[6, 7] At the outset, the burden of proving an institution's entitlement to a tax exemption rests on the applicant. See Nature Conservancy v. Nelson, 107 N.H. 316, 319, 221 A.2d 776, 778-79 (1966); Williams v. Park, 72 N.H. 305, 311, 56 A. 463, 464 (1903). It is only after the applicant has demonstrated that it is an exempt institution will there generally be "a strong presumption in favor of the judgment of an educational institution's officers as to what uses of land or buildings are necessary to promote the institution's purposes."
The usual test of statutory construction, to declare what the legislature has meant by the language it has used (Opinion of the Justices, 66 N.H. 629, 661), will be found to have been employed, it is believed, in all cases where statutes providing for taxation have been interpreted and was expressly accepted in the recent case of Young Women's c. Association v. Portsmouth, ante, 40. ". . . the policy of the state requires the taxation of property as a general rule." Williams v. Park, 72 N.H. 305, 311. "If the literal meaning of particular words is inconsistent with the general purpose, there is grave reason to doubt whether the literal sense is the sense intended by the legislature." Trust Guaranty Co. v. Portsmouth, 59 N.H. 33.
The policy to tax may account for the rule that it will prevail if the policy to exempt has not been clearly exercised, but there is no rule that any such exercise is to be regarded as doubtful. In Williams v. Park, 72 N.H. 305, 311, 312, and cases cited, statutes whose language was thought to be doubtful in certain applications were construed to deny the exemptions claimed. No theory was invoked that an exemption clearly granted was to be doubtfully regarded, or that an exemption of itself raised a doubt.
The practice of granting specific exemptions to individuals or corporations (chiefly the latter) began to flourish in 1805. Failure to notice these acts, and the statement (in Williams v. Park, 72 N.H. 305, 312) that "a careful examination has not brought to notice any statute upon the subject passed between 1819 and 1860," are accounted for by the fact that the private acts of that time were published at a later date. Recent publication has made them available, and reveals the fact that about sixty such acts were passed from 1805 to 1820.
In those cases it was held that the burden is upon one claiming an exemption to show that he is entitled to it by language open to no other conclusion. State v. Savings Bank, 71 N.H. 535, 537; Phillips Exeter Academy v. Exeter, 58 N.H. 306; Boody v. Watson, 63 N.H. 320; Williams v. Park, 72 N.H. 305. There is no question as to the soundness of the law laid down in these cases. But in the instant case we are confronted with a different situation.
As taxation is the general rule, it is said that the burden is upon the party claiming that his property is exempt from taxation to establish the fact by clear and convincing proof that the legislature so intended, and that all doubts upon that point must be resolved against its exemption. This general statement of the rule of construction in such cases has often been reiterated and justified upon constitutional grounds (Phillips Academy v. Exeter, 58 N.H. 306; Franklin-Street Society v. Manchester, 60 N.H. 342; Alton Bay Ass'n v. Alton, 69 N.H. 311; New London v. Academy, 69 N.H. 443; Williams v. Park, 72 N.H. 305; Portsmouth Shoe Co. v. Portsmouth, 74 N.H. 222; Canaan v. District, 74 N.H. 517, 525); and while it serves to express a principle governing the court in this jurisdiction when passing upon the question of the intention of the legislature in tax-exemption statutes, it is not so narrow and rigid in its application as to defeat the lawmakers' intention ascertained from all the competent evidence. Though called a rule, for convenience of expression, it is merely evidence to be weighed; and its weight depends upon its reasonableness, and not alone upon its verbal applicability.
Bly v. Railway, 67 N.H. 474. A holding that the legislature intended to limit its encouragement to mill-owners who manufactured such articles as were known and used previous to 1868 would plainly be an unreasonable construction of the act, not required by its language and not supported by the public policy upon which it was based. The decision in Williams v. Park, 72 N.H. 305, is not, as argued, a conclusive authority that the Power Company's business is not a manufacturing industry of such a character as to be within the purpose of the statute in question. In that case it was held that a plant designed for generating and distributing electric light and power is not a "manufacturing establishment" within the meaning of the statute (P.S., c. 55, s. 11) which authorizes towns to "exempt from taxation for a term not exceeding ten years any manufacturing establishment proposed to be erected or put in operation therein.
As Samuel's covenant that the plaintiff might live separate and apart from him forms a part, at least, of the consideration for her covenants, and as it cannot be known whether she would have entered into the contract but for his covenant that she might live apart from him, his covenant that she might do so is not independent of, and cannot be separated from, her covenants, and treated as valid, leaving the latter to stand. Foote v. Nickerson, supra; Williams v. Park, 72 N.H. 305, 311. That the renunciation of marital obligations and duties was one of the purposes sought to be accomplished by the contract, is not obscure or doubtful. It was therefore not open to the parties to contradict this express intent by extraneous evidence; and if the evidence from which it was found — that the parties continued to live together for a time after the contract was made — was introduced for this purpose, it was incompetent and immaterial. Bancroft v. Company, 72 N.H. 402, 404; Horne v. Hutchins, 72 N.H. 211, 214. If it was introduced for the purpose of showing that the provisions of the contract relating to living apart had been waived, that fact is not found.
"The language of the statute strongly supports this conclusion, and so does the uniform current of authority, that taxation being the rule and exemption the exception, the exemption is to be strictly construed, and will never be permitted to extend, either in scope or duration, beyond what its terms clearly require." Boody v. Watson, 63 N.H. 320. See, also, New London v. Academy, 69 N.H. 443; Williams v. Park, 72 N.H. 305, 311. It is certain that the language of the statute does not clearly disclose an intention to allow the exemption of one man's property from taxation, because it is used by another under some contractual arrangement between them, in a business which enjoys an exemption. If the mere use of the property, without regard to its ownership, had been intended to be the test to determine whether it could be exempted under the statute, it would be natural to expect more explicit language indicating such a purpose.
In that event the old road would cease to be a statutory highway, and its discontinuance would then become a completed fact, subject only to the consent of the court. Whatever there may be in the action of the town that is ultra vires may be rejected without impairing the evident fact of its intention, as above indicated, which was the accomplishment of a legal purpose in a legal way. No material part of the apparent inducement influencing the voters in their discontinuing vote was illegal; and as immaterial irregularities or immaterial matters of inducement do not render the otherwise legal action of the town illegal (Williams v. Park, 72 N.H. 305), the vote is not invalid for that reason. Cheshire Turnpike v. Stevens, supra.