               OFFICE   OF THE    A’ITORNEY   GENERAL        OF TEXAS
                                     AUSTIN




monble         ilarid J. Uorrie
Ooanty    Attorney
Brown    county
Browmood,       Texas

Dew     Elrz




                                                             ounwoodM66iorial




                                                        pXWQ6rt37 i6 WMIQt,
                                                        axes elraady paid


               W6 have r                            idered    )roW     r6c;U66t     iOr
                                                 ther aartaiu propsrQ
                                              OSPit&., InO., 16 OS8Bipt


                                              15,   1943,      there    am    6et
                                        of the oorporatioa slhawlng ft
                                         not orgenlzed lor profit, end
                                                    for odditionel in-
                                    law--r dated 2:'ay15, 1943, a portion


             The proparty inquired about is ueed 6xolu6~ve~y by
        The Rwwnwooa Mentorial Ho6pltal.

             "The Institution O-8 not rent orrio      to dootore
        or to any other organl6etior, antI has no inoome of any
        type rr0ik e-3 propeFt7, other then yatlents who are abl6
        to pay.
 mnorable        David J. Morris, page 2



             The  property inquir6d  about i6 the property upon
        whioh thaw ho6pitaL building Is looated. and no ot&r
        property is in gu~stlon. The hospital plant ant gmundr
        is   th6    prOpWty      ill qU66tiOn.

              *No one recsivse aay profit from the operation
        of the i3rownwood 3emorial &6pltaA.   The doctor's oon-
        neoted therewith draw nothing from the hospital, and
        have never reoelved any oompeneatlon thererrom, and
        there has never been any dividend or any kind deolarsd;
        and no-one expeots to draw Or reoeivn anything from the
        operation of the bo6pitaI.w


             You have etated that the property Inquired about ia
666d eroIu6lre~y by the oorporatloQ. 'u6 thsrerore essum6 that
th6 doOtOr6 oonneoted with the in6titUtiOn    814 not assigned
Off1066 in the building, where they oonduot their private prao-
tlo6 rbnt rree, in return ror 6erviose rendered. The requir6-
mnt   of exolualve  uaa is not 6nti.9flnd in suah A case, even
though  those sharing the U66 pay Qo rent. Redp Johnson, 53 Tax.
288; City or Longview Y. marlchzun-XaReeZdemorlal Rospltal, 137
Tax. 198,   152 8. W. (Sd) 1112. We also further 888111114that
th6 aotual operation of the institution la in accordance with
it6   OharteX’     pSOViSiOn6.

            lWo questions   ray be raieed  as to the charitable
nature of the lnstltution oonoerned hrr6: First, can an
inrtitutlon   be one of chtrrlty when its lnoorporators are
dootore, who apparently a6 a group may minister to the slok to
the exolu6lon ol’ other r^ootore?    3eoond, oan the institution ba
drolared aharitable    if upon dl66olutlon the 4ootor6 oonoorned are
to reoeivo   its aesota?

           The charters of the &enta:Rnaa Inrlrmarg and of the
inrtltution oonosrned here are almoat ldcntloal, and these very
qU66tfon6 ware raised by the Court of Civil Appeals in City Or
San &ton10 v. ;liantaRosa Infirmary, S4S 6. W. 498, at Dss,s 336.
The latermedl~te court ~(29 reversed upon appeal, ;janta %oea
Infirmary v. City of tian ialtcnlo, SS9 S. Vi. Q&I, In a decision by
the Commission of J~pj~3d.S   abated by tha Supreme Court. It wan
apparent from t.rie charter of the Santa Rosa InflrsWy that oluy
the Sister6 Of Ch&UTity    Of th3 Incarnate bard could administer to
the Bick, etc.,  and we we unable to distin&ah       such e situation
 anopable     Dar id J. :Zorriu, Fage 3


 from the one presented here. tie therefore believe that the                        Jupremae
 Court has by its deoiaion overruled I& firat objeotion.

           Relative to the seoond objeation noted above, we find the
following: language used by the Commission of Appeals at pwge 935~

            “The oorporetians here were not organized for profit..
      They have no capital stocir--no private or oorporbte gain
      can aoorue.     By their Very inoorporation for purely oharithbie
      and benevolent purposes they hava made a oontmot         with tfie
      state and with t.e beneficiaries named in the charters
      effeotually    constituting    those in ohergo of ;t.heenterprise
      trustees    of an exprees   trust,  nnd their charters in thoir
      last analysis and in their legal effeat become dsolaratione
      of truet.     It would serve no useful purgeee to quote from
      the numerousauthorities sustaining this view, but the
      follueing are aited: mer. .& Sng. haoy. of Law (28 Ed.) 898;
      Linton v. Brown’s kdm'ra (C.C .) 2C Fed 456; 2 Uoravetz on
      Corporations ilO46; 1 Perry on Truete (6th Ed.)1 82.

