Second, if we were here considering an argument of the city solicitor representing tax-payers of the city that, these contracts were not in writing, the Cameron case would exactly apply. The case we are considering is whether, if the board of public works lets a contract of many thousands of dollars without advertising for bids, when it has no power to let such contract and it is expressly prohibited from so doing, the reception of the work so let by the board is a waiver of such a want of power. In the Cameron case it was a mere requirement as to evidence of the contract, fortified it is true by stringent statutory words, but nevertheless a formality, which the body who were required to enforce it, disregarded and refused to follow even at the request of the contractor. In the case at bar, the board in fact, by violating sections 2224 and 2225, abolished the one requirement of the law more important than all others, in securing economy and honesty in public works, i.e. competitive bidding, which the sections 2224 and 2225 were enacted to secure. Such want of power the contractor had notice of, and no benefit received can work an estoppel against the city in such a case. The decree for injunction will be made perpetual.

MOORE, J., concurs.

PECK, J., dissents.

Theodore Hortsman, City Solicitor, for plaintiff.
Paxton & Warrington, for defendant.

FIXTURES.

[Hamilton Probate Court.]

DAVID HYMAN, TRUSTEE, V. ANNIE M. GORDON ET AL.

179

Stills in a glycerine factory connected with the motive power of the steam engine, resting in part on a brick foundation laid in the building, and in part attached by screws to the ceiling to confine them to their proper places for use, are not fixtures, but chattel property.

GOEBEL, J.

W. J. M. Gordon purchased a tract of land upon which were a number of buildings. These buildings were united by him in on manufactory and for more than seventeen years, he carried on the business of manufacturing glycerine and other chemicals. Upon grounds outside the building, he erected in permanent brickwork his boilers and connected them by openings in the wall, with the distilling apparatus used on the inside.

This apparatus consists of stills, resting in part on a brick foundation laid in the building, and in part are attached by screws to the ceiling. These stills are in the different rooms of the manufactory, and connected, by the openings made in the walls, by steam pipes. All the stills are constructed for, and adapted to the use of the property as a manufactory of glycerine and other chemicals, and cannot be used for any other purpose.

Gordon made an assigment for the benefit of his creditors; the property being encumbered with mortgages and other liens. A controversy has arisen whether the stills are fixtures, and go with the realty or personalty.

There are many conflicting decisions as to the dividing line between realty and personalty, in cases where machinery has been fitted to mills and other buildings for use therein. Many cases hold, that if the article is attached for temporary use, with the intention of removing it, it does not lose its character as personalty; but if it is placed there for permanent improvement of the free-hold, it becomes a part of the realty. Hellawell v. Eastwood, 6 Each., 295, 312; Lancaster v. Eve., 5 C. B. N. S., 715; Crane v. Bingham, 11 N. J. Eq., 29; Walmsley v. Milne, 7 C. B. N. S., 115; Walker v. Shereman, 20 Wendell, 636; Potter v. Cromwell, 40 N. Y., 287.

The Supreme Court of Ohio in Case Manufacturing Co. v. Garven, 45 Ohio St., 289, say: "Machinery used in a factory for manufacturing purposes only attached to the building to keep them steady in their places, so that they may be more serviceable when in use, and that they may be removed without any essential injury to the freehold or the articles themselves, are personal property, and do not pass by a conveyance or mort gage of the free-hold.”

And in Teaff v. Hewitt, 1 Ohio St., 511; "Machinery and implements in a manufacturing establishment, although useful and even essential to the business carried on, which are not permanently fixed to the ground of the structure of the building, and which can easily be removed, without material injury to the building or articles themselves, and their places supplied by other articles of similar kind, are not fixtures but personal property.

Many of the authorities hold that the intention of the party or parties affixing the machinery, enters into the elements of the case, and that the permanency of the attachment and its character in law, do not depend so much upon the degree of physical force with which the thing is attached, or the manner and importance of its attachment, as upon the motives and the intentions of the party attaching it.

If the intention is that the articles attached should not, by annexation, become a part of the freehold, as a general rule, they do not, the exception being, that when the property can not be removed without practically destroying it or when it, or part of it is essential to the sup port of that to which it is attached. Ford v. Cobb, 20 N. Y., 344; Tifft v. Horton, 53 N. Y., 377; Vorhees v. McGinnis, 48 N. Y., 278; Winslow v. Merchants Ins. Bank, 4 Met., 306; Crane v. Bingham, 11 N. J. Eq.. 29; McRea v. Central Nat. Bank of Troy, 66 N. Y., 489; Sisson v. Hibbard, 75 N. Y., 542; Eaves v. Estey, 10 Kansas, 314; Trull v. Fullet, 28 Me., 548; Ballow v. Jones, 37 Ill., 95; Wade v. Johnson, 25 Georgia. 331; Hill v. Wentworth, 28 Vt., 428. There seems to be no longer any doubt that the character of the property may be changed by the agree ment of the parties as between themselves.

