Calvary Baptist Church v. Milliken

• Decision Date: 28 May 1912
• Citation: 147 S.W. 12,148 Ky. 580
• Parties: CALVARY BAPTIST CHURCH v. MILLIKEN et al.
• Court: Kentucky Court of Appeals

147 S.W. 12

148 Ky. 580

CALVARY BAPTIST CHURCH v. MILLIKEN et al.

Court of Appeals of Kentucky.

May 28, 1912

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Petition by the Calvary Baptist Church against C. W. Milliken and others to obtain relief from the payment of certain taxes. Petition dismissed, and plaintiff appeals. Affirmed.

Bennett H. Young and Marion W. Ripy, both of Louisville, for appellant.

Harris Fleming, Clayton B. Blakey, and Joseph S. Lawton, all of Louisville, for appellees.

NUNN J.

This appeal is prosecuted by appellant for the purpose of obtaining relief from the payment of taxes on certain property in the city of Louisville. Upon a trial of the case in the lower court, it rendered an opinion which admirably and succinctly presents the facts of and the law governing the case, and we adopt it as the opinion of this court. The opinion is as follows "For a great many years, the plaintiff, a religious organization, has owned and used for church purposes a lot fronting 65 feet on the west side of Fifth street, near York street, together with the church building on that lot. On the northwest corner of Fifth and York streets, and adjoining on the south the lot just mentioned, is a lot, 16 feet front and extending back that width 108 feet. There is a building on this latter lot three stories in front and two in the rear the first floor of which is used as a store, and the remainder for dwelling purposes. The church building and this latter building are so located with reference to each other that there is a space of but a few inches between the south wall of the former and the north wall of the latter. It becoming known to the congregation that the owner of the corner lot was considering the matter of adding more stories to his building, which additions would entirely exclude the light from the south windows of the church, the corner lot and building were bought by the trustees of the church some four or five years ago, with the intention of tearing down the building. This has not as yet been done, because, as explained by the pastor of the church in his deposition, the property, in its improved condition, yields a monthly rental which is being used to complete the payment of the purchase price; whereas, if the building were removed, this revenue would be lost. The front part of the building produces a rental of $42 a month; and the rear part is occupied as a dwelling by the sexton of the church and by one of its trustees, for which part they pay the church $15 a month. No part of the property is used as a parsonage, as the pastor resides on another street in a house which he himself owns.

"In September, 1910, the corner lot was assessed for taxes for the year 1911 by the city assessor of Louisville. The present action was instituted by the church, which is incorporated against the city and C. W. Milliken, as tax receiver, to enjoin the collection of the taxes; it being claimed that the lot is exempt from taxation. The city answered, denying the claim of exemption, and, setting up its tax bill, made its answer a counterclaim and prayed judgment for the amount.

"The claim of exemption is based upon section 170 of the Constitution of Kentucky, which section, in so far as it applies to religious organizations, provides: 'There shall be exempt from taxation *** places actually used for religious worship, with the grounds attached thereto and used and appurtenant to the house of worship, not exceeding one-half acre in cities and towns, *** all parsonages or residences owned by any religious society, and occupied as a home, and for no other purpose, by the minister of any religion, with not exceeding one-half acre of ground in towns and cities *** appurtenant thereto.'

"It will be observed that the property in question does not come within the express terms of either of the foregoing grounds of exemption; for it is not 'actually used for religious worship,' nor is it used as a 'parsonage,' nor 'occupied as a home, and for no other purpose, by the minister' of the plaintiff. Nevertheless it is contended for the plaintiff that the property is exempt, because, as urged by counsel, the lot in question comes within the description of 'grounds attached thereto and used and appurtenant to the house of worship,' as prescribed in section 170, and also because the plaintiff was forced to buy the lot, or suffer the shutting out of the light from its house of worship by the addition of the other stories to the building on the corner lot.

"By the phrase 'grounds attached thereto,' as employed in section 170, it seems to the court plainly was meant a yard or lawn, or that portion of the lot surrounding the house of worship, not occupied by buildings, except, perhaps,...