           “By ertiole   1136 of the hevised Litcrtutes any renewal
      of their corporate existenoe must ccatlnue    the purposes
      originally stated.

            viny benericiary   of the t&u& areated by the ohartera
      oould prevent, and BD might well the representatives of the
      state government enjoin, a use or appropriation of the trust
      e#tstem of tiW corporations for purposes of private gafn or
      those inconsistent with their oharter provlsioniv. Cook on
      Corporations, vol. 2j 492~ Dazrtmuth College v. i?oodward,
      $zheat.   518, 4 L. id. 629 ; 2 Perry on Trusts (6th Ed.) j1 732-
          ; “ttyiaaI    ii Garrison et al., 101 ;dtrss.233; Parker,
      eta.; v.             ., 5 Gush. (Mass.) 336.’

           In view of the above language, 1 t would seem that the
public and the &ate of Texas are well proteoted from a dissolution
Of a obaritable aoryoration which might redound to the banef it of
its incorporators and members.

           Upon the fact6 presented, we           hold the real estate belons-
ing to The arowmvood Memorial hospital,           Inc., tax exempt. It
should be understood, however, that the           presenoe of new facto or
wditi3ni3 arising i;i the future, might           chzzge Its exempt status.

              However,  ti differtint   aituation    exists    iifth   respect        to
Personal    2roperty beloqing       to the institution.        krtlele      VIII,
Yaatlon    i, of our Constitution      only permits     the   Leglelatare        to
honorable David J.      xorria,     Pww    4




exe t "inatitutioaa of gu1.1~ publio oharity*. This portion of
tu T onmtitutlon is not aelf-enacting,      and siaae &ticlo 7150(T)
V.       j., only    exempts  the bulldiaga  and @rounda ooaupied by
a,",itL    156tltat2onB,     it is our opinion the personal pmperty
ia liable  for   faxen.     See   Davis   v.   Santa   hors   Ufirmary,      (Clv.App)
gg 6. iI. 185.

              be next consider tb         refund oi real e&ate            taxea by
the rerloub    taxing   cruthor~tiae.      In thla conueetion,        you    mike t&
following ltaremnt:

            "The oorpor.atlon Aid not reader ita real lrtatr
      for tha [year 1042,  but had been paying the taxes Oy
      the month to (L lonn company atwryiag a previous   loan,
      and this loan company   beiore February 1, 1914%. paid
      to thm varlour   taxing unite of Brownwood and 3rown County
      taxeu aaseaoed againot property of The Brownwood &aorlal
      hospital Inc. on the untendrred rolls."


           ihether the lam oompany be regarded as baring geld
 the taxes ?a ageat of the in8tltution, or under the powexr
 &ren it by oontract, the result ir that the taxe8 were pvid
 v01nataP11y. The sitatake mede wa8 e8 to taf liability, which
 1s a mletakce of law. Turma gaid voiuatarfly through mistake
 of law are not recoverable.   Nntloaal tiisoult Co. v. State,
 134 Tex. 2c13133 S. A. (2A) SSI; kuetln Nation&l   &alr 0.
 Sheppard, 123 Tmx. 272, 71 &. L. (8d) 24:; Gttf ol Houston v.
 yei?.er,76 TexL. 963, 13 2. %. 255; Frost v. Fowierton Conmolidated
 School tiiet. go. 1, (Civ. :;pp) 111 J. P. (2di 754.

              Although the Cuestim         of tax      liability ia one Of law,
 if there has hen       ELml&eke      OS fact in couneotloa with the pey-
 aunt or theme taxeo, we belteve the institution etill not en-
 titled to a refund.    In this State, the burden 18 upon one
 clainiw exeqtlon from taxation to show himself clearly within
 the statutory  or constitutional   exexegtion. ?b~Gallum V. keao-
 Cl&ted tietail Credit *ien of iiuetinl (CO&U. ngp.) 41 5-i.. (26)
 45; ii. P. 0. C. &Age   v, i:lt.yof llcuston, 44 3. +. (8A) 4593,
nit   of error refueed;  Trinity   Methodlet lipfsoopal Churoh v.
city of San AntonlO, 201 S. W. 669, writ of error refdaed.
~0 offioere of the aorporalion knew ~$11 the facts establishing
itr rights to-the tax eremptlon. ID our opinion, their negli-
Genoa  In not Drlnging these raote to the attention of the taxing
authorities, and in not olal,ing the exemption,       bars tba insti-
tution froa recovering   the taxes   ?aid even though    they IWAY have
wen   paid under mistake  of fact.    See City of  Nouaton   v. Felmr,
supra.
          Vie truet the above euffioiently    anmwerr you.? request.




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