Trustees of Widows' and Orphans' Fund of Beattyville Lodge No. 304, I.O.O.F. v. Blount

• Decision Date: 24 January 1928
• Citation: 222 Ky. 717,2 S.W.2d 394
• Parties: TRUSTEES OF WIDOWS' AND ORPHANS' FUND OF BEATTYVILLE LODGE NO. 304, INDEPENDENT ORDER OF ODD FELLOWS, v. BLOUNT, Marshal of Beattyville.
• Court: Kentucky Court of Appeals

2 S.W.2d 394

222 Ky. 717

TRUSTEES OF WIDOWS' AND ORPHANS' FUND OF BEATTYVILLE LODGE NO. 304, INDEPENDENT ORDER OF ODD FELLOWS, v. BLOUNT, Marshal of Beattyville.

Court of Appeals of Kentucky

January 24, 1928

Appeal from Circuit Court, Lee County.

Suit by the Trustees of Widows' and Orphans' Fund of the Beattyville Lodge No. 304, Independent Order of Odd Fellows against Charles Blount, Marshal of Beattyville, to enjoin collection of taxes. Plaintiffs' petition was dismissed on demurrer, and they appeal. Reversed.

S. P Stamper, of Beattyville, for appellants.

H. L Wheeler, of Beattyville, for appellee.

WILLIS J.

The question involved on this appeal is whether or not certain real estate situated in Beattyville, Lee county, Ky belonging to the appellants as trustees of the widows' and orphans' fund, Beattyville Lodge No. 304, Independent Order of Odd Fellows, is exempt from municipal taxation under section 170 of the Constitution of this state. The petition of the trustees, seeking to enjoin the appellee, the city marshal, from collecting taxes assessed upon the property by the city, was dismissed on demurrer, and the facts are undisputed.

The Independent Order of Odd Fellows maintains a home for the widows and orphans of deceased members of the order. The local lodge has accumulated a fund for the benefit of the institution, and this fund is dedicated solely to the support and maintenance of the home. It is not used in any way for the purposes of the local lodge, but is a purely charitable fund, irrevocably devoted to the beneficent objects stated. A portion of this fund has been invested in a lot in Beattyville, upon which a garage has been erected, and from which a small income is received, and applied to the purposes of the charity. No private pecuniary benefit is derived from the use of this property.

The appellee relies upon the case of Merrick Lodge No. 31, Independent Order of Odd Fellows, v. City of Lexington, 175 Ky. 275, 194 S.W. 92, in which this court held that the property of a lodge which is maintained for the benefit of its members, and the dispensation of charity is merely incidental, is not exempt from taxation. Other cases are to the same effect. City of Newport v. Masonic Temple Association, 108 Ky. 333, 56 S.W. 405, 21 Ky. Law Rep. 1785, 49 L. R. A. 252; Vogt v. City of Louisville, 173 Ky. 119, 190 S.W. 695, Ann. Cas. 1918E, 1040; Benevolent Association of Elks v. Wintersmith, 204 Ky. 20, 263 S.W. 670.

But clearly such decisions do not determine the question involved on this appeal. The property of the widows' and orphans' home is not the property of the local lodge although the fund was provided originally by the lodge. It is not the origin or ownership of the property, but the use to which it is put, that determines its immunity from taxation. Section 170 of the Constitution exempts nine classes of property, one of which is "institutions of purely public charity." In Trustees of Kentucky Female Orphans' School v. City of Louisville, 100 Ky. 470, 36 S.W. 921, 19 Ky. Law Rep. 1091, 40 L. R. A. 119, it was held that the exemption of the institution from taxation by section 170 of the Constitution included the corporate being with its estate as an entirety, and embraced all its property wherever situated, or in whatever form it might exist. In Widows' & Orphans' Home of Odd Fellows v. Commonwealth, 126 Ky. 386, 103 S.W. 354, 31 Ky. Law Rep. 775, 16 L. R. A. (N. S.) 829, it was held that the widows' and orphans' home of the Odd Fellows was an institution of purely public charity, and all of its property devoted to the purpose for which it was created was exempt from taxation. In that case a right to tax $4,000 of the funds of the home which had been lent as an investment was asserted, but denied by this court. In...