City of Owensboro v. Commonwealth

• Decision Date: 18 January 1899
• Parties: City of Owensboro v. Commonwealth.
• Court: Kentucky Court of Appeals

105 Ky. 344

City of Owensboro v. Commonwealth.

Court of Appeals of Kentucky.

January 18, 1899.

APPEAL FROM DAVIESS CIRCUIT COURT.

J. A. DEAN FOR THE APPELLANT.

W. S. MORRISON AND T. L. KARN FOR THE APPELLEE.

JUDGE PAYNTER DELIVERED THE OPINION OF THE COURT.

This appeal involves the question as to the right of the Commonwealth to compel the city of Owensboro to pay taxes upon property as follows, to-wit: (1) The fire department property, including engine houses, and grounds on which situated, fire engines, hose reels, hook and ladder wagons, hose, and necessary horses. (2) A public park of the city.

At the time the case of City of Louisville v. Com., 1 Duv., 295 , was decided, there was no statute defining what part of the property belonging to municipalities should pay tax, or what part should be exempt from taxation. The language of the statute then in force was so comprehensive as to embrace all property as taxable which belonged to municipalities. The court held that the law constructively applied to persons only, and not at all to public bodies exercising, in different degrees, the sovereignty of the State and that "the city of Louisville, to the extent of the jurisdiction delegated to it by its charter, is but an effluence from the sovereignty of Kentucky, governs for Kentucky, and its authorized legislation and local administration of law are legislation and administration by Kentucky, through the agency of that municipality."

The court was of the opinion that the exception specified in the statute did not imply that municipal property, "used for public purposes of local government, was to be taxed, and adjudged that the property of the city of Louisville "used for carrying on its municipal government," was exempt from taxation. In determining what property was constructively subject to, and what was exempt from, taxation under the statute, it said: "Whatever property, such as courthouse, prison and the like, which became necessary or useful to the administration of the municipal government, and is devoted to that use, is exempt from State taxation; but whatever is not so used, but is owned and used by Louisville in its social or commercial capacity as a private corporation, and for its own profit, such as vacant lots, market houses, fire engines and the like, is subject to taxation. If, however, as just indicated, the property owned by the city as a private corporation is not used for profit to the city, but is dedicated to charity, it is not constructively subject to taxation under any existing law."

The effect of the opinion is that, under the statute, the court could not adjudge any property belonging to the municipality exempt from taxation except such as was used for charity, or used or needed for a governmental purpose, and the court concluded that engine houses were not used or needed for that purpose. The opinion of the court in 1 Duv., 295, is criticised by Dillon on Municipal Corporations, sec. 774, note 1, wherein it is, in effect, said the exemption by implication should have extended to all the property of the city sought to be taxed. Cooley on Taxation, 173-4, likewise criticises the opinion by saying it limits the implied exemption unreasonably.

We recognize as just in part the criticism made by the learned authors. The case was decided in February, 1864, and at a time when the General Assembly was in session. That body evidently was of the opinion that the court did not give the construction to the statute which the legislative department of the government intended it to have; for on the 22d of February, 1864, an act was approved which provides "that all property belonging to any city or town of this Commonwealth, and which is necessary to the carrying on the government of such city or town, viz., police court houses, mayor's offices, including offices for the various city or town officers in said buildings, fire engine houses, engines and horses belonging thereto, work houses, alms houses, hospitals, pest houses, together with the grounds belonging thereto, be and the same is hereby exempt from all taxation." By the express declaration of the act, engines and engine houses were necessary to carrying on the government of cities.

This statute remained in force until the enactment of the "Hewitt Law," in which there was a clause for the exemption of property belonging to counties, cities and towns in the following language, to-wit: "Property owned in its entirety by counties, cities and towns, which is necessary to carry on the government of such county, city or town." General Statutes, (Ed. 1888) p. 1036. This provision remained in force until the adoption of the present Constitution, sec. 170 of which reads as follows: "There shall be exempt from taxation public property used for public purposes . . . ." From this section it must be determined whether or not the municipality must pay taxes upon the property mentioned.

It is hardly necessary to observe that a municipality is an arm of the State, an "effluence" from its sovereignty, and is an instrumentality by which the State seeks to give to its citizens the best government possible. The police force of a city is for the protection of the lives and property of the citizens of the State, but especially within the limits of the municipality, and the cost of maintaining it is paid at public expense. The firemen of a municipality are paid out of taxes levied for that purpose, and they are maintained to protect the lives and property of citizens of the Commonwealth. The firemen of a city are just as essential to its safety and proper government as is its police force. The fire department can only be effective by having engines, engine houses, and appliances which are usual in meeting the demands on the department. The property of a city used in connection with its fire department is, in our opinion, public property, used for public purposes, and is necessary to its government.

Hickman Park is a public park, maintained at public expense, not for profit, but for the public good. It is open to the rich and poor alike, whether they live in or outside the city. The municipal authorities are charged with the duty of maintaining the public health, and, in the judgment of scientific men, it is essential to the public health that cities have and maintain parks, where the people can breathe wholesome air. People of this enlightened age justify the levying of taxes to maintain them. They are just as much public property, used for public purposes, as are the streets, and trees planted therein, and it would be just as proper and reasonable to tax the one as the other. The public have access to and enjoy both. In our opinion, the public park is public property, used for public purposes, and necessary to the proper government of a city. Besides, why should an "effluence" from the sovereignty pay taxes to it on property which is essential to the proper discharge of the duty imposed of maintaining the public health?

The judgment is reversed for proceedings consistent with this opinion.

(January 27, 1899.)

JUDGE GUFFY DISSENTING.

The object of this action was to require the appellant to list certain property for taxation, as set up in the statement and pleadings mentioned. The judgment of the court below held that the engine house No. 1, situate on the north side of Fourth street, and fronting fifty feet thereon, and running back by parallel lines about sixty feet, and which lies between St. Ann and Allen streets, in said city, of the value of $1,000, for the years 1893, 1894, 1895, 1896 and 1897; and one lot known as "Engine House Lot No. 2," in the city of Owensboro, of the value of $2,500, for each of said years; and also a parcel of ground situated about two miles south of said city of Owensboro, known as "Hickman Park," describing the same, and containing 23.73 acres, for said years, at the value of $2,200 for each of said years; and also five horses, of the value of $75 each; also four mules, of the value of $50 each, for said years; and two hose reels, of the value of $155; also one hose, of the value of $500; also one hook and ladder wagon, of the value of $100, and also one chemical engine, of the value of $500, for each of said years — were all liable for the taxes claimed; and it was further adjudged that, in addition to the taxes hereinbefore set out, the appellant is liable for 20 per cent. on the total amount of said taxes due, and the costs of this proceeding.

From the aforesaid judgment this appeal is prosecuted, and the question presented for decision is whether the aforesaid property is liable to taxation under the laws of this Commonwealth.

The majority opinion of the court holds that the engine house and the fixtures, and the park property, aforesaid, are all exempt from taxation, and assumes that the same is public property, used for governmental purposes. I dissent entirely from the conclusion reached by the majority opinion. The engine, etc., is nothing more...