Zable v. Louisville Baptist Orphans' Home

• Decision Date: 06 October 1891
• Citation: 92 Ky. 89
• Parties: Zable v. Louisville Baptist Orphans' Home.
• Court: Kentucky Court of Appeals

92 Ky. 89

Zable v. Louisville Baptist Orphans' Home.

Court of Appeals of Kentucky.

October 6, 1891.

APPEAL FROM LOUISVILLE CHANCERY COURT.

N. G. ROGERS FOR APPELLANT.

O'NEAL, JACKSON & PHELPS FOR APPELLEE.

CHIEF JUSTICE HOLT DELIVERED THE OPINION OF THE COURT.

The appellant, F. Zable, sues to enforce a lien against the property of the appellee, the Louisville Baptist Orphans' Home, for its proportion of the cost of constructing an alley abutting it under a contract with the city of Louisville.

The answer denies the averments of the petition, and in a second paragraph avers that it is a corporation conducted solely for charity, realizing no profit from its investments; and that its charter, which ante-dates the ordinance under which the improvement was made, in consideration of public services exempts its property from all taxation for any purpose. A demurrer to this paragraph was overruled; and the plaintiff declining to plead further, the action was dismissed as to the appellee.

The judgment, as copied into this record, does not expressly so order, but it overrules the demurrer; recites that the plaintiff declined to plead further, and, after excepting to the judgment, prayed an appeal to this court, which was granted, the case being retained for further proceedings against the other defendant, the city of Louisville. With some hesitation we shall treat this as a final judgment as to the appellant, and therefore consider the appeal. The court evidently so intended it; the parties so regarded it, and have so treated it in argument in this court.

Under the charter of the city the proper averment in a petition of all the steps leading to the creation of such a lien, when supported by such exhibits as were filed in this instance, creates in the face of a mere denial a prima facie case. Hence, if the petition was sufficient and the defense set out in the second paragraph insufficient, the plaintiff was, in the absence of testimony, entitled to judgment.

It is claimed, first, that if a good defense upon the score of exemption in fact existed, it was not sufficiently pleaded. The answer did not set forth the exemption statute in hæc verba, nor did it refer to it by stating its title and the time when it became a law. It is a private statute, and section 119, sub-section 2 of the Civil Code provides: "In pleading a private statute it shall be sufficient to refer to it by stating its title and the day on which it became a law." A party relying upon such a statute must at least state this much, and the plea was defective in this respect. As the case must go back for another hearing it is not improper to consider other objections to the plea. To do so will doubtless expedite the case.

It is urged that the appellee renders no public service, and that, therefore, the Legislature could not, constitutionally exempt it from taxation. It is, however, a charity, and as such renders a public service. Its very name indicates its object, and entitles it to privilege and gratitude. It is the duty of the State to care for its indigent orphans, and if done by another, he renders what is properly a public service, and the Legislature may, therefore, without regard to the extent of it, exempt the property devoted to such use from taxation. Examination shows, however, that the provision of the statute intended to be relied upon reads thus: "The property, money and estate and rights of said corporation shall be exempt from all taxation by State or local laws, for any purpose whatever." (Acts 1869-70, volume 1, page 181.) While the language is broad, yet it really amounts to no more than saying that the appellee shall be exempt from all taxation. The word "tax" does not embrace a local assessment. Something more is needed, showing that such was the legislative intention. Such a purpose, inasmuch as it imposes an additional burden upon others, should appear with reasonable certainty. Exemptions are of grace. They are to be strictly construed, and can embrace only what is clearly within their terms.

While the right to levy a local assessment, as, for instance, to pay for a street improvement in a town or city, is derived from the taxing power, yet it is a distinct...