Louisville C. W. & Ry. Supply Co. v. Louisville

CourtCourt of Appeals of Kentucky
Writing for the CourtLassing
Citation146 Ky. 573
PartiesLouisville Car Wheel & Railway Supply Co. v. City of Louisville.
Decision Date01 February 1912
146 Ky. 573
Louisville Car Wheel & Railway Supply Co.
v.
City of Louisville.
Court of Appeals of Kentucky.
Decided February 1, 1912.
Appeal from Jefferson Circuit Court (Chancery Branch, First Division).

BURNETT, BATSON & CARY for appellant.

JOS. S. LAWTON and CLAYTON B. BLAKEY for appellee.

Page 574

OPINION OF THE COURT BY JUDGE LASSING — Affirming.


This litigation is the outgrowth of an effort on the part of the city of Louisville to collect taxes for the years 1909 and 1910 on the property of the Louisville Car Wheel and Railway Supply Company. The defendant, in its answer, pleaded that under section 170 of the Constitution, section 2988 of the Kentucky Statutes, and an ordinance of the city of Louisville, adopted July 29, 1898, it was exempt from the payment of taxes for a period of five years, and particularly for the two years for which the city sought a recovery. A demurrer was filed to this answer and sustained. The company declined to plead further and a judgment was entered in favor of the city for the taxes, interest and certain penalties, authorized by an act of the General Assembly adopted in 1910.

Two questions are raised upon appeal here. First, it is insisted that the trial court erred in sustaining the demurrer to the second paragraph of the answer, which pleaded these exemptions, and second, that the city is not entitled to recover penalties provided by the act of 1910.

The ground upon which the demurrer was sustained by the trial judge is not stated, but presumably it was because appellant's right to this exemption was not sufficiently pleaded. After setting up the provision of the Constitution, the act of the Legislature, and the ordinance of the city, passed for the purpose of carrying out these provisions, the answer alleges, that prior to September 1, 1908, the defendant located its plant on Seventh street in the city of Louisville and commenced to conduct a manufacturing business at said plant, that prior to said date, and after it had established its plant as aforesaid, it filed with the city assessor the statement provided for in the ordinance. But the answer nowhere states that it had not theretofore at some other point in the city of Louisville been engaged in the same character of business. It does not allege that the business in which it was engaged was a new manufacturing business in the city of Louisville, and unless it was a new manufacturing business it was not entitled to the exemption sought. For, as said by this court in Louisville & Nashville R. R. Co. v. City of Louisville, 143 Ky., 258, "The statute evidently contemplates the bringing to the city of Louisville a business that had not

Page 575

theretofore existed there * * * a new enterprise, a new manufacturing establishment."

For appellant it is urged that this omission in the answer is cured by the allegation therein that the defendant filed with the city assessor the statement provided for by section three of the ordinance, this allegation being set up in the following language:

"That said manufacturing establishment was a new one and was brought within the city limits since the passage of the act authorizing the exemption and that it was so located or brought within the city in good faith, with the intention of being continued permanently or for a longer period than five years."

True, the answer does allege that a statement embodying this language was filed with the city assessor. The law requires, before any manufacturing plant in the city shall be entitled to the exemption provided for in the ordinance, that it must file such a statement with the city assessor. The fact that such a statement was filed is merely an evidence that appellant was attempting to avail itself of the provisions of the act giving the exemption. But an allegation in the pleading that a statement containing these facts was filed with the city assessor is not sufficient. It was incumbent upon the pleader to affirmatively allege these facts in the answer, and this defect is not cured by the allegation that a statement embodying these facts was filed with the city assessor. It was incumbent upon the pleader to set up a state of facts which would show that it was entitled to the exemption. One of these facts was that it had filed the required statement with the city assessor. Other facts essential to show that it was entitled to the exemption are omitted. It was incumbent upon the pleader to set out every fact necessary to bring appellant within the provisions of the act in order to entitle it to the benefits thereof, and, having failed to do so, the demurrer was properly sustained.

Upon oral argument, and in brief as well, counsel for appellant insists that it was not fairly dealt with, because of a "gentleman's agreement" which its counsel had with the attaches of either the city assessor's office or the city attorney's office. It is not clear that any such agreement was made, but if it was, it was in open violation of section 52 of the Constitution, which provides that "The General Assembly shall have no power to release, extinguish or authorize the releasing or extinguishing,

Page 576

in whole or in part, of the indebtedness or liability of any corporation or...

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2 practice notes
  • State ex rel. Crutcher v. Koeln, No. 33128.
    • United States
    • United States State Supreme Court of Missouri
    • June 16, 1933
    ...Bateman, 78 Mont. 235, 253 Pac. 1100; City of Louisville v. Ry. Co., 63 S.W. 14; Louisville Car Wheel & Ry. Supply Co. v. Louisville, 146 Ky. 573, 142 S.W. 1046. (8) The act approved April 13, 1933, known as Senate Bill 80 should be construed so as to allow respondent his commission of ......
  • Sanderson v. Bateman, No. 6078.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 16, 1927
    ...or portion of either as it would have been to remit the tax itself. Louisville Car, Wheel & Railway Supply Co. v. City of Louisville, 146 Ky. 573, 142 S. W. 1043. But it is argued that chapter 63 had reference only to redemptions from tax sales; that, when the property was struck off to......
2 cases
  • State ex rel. Crutcher v. Koeln, No. 33128.
    • United States
    • United States State Supreme Court of Missouri
    • June 16, 1933
    ...Bateman, 78 Mont. 235, 253 Pac. 1100; City of Louisville v. Ry. Co., 63 S.W. 14; Louisville Car Wheel & Ry. Supply Co. v. Louisville, 146 Ky. 573, 142 S.W. 1046. (8) The act approved April 13, 1933, known as Senate Bill 80 should be construed so as to allow respondent his commission of ......
  • Sanderson v. Bateman, No. 6078.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 16, 1927
    ...or portion of either as it would have been to remit the tax itself. Louisville Car, Wheel & Railway Supply Co. v. City of Louisville, 146 Ky. 573, 142 S. W. 1043. But it is argued that chapter 63 had reference only to redemptions from tax sales; that, when the property was struck off to......

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