136 Ky. 232 | Ky. Ct. App. | 1910
Opinion of the Court by
Reversing-
This appeal involves the right of the commonwealth to tax the wharf, market house, and two public cemeteries owned by the city of Paducah.
The right of the commonwealth to assess for taxation public cemeteries, or the unsold portions thereof and the funds accumulated from the sale of lots therein, was considered by this court in the case of Negley v. City of Henderson, 55 S. W. 554, 21 Ky. Law Rep. 1394, and Commonwealth v. Lexington Cemetery Co., 114 Ky. 165 70 S. W. 280, 24 Ky. Law Rep. 924. In the former case it was held that the unsold lots in the cemetery were not exempt from taxation, but this opinion was rested upon the ground “that the averments of the petition do not show that the lot in question is exempt from taxation because of the absence of an averment that it is not held for profit, ’ ’ and section 170 of the Constitution only exempts places of burial not held for private or corporate profit. Undoubtedly, under the state of case presented by the pleadings, that case could hot have been decided otherwise. In the case of the Commonwealth v. Lexington Cemetery Co. there was involved the right of the commonwealth to assess a fund which had accumulated in the hands of the cemetery company from the sale of lots, amounting to some $30,000 or $40,000. This, the court held, was subject to taxation, although in that opinion it is expressly stated that the place of burial is exempt from taxation. In other Avords, the court there decided that the constitutional provision did not exempt from taxation a fund which had been
In the case under consideration it is shown that all of the money realized from the sale of such lots as have been sold, and the total income from the rentals received from the new cemetery, are expended upon the cemetery grounds. There is no fund on hand, and the city realizes no profit therefrom.' It is clear that the only purpose of the city in owning these cemeteries at all is to furnish to such of its citizens as are able to pay therefor a suitable burial lot at a nominal cost, and to furnish to such as are not able to pay therefor burial lots free of cost. It exercises a general supervision over these cemeteries, and sees that they are properly kept, and that no nuisance is committed thereon. As lots are sold off, they become the property of their respective purchasers, though at all times under the supervision and” control of the city, and the city continues to look after and care for and improve its walks and ways and otherwise adds to its beauty and adornment. It is this feature that makes the public ownership of burying grounds especially attractive, for, if this duty devolved upon the individual owners of the lots therein, the grounds would soon become neglected, and, as owners died or moved from, the immediate locality, there would be left no one having any direct interest in the care of the cemetery, and it would soon become grown up in underbrush, briars, and weeds, a place more fitting for the abode of varments and reptiles than a resting place for our dead. In earlier times there were no public cemeteries other than the potters’ fields, where the city’s pauper dead were buried. All who were able were buried in private burying grounds. So
Clearly these cemeteries are not taxable, unless the manner in which they are governed by the city takes them out of the exempted class. As lots are sold, the money is collected by the city, and all of it is expended upon the grounds, in their policing, keeping, and care. Upon this feature of their .management much stress is laid. It is true that the city receives the money therefor. And for this reason, it is urged, the property is held for profit, and that, even though no profit remains to the city after the expenses incurred by it in the management and cafe of the cemetery, this fact does not exempt the property from taxation. Section 170 of the Constitution expressly exempts places of burial from taxation where they are not held for profit. Since the city derives no profit from these cemeteries, but uses all of the income derived therefrom and more in their maintenance, we are unable to see how it can be claimed that they are held for profit. The question is much simplified if we will look at it from another stand]Doint. Suppose, instead of selling the lots to individuals at from $25 to $50 per lot, according to location, size, etc., and spending this money in caring for and beautifying the cemetery, the city would say to one desiring to purchase a lot, “You may have a lot, valued at from $25 to $50, provided you will do from $25 to $50 worth of work, according to the value of the lot.selected by you, upon the cemetery grounds.” Here the city would be receiving no money whatever, and yet the result, so far as the cemetery is concerned, would be the same. The citizen would be
The pleadings in the case under consideration take it beyond the rule announced in the Henderson Case, supra, and there is no allegation or proof which would bring this ease within either the letter or the spirit of the Lexington Case. "We are of opinion that neither of the cemeteries ’should be taxed.
The only remaining question is: Should the market place and house be taxed? The market place is essential to the material welfare of the citizens. It furnishes a place where the gardeners and fresh meat venders may display their goods for inspection and sale under such reasonable regulations as 'the city authorities may prescribe. As an incident to the proper conduct of a market place, we invariably find the-market house or stalls, where, upon stated days of the week, the great bulk of the vegetables, fruit, and fresh meats upon which the inhabitants of the city live are publicly exposed for inspection and sale. If any are found to be unfit for use, they are promptly condemned, and their vender suitably punished. The public health is thereby protected and promoted. The handling of this great quantity of vegetable and animal matter necessarily creates and leaves upon the market place much waste and decayed material. This has to be removed and the street and space kept in a clean and sanitary condition, necessarily entailing .upon the city a considerable expense. This expense, or rather extra expense, is met by the imposition of a rental charge for the use of the market
We are of opinion that the market place, house, and stalls are held and maintained for a purely public purpose,and the collection of the charges made against those who use them is but an incident to, rather than an evidence of the purposes for which they are maintained. This being so, the property should not be taxed. Wherefore, the whole court sitting, the judgment is reversed and cause remanded for proceedings consistent herewith.