Kilgus v. Trustees of Orphanage of the Good Shepherd

• Decision Date: 01 June 1893
• Citation: 22 S.W. 750,94 Ky. 439
• Parties: KILGUS v. TRUSTEES OF THE ORPHANAGE OF THE GOOD SHEPHERD. SAME v. TRUSTEES OF THE CHURCH HOME FOR FEMALES.
• Court: Kentucky Court of Appeals

22 S.W. 750

94 Ky. 439

KILGUS v. TRUSTEES OF THE ORPHANAGE OF THE GOOD SHEPHERD.

SAME v. TRUSTEES OF THE CHURCH HOME FOR FEMALES.

Court of Appeals of Kentucky.

June 1, 1893

Appeals from Louisville chancery court.

Two actions by John Kilgus, one against the trustees of the Orphanage of the Good Shepherd, and the other against the Church Home for Females, to enforce liens on defendants' property for the proportionate cost of improving an adjacent street. From judgments in defendants' favor, plaintiff appeals. Reversed.

H. S Barker and Lane & Burnett, for appellant.

Strother & Gordon, for appellees.

LEWIS J.

These two actions, brought by appellant against appellees respectively, were tried and determined by the lower court together, as will be done on this appeal. The object of each is enforcement of a lien on a lot of land for proportionate cost of improving an adjacent street by appellant in pursuance of an ordinance of the general council, and under contract with the city of Louisville. There is no question made in either action about his compliance with terms of that contract, nor as to correctness of the amounts assessed and fixed; but the ground relied on as defense in each case is exemption from such assessment existing in virtue of special acts of the general assembly. It appears that in 1858 H. P. Johnston conveyed to W. Cornwall and others, in trust, a lot upon which to establish an orphan asylum, to be used as a free home for educating and instructing indigent orphan boys in useful arts and trades; and in 1872 "an act to incorporate the trustees of the Orphanage of the Good Shepherd in the city of Louisville" was passed, whereby W. Cornwall and others, then trustees under the deed mentioned, were declared a body corporate, to whom the several county courts of the commonwealth were authorized to bind orphans upon terms agreed to. Section 6 of that act is as follows: "That all property now held for the benefit of said orphanage, and all which hereafter may be so held shall be, and the same is hereby, exempted from assessment and taxation under the revenue laws of the commonwealth, or under any ordinance, resolution, or other act of the city of Louisville, and all such property is hereby freed from future charge and payment of taxes to the state and to the city." In 1872 John P. Morton conveyed to James Craik and others a lot upon which were to be erected buildings suitable for a church home for females, an infirmary for females, an infirmary for males, and a chapel; and subsequently "An act to incorporate the Church Home for Females and Infirmary for the Sick" was passed, whereby James Craik and others were created a body corporate. Section 3 of that act is in the same language as section 6 of the first-mentioned act just quoted, differing from it only in application. The two institutions thus created being manifestly intended for purposes of purely public charities were by section 9, art. 1, c. 92, Gen. St., independent of the special acts, exempted from taxation for governmental purposes as well of the city of Louisville as of the commonwealth. But taxation for ordinary purposes of government does not properly comprise local assessment for construction of a street, and, as a consequence, exemption by statute from the first does not necessarily or properly involve exemption from the latter. Accordingly, in Baptist Church v. McAtee, 8 Bush, 508, it was held that exemptions made in the General Statutes in favor of church property apply only to taxation for general purposes of...