The suit is brought by the city of Dallas for taxes claimed to be due for the year 1911 by appellee Cochran, as owner of certain real estate located in the city of Dallas, and to foreclose a tax lien. The United States Bond & Mortgage Company, Incorporated, was made a party defendant, upon the ground that such company held a mortgage lien on the premises, and a foreclosure of the tax lien as against it was prayed for. The property in suit, described by metes and bounds, is 100 by 90 feet in block 125/33 according to the official map of the city of Dallas. The petition alleges that appellee Cochran rendered the property for taxation to the proper officers of the city of Dallas, and that it was accepted and incorporated in the official rolls. The appellees each answered by denial, and specially averred to the effect that the lot was occupied by a churchhouse, which was the First Presbyterian Church, and that he had, on May 31, 1910, executed a lease or rental contract to

that in April, 1910, she closed the school, go- | defendants, plaintiff appeals. Reversed and ing to Illinois, where she remained' until rendered. February, 1911. She testified that when she left Dallas the pianos were in the building where she had been using them, and that she had no recollection of having authorized the piano and organ company to take same from said building. The only other testimony with reference to this phase of the case was that of the manager of the piano and organ company, who said that the two Starr pianos "came down to the store (of the piano and organ company) when Miss Hopkins' conservatory was closed, and came on a telephone message." It seems to us that the testimony that the pianos "came on a telephone message," in the face of Miss Hopkins' testimony that she had no recollection of having authorized the piano and organ company to take same from the building where she left them when she went to Illinois, would not have justified a finding that she sent the message or had it sent, and thereby authorized the piano and organ company to take possession of the pianos. If it would not, then clearly it did not otherwise appear from the testimony than that said piano and organ company wrongfully, both as to Miss Hopkins and Elliott, was in possession of the pi-occupy and use the house and the lot for the exclusive purpose of public worship, and der such circumstances, the piano and organ and is now so using, the entire premises and that the church had, since said time, used, company had no right to refuse to deliver the pianos to Elliott, unless charges it claim-building thereon exclusively for public wored against same were paid, and unless Miss ship, and that the premises were by law exHopkins consented to such delivery. Its refusal, we think, was such a conversion as rendered it liable to Elliott for the value of the two pianos. 28 A. & E. Enc. Law, PP. 705, 708; Scaling v. Bank, 39 Tex. Civ. App. 154, 87 S. W. 717.

anos at the time Elliott demanded same. Un

There is no error in the judgment, in so far as it is against the piano and organ company; and it is affirmed.

CITY OF DALLAS v. COCHRAN et al.† (No. 1292.)

(Court of Civil Appeals of Texas.

Texarkana.
April 2, 1914. Rehearing Denied
April 16, 1914.)

TAXATION (§ 244*)—EXEMPTIONS - PROPERTY

USED BY RELIGIOUS SOCIETY.

Under Rev. St. 1911, art. 7507, § 1, exempting from taxation buildings used exclusively for public worship, and not leased or other; wise used with a view to profit, a building used exclusively for public worship is not exempt from taxation where it is owned by a private individual and leased to a religious society, which pays a monthly rental, for it is leased and used by the owner with a view to profit, within the statute, which should receive a strict construction.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 405-414; Dec. Dig. § 244.*] Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Suit by City of Dallas against Sam P. Cochran and another. From a judgment for

the church, by the terms of which the church

was to pay a stipulated rental and was to

empt from taxation for the year 1911. The case was submitted to the court upon an agreed statement of facts, and judgment was rendered in favor of the appellees. The agreed statement of facts, which the trial court adopts, is as follows:

"(1) That on, to wit, about May 31, 1910, the First Presbyterian Church conveyed to Sam P. Cochran, defendant herein, the following described land [description follows], reserving in said deed and notes express vendor's lien to secure the payment of certain indebtedness, to wit, the sum of $60,000, therein mentioned as part of the purchase money of said lot, $10,000 of which has been paid, and the two notes remaining unpaid of $25,000 each, with vendor's lien, having been conveyed by proper deed of conveyance to the United States Bond & Mortgage Company, Incorporated, and that the said United States Bond & Mortgage Company still owns and holds said notes; that subject to the express vendor's lien above mentioned Sam P. Cochran owned said lot on the 1st day of January, 1911.

"(2) That on the date when the said lot was conveyed to defendant it was occupied by a churchhouse, which the First Presbyterian Church has been using for years for the exclusive purpose of public worship; that it had used none of it, or the grounds attached thereto, for any other purpose.