In the case before us, there is nothing about the stills that prevented their removal and use in another building for the same purpose. The fact that the stills are adopted to no other use, and, if detached from the building, render the balance remaining useless, and the parts detached have no saleable value except as old metal, and that that probably will destroy the use desired to be made of the real estate, cuts no particular figure in this case.

There can be no doubt that the stills are susceptible of removal and of use elsewhere. The fact that the stills were beneficial and necessary to the use of the factory, does not of necessity, stamp it as realty.

179

Hyman, Trustee, v. Gordon, et al.

Recognizing the difficulty of prescribing a rule that may be applied to cases in general, and knowing no test that may be applied with anything like uniformity, we think however, that this case comes within the ruling in Teaff v. Hewitt and Case Mfg. Co. v. Garven, and we hold that the stills are not fixtures.

Follett, Hyman & Kelley, for assignee.

Lincoln, Stephens & Lincoln, Bateman & Harper, for mortgagees.

TAXATION.

[Hamilton Common Pleas.]

180

CHURCH OF THE EPIPHANY V. FRED. RAINE, AUDItor et al. Rev. Stat. sec. 2732 exempts from taxation a house used exclusively for public worship and the grounds attached to it, necessary for its proper occupancy, use and enjoyment, and not leased or otherwise used with a view to profit; and it forms no exception that the same belongs to the worshipers as an estate of perpetual leasehold—that is, by a lease for ninety-nine years and renewable forever. SHRODER, J. (orally).

In the case of Church of the Epiphany v. Raine the plaintiff seeks to restrain the auditor from placing upon the tax duplicate its property for the purpose of taxation, and it alleges in support of its claim that it is exempt from taxation inasmuch as it is the owner of a perpetual leasehold--being for ninety-nine years and renewable forever; that the property in question is a house used exclusively for public worship; and that the grounds around it and attached to the house are necessary for the proper occupancy and use and enjoyment of the same.

The demurrer to the petition rests upon the decision of the Supreme Court in the case of Humphreys v. The Little Sisters of the Poor, wherein the Supreme Court held that the property of the plaintiffs in that case was not exempt because "The Little Sisters of the Poor" were not the owners of the building. The claim in that case was founded upon the sixth paragraph or subdivision of section 2732 of the Revised Statutes, which provides that:

"All buildings belonging to institutions of purely public charity, together with the land actually occupied by such institutions, not leased or otherwise used with a view to profit, and all moneys and credits appropriated solely to sustaining, and belonging exclusively to such institutions" were to be exempt from taxation. The Supreme Court there considered the word "belonging" to mean "being owned by," not in the sense of "pertaining," and the reason given for it was that the same meaning was to be given to the word "belonging" in the first member of the sentence of "buildings belonging to institutions of public charity." as given to the word "belonging" in the second member of the subdivision, which says, "all moneys and credits appropriated solely to sustaining, and belonging exclusively to such institutions;" and inasmuch as the meaning of the word "belonging" in the latter part of that subdivi sion necessarily is that of ownership, the Supreme Court concluded that the same meaning must be attached to the same word in the first member 4 LB 29

of that subdivision. That was the reason given, and that was the ground upon which that decision rests.

It is clearly seen that this subdivision and this reasoning can throw no light upon the construction to be given to that portion of sec. 2732 which is now invoked by the plaintiff in support of its claim.

It is also argued that inasmuch as institutions of purely public charity are not exempt unless the buildings and property are owned by them, a charity of this kind is of equal sanctity and character to that of public worship, and therefore in the reason of things it was not intended by the legislature to exempt property used for public worship unless it was owned by the parties, by the institution or by the church that was occuping the house for that purpose.

In construing statutes, the plain and ordinary meaning is to be given to the words used, unless the context or the law itself attaches to the words a different meaning. In this case, sec. 2732 begins by saying:

"The following property shall be exempt from taxation:

"First, all public school-houses and houses used exclusively for public worship, the books and furniture therein, and the grounds attached to such buildings necessary for the proper occupancy, use and enjoyment of the same, and not leased or otherwise used with a view to profit."

