N. E., 560, 2 L. R. A., 556; *Benjamin Rose Institute*v. *Myers, Treas.,*92 Ohio St., 252, 110 N. E., 924, L. R. A. 1916D, 1170. Moreover, the exemption from taxation must be clearly and expressly stated in the statute and must be such only as is authorized by the Constitution. *Wilson, Aud.,*v. *Licking Aerie,*104 Ohio St., 137, 135 N. E., 545; *State, ex rel. Boss,*v. *Hess, Auditor,*113 Ohio St., 52, 148 N. E., 347.”

The fact that the Tax Commission, as the administrative body, the trial court and all of the judges of the Court of Appeals, as well as a majority of the members of this court, have been unable to find that appellant comes within the terms of Section 5334, Q-eneral Code, should tend at least to demonstrate that the exemption from taxation claimed in the instant case depends upon a doubtful construction of the law.

There being no reasonable certainty of the statutory exemption and no presumption of exemption from taxation because the institution claiming it is of a re*424ligious or charitable nature, the judgment of the Court of Appeals should be, and is, affirmed.

*Judgment affirmed.*

Weygandt, C. J., Matthias and Bettman, JJ., concur.

Williams, Hart and Zimmerman, JJ., concur in the syllabus but dissent from the judgment.

Hart, J.,

dissenting. The American Bible Society for over a century has been engaged in printing, publishing and distributing the King James Version of the Holy Bible without word or comment. It is a corporation not for profit, engaged in the distribution of Bibles free to those who are unable to pay for them, and at cost to those who are able to buy them. The society is financed by gifts of the people and no profits are distributed to anyone. In the past 30 years it has expended over $275,000 in Ohio, and over $9,000,000 in the United States in carrying on this work. It engages in no commercial business, and, without respect to race, creed or religion, makes distribution of its Bibles on equal terms to all members of the public who will accept them.

I agree with the majority that the society is not a “public institution of learning.” The only other question before the court is whether, under the statute, it is “an institution for purposes only of *public*charity.” Its objective is to promote the spiritual welfare of the people by the diffusion of the Holy Scriptures. In so doing, it administers to people of all religions. Portions, if not all of these scriptures, are acceptable to the adherents of the Jewish and Christian religions, the latter being represented by the Catholic and Protestant faiths. These are recognized as the prevailing forms of religion in this country. Because of the uplifting effect of religion, the government is interested *425in its promotion in the broadest non-sectarian sense. This is substantiated by a declaration in one of the foundation charters of our state government. Article III of the Ordinance of 1787, for the organization of the Northwest Territory, in part reads:

> “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. ’ ’

It is not denied in the majority opinion of this court that the distribution of Bibles by the American Bible Society constitutes a charity, but it is claimed that such distribution is not a *public*charity because the Bibles are used “only by a part of the people,” and, therefore, the distribution constitutes the “propagation of a branch of the Christian religion. ’ ’ In my view, this definition of a “public” charity is too narrow, and certainly is not supported by the decisions of other courts.

In giving the definition of *public charity,*as summarized from the leading eases in this country, 10 American Jurisprudence, 588, Section 5, says:

“A *public charity*is one in which there is a benefit to be conferred on the public at large, or some portion thereof, or upon an indefinite class of persons. * * * The essential elements of a *public charity*are that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite, unrestricted quality that gives it its public character. * * ***A charity may restrict its admissions to a class of humanity and still be public. It may be for the blind, for the mute, for those suffering under special diseases, for the -aged, for infants, for women, for men, or for different callings or trades by which humanity earns its bread, and as long as the classification is determined by some distinction which involuntarily affects or *may*affect *any*of the *whole*people, although *only a small number may be directly benefited,*it is public.” (Italics mine.) See, *426also, *Newton*v. *Newton Burial Co.,*326 Mo., 901, 908, 34 S. W. (2d), 118; *Donohugh’s Appeal,*86 Pa., 306, 318; *City of Bangor*v. *Rising Virtue Lodge No. 10, F. & A. M.,*73 Me., 428, 434; *People, ex rel. Carr,*v. *Alpha Pi of Phi Kappa Sigma Educational Assn. of University of Chicago,*326 Ill., 573, 577, 158 N. E., 213; *People*v. *Y. M. C. A. of Chicago,*365 Ill., 118, 6 N. E. (2d), 166.

To illustrate, many college and school textbooks adopt the Darwinian theory of evolution to explain the origin of man and for that reason such textbooks are not acceptable to those who hold the view of the fundamentalist who accepts only the literal Biblical account of man’s creation. But, it would certainly not be contended that any institution engaged exclusively in the gratuitous distribution of such textbooks to all those who will accept them, is not a charitable institution engaged in *public*charity.

In the case of *Humphreys, Exr.,*v. *State,*70 Ohio St., 67, 70 N. E., 957, this court had under consideration the taxation of a bequest to this same American Bible Society. The exemption of the bequest from taxation was denied under the statute then in force, not because the American Bible Society was not an institution engaged in public charity, but because it was not an institution wholly within this state, a situation not now required under the present form of our statute. Judge Price, speaking for this court in that case, as already quoted in the majority opinion, and as stated in the further course of his opinion indicated that the American Bible Society was engaged in the work of public charity, but denied the exemption on the sole ground that it was, as then organized, not an “institution of said state” of Ohio.

The work and functions of the American Bible Society are the same now as when Judge Price made his pronouncement. Since that day, the barrier to exemption from taxation of gifts to the society has been re*427moved by amendment of the statute, and, in my judgment, the society is clearly entitled to the exemption from taxation, which it now seeks on the legacy under consideration.

Zimmerman, J.,

concurs in the syllabus but dissents

from the judgment for the reason that in his opinion the appellant answers the description of “an institution for purposes only of public charity” within the meaning and intent of Section 5334," General Code, and is therefore exempt from the payment of the Ohio inheritance tax on the testamentary gift made to it.