"(3) That on the date when the said lot

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

was conveyed to said defendant, he immedi- exemption from taxation. And thus there ately executed to the said First Presbyterian arises the precise question for decision of Church a lease or rental contract, which was whether the property is exempt, under the accepted by the said First Presbyterian statute of this state, from taxation at the Church, by the terms of which they con- hands of the legal owner thereof on account tinued to occupy said lots and buildings of the use for purely religious worship which thereon as they had previously occupied them the property is put to by the lessees. Secfor the exclusive purpose of public worship, tion 1, art. 7507, R. S., provides exemption for which they paid the said defendant a from taxation to the following property, in stipulated rental; that under the said lease words as follows: "Public schoolhouses and contract said church has, ever since the date houses used exclusively for public worship, of the said conveyance to the present time, the books and furniture therein and the including the 1st day of January, 1911, oc- grounds attached to such buildings necescupied said lot and buildings thereon and sary for the proper occupancy, use and enused same exclusively for public worship. joyment of the same, and not leased or otherwise used with a view to profit." The latter clause, “and not leased or otherwise used with a view to profit," has clear and explicit reference alike to each the house, the books and furniture, and the ground occupied by the building. And such clause could not properly be construed otherwise than as a qualifying clause upon each and every "It is agreed by the parties hereto that if subject-matter preceding it in the provision. the exclusive use of this property by the said In this view, then, the provision must be First Presbyterian Church for the purpose of here read as exempting from taxation a public worship, and under all the circum-house and necessary grounds which are (1) stances above stated, and that it has not "used exclusively for public worship," and leased out any part of it, or rented it to any other person for profit, does not exempt same from taxation under the laws of Texas, the defendant is liable for taxes thereon due the plaintiff for the year 1911.

"(4) That all of the buildings thereon and furniture in said 'buildings and the grounds attached thereto are necessary and proper for such use.

"(5) That no part of the said lots, buildings, or furniture has been leased or rented out by the said First Presbyterian Church, or otherwise used by it with a view to profit.

"(6) It is agreed that the assessment by the city of Dallas was duly and regularly made, and that the amount of taxes due for the year 1911, exclusive of penalties and interest is $829.92.

"It is contended by the plaintiff in this case that the fact that defendant has bought the property under the circumstances above stated, and leased it to the First Presbyterian Church, renders him liable for the taxes thereon; whereas defendant's contention is that the ownership of the property might be construed to be in him is immaterial, as the exclusive use of the property by the church exempts it from taxation."

C. F. O'Donnell and Marion S. Church, both of Dallas, for appellant. Crane & Crane, of Dallas, for appellees.

LEVY, J. (after stating the facts as above). The trial court gave the legal effect of the agreed facts as follows: "It is concluded as a matter of law that the property above described is exempt from taxation by reason of the fact that it was used by the Presbyterian Church for the exclusive purpose of public worship, notwithstanding the fact that the Presbyterian Church did not own the property." The assignments challenge the ruling of the court. Appellee Cochran was the owner of the premises, and leased the church building and lot to the Presbyterian Church for a stipulated rental. And it is the owner who here seeks and claims

(2) "not leased or otherwise used with a view to profit." The language of the first clause, "used exclusively for public worship," quite clearly denotes the mode and character of use to which the particular property must be put before taxes may not be imposed. But under the second, and qualifying, clause of the provision, the particular property may not be exempted from taxes, though used exclusively for public worship, if "used with a view to profit." It is manifest from the language that the use of the property for church purposes, and the use of the property for profit, cannot both exist if the property is to be exempt. And as the dual use of the particular property cannot exist if the property is to be exempt, it is difficult to perceive how the exemption could apply to the facts here. The fact that the lessee used the premises under a rental contract the fact that the owner, claiming the exfor church purposes would be opposed by emption, was himself putting his property to the use of private gain. And requiring that the property be "used" for religious worship, and not "used with a view to profit," would indicate that the Legislature had in mind, in measuring the exemption, the entire use to which the property is put by all concerned. The language does not express any other meaning. If the full use which the property is put to by all concerned must, under the language of the act, measure the exemption, then there is no warrant to construe the provision in hand as saying that the property would be covered by the exemption if it is not rented out by a lessee. The words do not say so. And neither do we think it means that. The purpose of employing the language of limitation in the sec