The plain and ordinary meaning of the phrase, "houses used exclusively for public worship," cannot be otherwise expressed than it is in the statute, it means houses that are so used. Is there any inference to be drawn from the context of this statute, the whole sec, 2732, that it was intended thereby to make a further condition; that it must be owned as well as used? Now, an examination of this sec. 2732 will disclose that in its discretion the legislature classified property under three heads: Property exempt by reason of its user; property exempt by reason of its ownership; property exempt because it is used by its owner. Under the first heading we find public schoolhouses and houses used exclusively for public worship, cemeteries, land used exclusively for graveyards or grounds for burying the dead, except where they are owned for purposes and with a view to profit, colleges and seminaries, and monuments to the fallen soldiers of this state, and moneys and funds accumulated for the purpose of building such monuments; and in the second class, i. e., the class exempt because of their ownership, we find property belonging exclusively to the state or to the United States; in the third class-property that is to be used by the owner, which is owned and used- we find property belonging to counties, townships and towns, to institutions of purely public charity, to fire companies, to water works.

If it were necessary in a case where words are plain to ascertain the meaning by trying to get at the motive or the reason of the legislature, probably we could ascertain it in this case by noticing that where they make the user the ground of a condition for exemption, it is of that class of property which is least likely to be used in such a manner that a deception conld be practiced upon the tax gatherers. A house of worship used as such, can hardly be used for anything else can have no appearance of being used for public worship connected with any other kind of occupancy. The same can be said of schoolhouses, colleges and seminaries, graveyards, cemeteries-the same of soldiers' monuments.

We come to the second class, where the ownership is the condition of the exemption. Property belonging to the state exclusively is exempt for obvious reasons; property belonging to the United States government

180

Church of the Epiphany v. Raine, Auditor, et al.

is probably exempt because of constitutional reasons. McCullough v. State of Maryland would be decisive in a case of that sort.

We come to the other class, especially that nearest to houses of public worship, institutions of purely public charity. There can be all kinds of institutions of charity; and great numbers are established for all kinds of purposes, and yet are considered and apparently are for the purposes of public charity, and occupy places and buildings that are not exclusively held by them for these purposes. They can do their business and conduct their affairs in buildings of all sorts; and probably the same might be said of water works institutions and fire companies, and that might be the reason that the legislature made that condition, that it must be owned exclusively by the parties or persons who are using for these purposes.

Now, in the case at bar the property is a perpetual leasehold. In the case of The Cincinnati College v. Yeatman, 30 Ohio St., 276, the Supreme Court held that a perpetual lease was a separate subject of taxation as real estate, although, as in that case, the estate was separated from others with which it was united not by vertical lines but by horizontal.

If it were necessary to go further, sec. 2897 provides :

"Where lands or lots liable to taxation are held upon permanent lease, and with the improvements thereon are taxed in the name of the lessee, if the same are suffered to become delinquent, and are brought to sale by the county auditor for the non-payment of the tax, interest and penalty due thereon, such sale shall be confined to the right of the lessee on the premises and the improvements thereon, if the same shall be sufficient to meet the tax," etc.

We have here a legislative as well as a judicial recognition of the validity regarding a perpetual leasehold as a subject for taxation.

In the case at bar, the church is the owner of a perpetual leasehold. It is a subject for taxation unless it is exempt. Being a separate subject of taxation, separate from the tee, liable to be sold as such, it would be held as such unless exempt. There is no reason why it should not be put in the same situation as if the church were the owner of the fee.

Now, in addition to that, it might be said that it is the policy of this state to recognize perpetual leaseholds, put them in the light of a feesimple, for perpetual leaseholds descend as fee simples do; they are sold on execution in the same way, and the statute provides that the deeds of conveyance of them are to be within the same formal requirements as deeds of fee simple estates.

Taking all these things into consideration, I do not see anything in the statues, nor in the decisions, which would warrant the court in attaching to this phrase, "houses used exclusively for public worship," any other meaning than it would ordinarily bear, and the ordinary meaning is, that it should be so used with no other condition.

In this case it is exclusively used as a place of public worship, and for that reason it is exempt under the statute. The demurrer will be overruled, and unless the defendant desires to answer further, the injunction will be made perpetual.

Ferris, Morrow & Oldham, for plaintiff.

Davidson & Hertenstein, County Solicitors, for defendant.