Enaut v. Tax Collectors.

Lord CAIRNS and Lord COCKBURN in Atkinson v. Newcastle Water-works Co., are very misleading. See also Addison Torts, 67; Stevens v. Jeacocke, 11 Q. B. (N. S.) 731, 741; Flynn v. Canton Co. of Baltimore, 40 Md. 312; Heeney v. Sprague, 11 R. I. 456."

See Taylor v. Lake Shore, etc., R. Co., 45 Mich. 74; s. c., 40 Am. Rep. 457; Willy v. Mulledy, 78 N. Y. 310; s. c., 34 Am. Rep. 536.

Vacant lots bought by the authorities of a church and held in private ownership, in anticipation of the increase of the city, and with the intention of possibly erecting thereon a church, school, or hospital when needed, are not exempt from taxation as a place of public worship," or a "charitable institution," or "property used for colleges or other school purposes.'

A

CTION to restrain collection of a tax. The opinion states the case. The defendant had judgment below.

R. Ray, for appellant.

T. O. Benton, for appellees.

FENNER, J.

Plaintiff, who is parish priest for St. Matthew's Church in Munroe, brings this action to enjoin the collection of State and city taxes on property held for the benefit of the Roman Catholic Church, on the ground that it is exempt from taxation under the provisions of article 207 of the Constitution of 1879.

The property consists of two vacant squares in the city of Munroe which have never been leased or used for any purpose whatever. They were bought in 1874, and according to the testimony of plaintiff himself, who is the sole witness in the case, "the purchase was made upon my representing to the proper parties that it would be advisable for the church to have some grounds for improvements in case the city should increase. That was the reason of the purchase. They were purchased exclusively for the use of the Catholic Church, and have not been on the market since, and are waiting for the building to be made as soon as possible. It is intended to

* See Mullen v. Commissioners (85 Penn. St. 288), 27 Am. Rep. 650.

Enaut v. Tax Collectors.

build a school-house, or church, or hospital, as may be needed, on those lots."

This is the sole testimony in the transcript affecting the question. Article 207 of the Constitution exempts "places of religious worship, all charitable institutions, all buildings and property used exclusively for colleges or other school purposes," etc.

We are not precisely advised whether plaintiff claims that the property here is a "place of religious worship," a "charitable institution," or "property used exclusively for colleges or other school purposes."

Unless it falls, literally or by clear intendment, within one of these categories, there is no warrant for the exemption claimed. Literally, it certainly falls within neither of them. It is not a "place of religious worship;" it is not a "charitable institution;" it is not "used for college or other school purposes." Nor in any legal sense, is there a dedication of the property to any one of those purposes or to all of them combined. Obviously it is not yet determined whether a church, or a school, or a hospital shall be established. A mere vague purpose exists at some indefinite time to establish one or more of these institutions on the property, as may be needed. Nothing fixes this purpose; nothing prevents the owner from abandoning it at will, nothing opposes his right to convert it into business or residence property, or to sell it to the first advantageous purchaser. Such an ambulatory and purely potestative dedication amounts to nothing.

The plain fact is that the church authorities, impressed in 1874 with the belief that the city of Munroe was destined to increase largely in size and population, thus adding to the value of property and extending the field of operation of the church, with that judicious and far-sighted providence which characterizes them, thought it wise to invest in this property, before the anticipated accretion in value should take place, in order (to use plaintiff's language) that the church might "have some ground for improvements in case the city should increase."

The anticipated inThe expansion of the The necessity for the

The property has been beld for ten years. crease of the city has not taken place. church's field and needs has not arisen. "improvements" is not yet upon it. No plan is yet decided upon. No steps are on foot to build church, school or hospital. For aught appears, the vague and undefined purpose is no nearer fruition

that

Enaut v. Tax Collectors.

to-day than it was ten years ago. Non constat that it will ever be carried out. By no stretch of even the most liberal interpretation can property thus owned and situated be brought within the purview of the constitutional provision exempting "places of public worship, charitable institutions and property used for colleges or other school purposes."

Analogy is entirely wanting between this case and those supposititious ones instanced by plaintiff's counsel, such as property upon which a church, school or hospital is being constructed; or property on which such buildings had existed which had been burned down and while preparations were being made to rebuild; or the new graveyard, waiting for death to bring its tenants. Such cases will be determined when they arise, but upon principles entirely inapplicable here.

Judgment affirmed.

CASES

IN THE

COURT OF ERRORS AND APPEALS

OF

NEW JERSEY.

HARRAL V. HARRAL.

(39 N. J. Eq. [12 Stew.] 379.)

Marriage-domicile change of residence.

H., born in Connecticut, went to Europe in 1869, to acquire the German language, and complete his professional studies. In 1872 he went to Paris, where he remained; and in February, 1877, there married a French woman, without any contract as to property. Immediately after he rented a house at Suresnes, near Paris, for two years, and took up his residence there with his wife. In May, 1878, he was brought to this country, and sent to a hospital for the insane at Philadelphia, where he died in 1881. Held, that his personal property became subject to the community law of France, and that his widow was entitled to one-half thereof, notwithstanding that by his will made before the marriage he had bequeathed the whole of it to others.

A

PPEAL from the chancellor, 37 N. J. Eq. (10 Stew.) 458. The head-note states the facts.

Flavel McGee and J. D. Bedle, for appellants.

John Linn and F. R. Coudert, of New York, for respondents.

DEPUE, J. The law of France in relation to the rights of husband and wife in the property of either spouse is established by the VOL. LI-3

Harral v. Harral.

Code Napoleon. Before the French revolution the northern provinces of France were under the customary law, and the community of property governed the nuptial contract; in the southern provinces the Roman law prevailed, and the contract was governed by the dotal system. The Code Napoleon left the parties to elect the law by which the marriage should be governed, and if no election was made, the community system was to prevail. 2 Kent Com. 187, note. Section 1391 of the Code provides that the parties may declare in a general manner that they intend to marry either under the law of the community or under the law of dowry. The community is either legal or conventional. Legal community is established either by a simple declaration that the parties marry under the law of community or by a marriage without any contract on the subject. §§ 1400, 1497. There was no marriage contract between these parties with respect to property; and if disposition of the personal estate in question is to be made by the French law, it must be disposed of as community property.

Community is divided by the Code into two classes active and passive. The former relates to the disposition of property; the latter, to liability for debts. The property which is comprised in the community consists of (1) All the movable property which the married parties possessed on the day of the celebration of the marriage, and all movable property which falls to them during the marriage, by succession, or even by donation, if the donor has not expressed himself to the contrary; (2) All the fruits, revenues, interest and arrears of what nature soever they may be, fallen due or received during the marriage, and arising from property which belonged to the married persons at the time of the celebration of the marriage, or from such as has fallen to them during the marriage by any title whatsoever; and (3) All immovable property acquired during the marriage. § 1401. This community, whether it be conventional or legal, commences from the day of the marriage contracted before the officer of the civil power. § 1399. During the coverture the husband has the custody, control, management and power of disposition (under some restrictions) of the community property (§§ 1421, 1422); and he may make a testamentary disposition of his portion of the community property, but of no more. § 1423. After the death of the husband the wife may accept or renounce the community. § 1453. If she accept it, her share that is, the one-half part of the community property