City of Louisville v. Ewing Von-Allmen Dairy Co.

• Citation: 268 Ky. 652,105 S.W.2d 801
• Parties: CITY OF LOUISVILLE et al. v. EWING VON-ALLMEN DAIRY CO.
• Decision Date: 18 May 1937
• Court: Court of Appeals of Kentucky

105 S.W.2d 801

268 Ky. 652

CITY OF LOUISVILLE et al. v. EWING VON-ALLMEN DAIRY CO.

Court of Appeals of Kentucky

May 18, 1937

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Suit by Ewing Von-Allmen Dairy Company against the City of Louisville, a municipal corporation, and others. From the judgment, the defendants appeal.

Reversed for proceedings consistent with opinion.

J. Ward Lehigh, of Louisville, for appellants.

Edward P. Humphrey and Marvin H. Taylor, both of Louisville, for appellee.

BAIRD Justice.

The sole question involved on this appeal was the machinery owned and used by appellee in pasteurizing milk in its natural state, subject to municipal assessment and taxation, within the meaning and intent of section 4019a-10, Kentucky Statutes?

The record shows that the machinery of appellee used in the pasteurization process was, by mistake, as appellee alleged in its petition, assessed with the proper officials of the city for $63,862, which is now claimed to be exempt from taxation for municipal purposes.

Appellee in its petition, in addition to other necessary and proper allegations, alleged, in substance, that it was the owner of machinery with which it pasteurized raw milk and states the process used by it as follows:

"Upon receipt of raw milk at said plant it is tested for butter fat and other solid content; it is then inspected for flavor and condition and sampled for chemical content after which it is weighed and emptied into special receiving equipment adapted for such purpose; from these containers or receiving vats it is pumped into large storage tanks where it is blended and standardized to conform to the particular grade and standard of milk which the dealer is selling. These tanks are pieces of equipment made of stainless steel, insulated and jacketed so that proper refrigerants can pass around the outside and the milk thereby kept in good condition. All equipment used in handling milk is of heavy type because of the nature of the product, and is made out of stainless material or solid copper plated with tin. From these blending tanks milk is pumped through a regenerating process, where through delicate electrical instruments the proper temperature is raised and maintained for the purpose of pasteurization which kills all types of pathogenic organisms and also to a certain extent changes the flavor of the milk. The pasteurization process must be confined to a very slight variance in temperature, and consists of heating milk to 142 degrees Fahrenheit and then holding it at this temperature for thirty minutes, at the expiration of which time the milk must be immediately chilled to 38 degrees Fahrenheit before it can be further handled. After leaving the pasteurization equipment it goes through a process of filteration to surge tanks and then to the packaging department.

"The milk is then bottled under vacuum and caps are automatically sealed on bottles that have been sterilized just prior to reception of milk. All of this process involves a very intricate operation by automatic machinery. The milk which is finally sold to the consuming public is entirely different from the raw milk which comes into the plant. The plaintiff states that the machinery thus used by it is machinery used in manufacturing and was so used at all times involved herein."

A demurrer was interposed to the petition by appellants. It was overruled. Appellants declined to plead further, but chose to stand on the demurrer. The court then adjudged that the machinery used in the process of pasteurizing milk was exempt from assessment and taxation by the City of Louisville; and further adjudged that the temporary injunction, that had heretofore been granted, be made permanent, that each of the defendants were permanently enjoined from enforcing the assessment or collecting taxes against appellee, Ewing Von-Allmen Dairy Company, for municipal purposes of the City of Louisville. Each of the defendants were restrained from selling or offering for sale any of the property of the company for the purpose of collecting the taxes in any manner. From that judgment, this appeal is prosecuted.

Section 4019a-10, Kentucky Statutes, provides: "All property subject to taxation for state purposes shall be subject also to taxation in the county, city, school, or other taxing district in which same has a taxable situs, except the following classes of property which shall be subject to taxation for state purposes only: *** Machinery and products in course of manufacture, of persons, firms, or corporations, actually engaged in manufacturing, and their raw material actually on hand at their plants for the purpose of manufacture and unmanufactured agricultural products in the hands of the producer or in the hands of any agent or agency of the producer to which said products have been conveyed or assigned for the purpose of sale by the producer."

Under the provisions of that statute, is appellee engaged in manufacturing? If not, then the machinery used by it in the process of pasteurizing milk is not exempt from assessment and taxation.

We have often ruled that the word "manufacture," as used in the statute, supra, is not susceptible of accurate definition; or of a definition that is all-embracing or all-exclusive. Commonwealth, for Use of Rockcastle County, v. W. J. Sparks Co., 222 Ky. 606, 1 S.W.2d 1050.

We have said also that as accurate a definition as can be given is: "To work, as raw or partly wrought materials, into suitable forms for use". Webster's New International Dictionary.

We have again said, in Hughes & Co. v. City of Lexington, 211 Ky. 596, 277 S.W. 981, 982: "That the definition of the term is a question of law and for the courts is plain, but the courts are practically agreed that it is incapable of exact definition, and that there is no hard and fast rule which can be applied, but that each case must turn upon its own facts, having regard for the sense in which the term is used and the purpose to be accomplished. City of Louisville v. Zinmeister & Sons, 188 Ky. 570, 222 S.W. 958, 10 A.L.R. 1269; Standard Tailoring Co. v. City of Louisville, 152 Ky. 504, 153 S.W. 764, 44 L.R.A. (N.S.) 303, Ann.Cas.1915B, 220; City of Lexington v. Lexington Leader Co., 193 Ky. 107, 235 S.W. 31 ; City of Henderson v. Geo. Delker Co., 193 Ky. 248, 235 S.W. 732; 38 C.J. 972."

We have also said, in City of Louisville v. Zinmeister & Sons, supra "If raw material is converted at a factory or plant into a finished product, complete and ready for the final use for which it is intended, or...