ond clause is made apparent when it is con- the use only of religious worship, and that sidered that without this clause the owners would be clearly within the terms of the of property might lease it for profit, to be act. But where the facts, as here, appear used by the lessee for public worship, and otherwise, the terms of the act are not met. thereby exempt it from taxation. And clear- In Scott v. Society of Russian Israelites, ly, we think, the Legislature meant, by add- 59 Neb. 571, 81 N. W. 624, the owner of the ing the language of limitation of the second premises leased it to the society for 10 years clause under consideration, to prevent the for a monthly rental. The statute there owners of property, whoever they might be, provided, as disclosed by the opinion, an exfrom taking advantage of the exemptionemption to property "used exclusively for rewhen any profit to them is derived from the ligious worship." The court there held that particular property. the exemption did not depend, under the It is the universal rule applicable to stat- terms of the statute, upon the ownership of utes exempting property from taxation that the property, but upon the uses that such "when an exemption is found to exist it shall property subserves. But the difference benot be enlarged by construction. On the tween that statute and the statute of this contrary, it ought to receive a strict construc-state can be appreciated the moment it is tion; for the reasonable presumption is that stated. In that statute there was no limitathe state has granted in express terms all it tion upon the exemption. In the statute of intended to grant at all, and that unless the this state there is the limitation that such privilege is limited to the very terms of the property must not be used with "a view to statute, the favor would be extended be- profit." yond what was meant." 1 Cooley on Taxation (3d Ed.) p. 357. This rule plainly meant that the statute must be taken literally, or, if the construction of the law be doubtful, that the doubt must be resolved in favor of the taxing power and against the exemption. 2 Sutherland, Stat. Con. (2d Ed.) § 539; approved Morris v. Masons, 68 Tex. 698, 5 S. W. 519. And, applying these rules, we think the second clause of the provision under consideration, which we are called upon to construe and apply, classifies the premises as taxable, and makes it a subject-matter of taxation, when, as here done by the owner, used for purposes of a private interest.

In the case of City of Louisville v. Werne (Ky.) 80 S. W. 224, the owner of the lot leased it to the trustees of the Walnut Street Baptist Church for a term of 20 years, without rent, for the purposes of a mission church. The provisions of the statute of that state, as given in the opinion, provided exemption from taxation to "places actually used for religious worship, with the grounds attached thereto, and used and appurtenant to the house of worship." The court there held the property was shown to be within the terms of the exemption, because of the fact that its entire use was for religious purposes. But neither the facts nor the provisions of the statute of that case are at all like the instant one. And yet it is not doubted that the statute of Texas would apply to and cover an exemption upon the same facts of the case just mentioned. For illustration: If the owner here had agreed for his property to be used by the church for purely religious worship, rent free, the exemption would apply. It would apply because the entire and full use of the property would, in such case, be without a "view to profit" by any one. And it would likewise apply where a church owns the property and uses it exclusively for religious worship. In each instance the property would be put to

But to the contrary of that case is the case of State v. MacGurn, 187 Mo. 238, 86 S. W. 139, 2 Ann. Cas. 808, where a lot was leased at an annual rental to a school board to be used for school purposes. The statute there, as stated in the opinion, exempted from taxation "lots in incorporated cities when the same are used exclusively for schools." There the court held that to constitute an "exclusive" use of the premises for school purposes there must be no profit or gain from the property at the hands of the owner. And that case cites several decisions of other states, which can be referred to, placing the same construction upon similar statutes.

Appellant also cites and relies on the cases of Vail v. Beach, 10 Kan. 214; Anniston v. State, 160 Ala. 253, 48 South. 659. In both of those cases the statute in hand merely declared the property exempt "when the same are used exclusively" for the purposes named. And the statute of this state, as before observed, is not intended to grant exemption without limitation. This difference makes inapplicable the cases cited.

The judgment is reversed and here rendered in favor of the city of Dallas for the amount of the taxes, interest, and penalty sued for against appellee Cochran, with a foreclosure of the tax lien against the property described against both appellees. The costs of the trial court and of this appeal will be taxed against appellees.

MISSOURI, O. & G. RY. CO. OF TEXAS v..
BROWNING et al. (No. 1289.)
(Court of Civil Appeals of Texas. Texarkana.
March 26, 1914.)

1. DEPOSITIONS (§ 83*)—NOTICE-TIME OF FIL

ING.

Defendant cannot object to depositions taken and used on behalf of plaintiff, on the ground that defendant had not been legally served with

Evidence that a railroad engine was throw-authorized agent of the appellant and within ing more sparks at a particular time than was usually thrown by other engines passing in that direction was not objectionable as a conclusion, in absence of a showing that witness was not capable of telling, from observation, whether the engine threw more sparks than engines usually did in passing that point.

HODGES, J. On January 16, 1913, the ap-lahoma & Gulf Railway Company (of Texas), pellees filed this suit against the appellant to recover damages for the destruction of a house by fire. It is alleged that the fire originated from sparks emitted by one of the appellant's locomotives, and that the appellant was negligent in its equipment and operation. In a trial before a jury, a verdict and judgment were rendered in favor of the appellees for $250.