Thomas v. City of Elizabethtown

• Decision Date: 05 November 1965
• Citation: 403 S.W.2d 269
• Court: United States State Supreme Court — District of Kentucky
• Parties: R. R. THOMAS, County Court Clerk, et al., Appellants, v. CITY OF ELIZABETHTOWN, Appellee.

Page 269

403 S.W.2d 269

R. R. THOMAS, County Court Clerk, et al., Appellants, v. CITY OF ELIZABETHTOWN, Appellee.

Court of Appeals of Kentucky.

Nov. 5, 1965.

As Modified on Denial of Rehearing June 24, 1966.

W. Burton Cowley, Hardin County Atty., Elizabethtown, Cyril E. Shadowen, William S. Riley, Dept. of Revenue, Frankfort, for appellants.

J. Howard Holbert, Elizabethtown, William T. Carroll, Owensboro, for appellee.

HILL, Judge.

This is an appeal from a judgment exempting appellee, a fourth-class city, from the payment of taxes under KRS 138.460 on automobiles purchased by the city for municipal use.

Here is the pertinent part of the above statute:

'(1) A tax levied upon ninety percent of its retail price at the rate of three percent shall be paid on the use in this state of every motor vehicle, except those exempted by KRS 138.470, at the time and in the manner provided in this section.'

KRS 138.470 exempts vehicles sold to the United States or to the Commonwealth of Kentucky and vehicles registered or licensed in this state during the same or immediately preceding license period.

Prior to July 1, 1960, KRS 138.470 expressly exempted cities and other political subdivisions from the payment of this tax. By the 1960 amendment, the Legislature clearly demonstrated its intention not to exempt cities. There is no exemption, then, unless Section 170 of the Constitution of Kentucky provides one. It states: 'There shall be exempt from taxation public property used for public purposes * * *.'

In City of Louisville v. Cromwell, 233 Ky. 828, 27 S.W.2d 377, (1930), this Court thus stated the cardinal rule of interpretation:

'It seems to be the universal rule, and which is admitted by counsel for both sides in this case, that exemption from taxation is a matter of grace, to be granted or withheld by the sovereighty levying and collecting the tax, either by constitutional or statutory provisions. * * *'

And the same opinion so clearly states the proper rule of construction of such an exemption, we quote further:

'The general rule applicable to asserted rights of exemption from taxation is that the language of the instrument coferring the exemption must be strictly construed, since the right is a carved out one for the benefit of the claimant and which is not enjoyed by the inhabitants generally, and it is therefore a species of conferred special privilege which must be clearly stated and set forth before it will be given. * * *' (Emphasis added.)

Not only does the rule of strict construction apply to the kind of property, but the rule applies equally to the character of tax included in the exemption. We quote further from Cromwell cited by appellants:

'* * * the rule of strict construction applicable to rights of exemption from taxation applies, not only to the existence of the right at all, but likewise to its scope; i.e., the character of taxes to which the exemption applies. So that, although the right may be clearly given as to a particular class of property, still, unless the exempting language be such as to extend it to all classes of taxes, it will be confined to the one wherein it is so clearly made to appear. With the law in the condition, as so declared by the cited text authorities, we repeat that it would seem to clearly appear, under the strict construction rules above referred to, that the exemption provided for in section 170 of the Constitution refers only to ad valorem taxes. * * *' (Emphasis added.)

Let us see now whether appellees are exempt under Section 170. This involves a definition of what is meant by 'public property,' 'public purposes,' and 'ad valorem.' To take the easy phrase first, there can be little doubt but that the police automobiles are used by the city for purely 'public purposes.' Neither can we detect any mystery or uncertainty in the meaning of 'property.' Now, let us determine what is meant by 'ad valorem' tax. Webster's New International Dictionary, Second Unabridged Edition, defines 'ad valorem' as: 'Literally, according to the value;--used especially to designate a duty or charge laid upon goods at a certain rate per cent upon their value as stated in their invoice, in opposition to a specific sum upon a given quantity or number; to designate an assessment of taxes against property, etc.' This definition fits the tax in question like a pocket in a shirt. The rate is three per cent of ninety per cent of the value; so, it is clearly a tax based on value.

Inasmuch as Cromwell, supra, relied on so heavily by appellants, held that a flat rate per gallon tax on gasoline was not exempt under Section 170, we should undertake, if we may, to distinguish the Cromwell case from the case at bar. First, it was found in Cromwell that Section 170 applied only to an ad valorem tax. There the tax rate was a flat one per gallon, regardless of whether it be 'regular or ethyl,' 'octane or otherwise.' The question of value did not enter into the Cromwell tax; hence, the levy in Cromwell was not ad valorem. Therefore, the conclusion we reach herein, that the tax in question violates Section 170 of the Constitution, is not in conflict with the opinion in City of Louisville v. Cromwell. Of course, the distinction is fine, but we do not intend to be boastful or apologetic when we say that often the wheels of justice must grind 'exceedingly fine.' See also City of Owensboro v. Commonwealth, 105 Ky. 344, 49 S.W. 320, 44 L.R.A. 202 (1899); and Board...