City of Harper v. Fink

Decision Date09 July 1938
Docket Number33863.
Citation80 P.2d 1080,148 Kan. 278
PartiesCITY OF HARPER v. FINK et al.
CourtKansas Supreme Court

Syllabus by the Court.

The constitutional provision that certain property shall be exempt from taxation does not preclude Legislature from providing for other exemptions. Const. art. 11, § 1.

Under statute relating to property exempted from taxation and exemption statutes exempting assets belonging to different classes of cities, test of whether real estate belonging to a city is exempt from taxation is ownership and not use. Gen.St.1935, 13-1406, 14-1001, 15-1101, 79-201.

Where entire annual income of residuary estate is devised in perpetuity to city for public purpose, devise operates as a grant to city of entire estate with limitation only as to its use. Gen.St.1935, 12-101.

Property devised to second class city by will providing that income should be placed in city's cemetery fund was exempt from taxation. Gen.St.1935, 12-1401, 12-1408, 121-409, 14-1001 79-201, subd. 6.

1. The power of the legislature to provide exemption of property from taxation is not limited by art. 11, sec. 1 of the state constitution.

2. Under G.S.1935, 79-201 and 14-1001, the test of whether real estate belonging to a city is exempt from taxation is ownership and not use.

3. Following Schnack v. City of Larned, 106 Kan. 177 186 P. 1012, it is held: "Where the entire annual income of a residuary estate is devised in perpetuity to a city for a public purpose, the legal effect of such a devise operates as a grant to the city of the entire estate, with limitation only as to its use."

Appeal from District Court, Harper County; George L. Hay, Judge.

Mandamus proceeding by the City of Harper, Kansas, against W. G. Fink and others, as Tax Commissioners of the State of Kansas, and another to compel the taxing authorities to strike from the tax rolls of Harper county certain real estate claimed to be exempt from taxation. From a judgment allowing the writ, the defendants appeal.

Judgment affirmed.

D. C Hill, of Wamego, and Donald Muir and Guy Neal, both of Anthony, for appellants.

Martin S. Hall, of Harper, for appellee.

Austin M. Cowan, C. A. McCorkle, W. A. Kahrs, Robert H. Nelson, and Henry L. Butler, all of Wichita, amici curiae.

THIELE Justice.

This was a proceeding in mandamus to compel the taxing authorities to strike from the tax rolls of Harper County certain real estate claimed to be exempt from taxation. The writ was allowed and defendants appeal.

The plaintiff is a city of the second class under the statutes of this state. One F.

E. Bollman, a resident of Harper County, died October 2, 1934, leaving a last will which was duly admitted to probate. The ninth paragraph of the will provided:

"Ninth: I give, devise and bequeath to the city of Harper, Kansas, the southeast quarter of section 4, township 32, range 7, Harper County, Kansas, the income from which shall be placed in the cemetery fund of the city of Harper, Kansas, for the purpose of maintaining said cemetery and endowing both my lot and the lot of my father and mother. Should the city of Harper desire, through proper proceedings to dispose of said quarter section of land and invest the proceeds in government bonds of the United States, then it is my will and I do hereby grant said city such authority, it being my wish that none of the principal shall ever be used for any other purpose than to be invested, but that the earnings from said investment may be used for the care and upkeep of said cemetery."

It is not necessary that we fully review the motion for the writ, the alternative writ and the answers of the respective defendants. There was no dispute of facts. The motion for the writ and the alternative writ alleged the facts with reference to the Bollman will, the acceptance of the gift by the city; that during its ownership by the city the real estate had been assessed and carried on the tax rolls; that proper steps had been taken to have it stricken from the tax rolls as exempt property and such relief denied by all the defendant taxing authorities.

The answers denied the right of the city to accept the property; that the property was used for cemetery purposes, or that the city was the exclusive and absolute owner of the property, and alleged that to exempt the property from taxation would be contrary to and in violation of the provisions of art. 11, section 1, of the state constitution. It was affirmatively alleged also that the real estate was used for general farming purposes, and that the city, if it had any title was only trustee of a charitable trust to use the property, or the income derived from its sale, for cemetery purposes.

The journal entry of judgment showed the trial court considered the pleadings filed and the agreed statement of facts, and that the plaintiff was entitled to judgment. The abstract contains no statement of agreed facts but it seems undisputed that before this action was filed the city had, presumably out of income endowed the lots of the testator and his parents, and that the entire income was being devoted to maintaining the cemetery generally.

The sole question presented by the appellants is whether under the will the city acquired such title to the real estate that it is exempt from taxation.

Under art. 11, sec. 1, of our constitution, it is provided the legislature shall provide for a uniform and equal rate of taxation, that certain property (of a class not here involved) may be classified and further that "All property used exclusively for *** municipal *** educational *** benevolent and charitable purposes *** shall be exempted from taxation." Appellants contend that in the above constitutional provision the word "exclusively"...

To continue reading

Request your trial
11 cases
  • State ex rel. Tomasic v. Kansas City
    • United States
    • Kansas Supreme Court
    • November 25, 1981
    ...Co., 8 Kan. 344, 349 (1871). The constitution does not provide, however, that other exemptions may not be made. City of Harper v. Fink, 148 Kan. 278, 280, 80 P.2d 1080 (1938); Gunkle v. Killingsworth, 118 Kan. at 156, 233 P. 803. The legislature may provide other statutory exemptions if suc......
  • State ex rel. Tomasic v. Kansas City
    • United States
    • Kansas Supreme Court
    • June 21, 1985
    ...Co., 8 Kan. 344, 349 (1871). The constitution does not provide, however, that other exemptions may not be made. City of Harper v. Fink, 148 Kan. 278, 280, 80 P.2d 1080 (1938); Gunkle v. Killingsworth, 118 Kan. at 156 . The legislature may provide other statutory exemptions if such exemption......
  • Lario Enterprises, Inc. v. State Bd. of Tax Appeals
    • United States
    • Kansas Court of Appeals
    • September 27, 1996
    ...test of 79-201a Second is consistent with the construction given by the Supreme Court to a predecessor statute in City of Harper v. Fink, 148 Kan. 278, 80 P.2d 1080 (1938). In that case, the City of Harper sought a tax exemption for property it received under the terms of a will. The City c......
  • Rose v. City of Wichita
    • United States
    • Kansas Supreme Court
    • July 9, 1938
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT