92 Ky. 89 | Ky. Ct. App. | 1891
delivered the opinion op the court.
The appellant, P. Zable, sues to enforce a lien against the property of tbe 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 ex-
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 hcec 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, eonstitu
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 character of taxation not ordinarily included within the meaning of that term. It proceeds upon the ground of equivalent benefits, and that it is no burden to pay for the improvement of a street in the ratio of benefits received.
It is said in Burroughs on Taxation, page 461 : “ The word tax, or taxes, does not include local assessments un
Another leading writer upon this subject says : “ It has been shown in another place that, while these local assessments are laid under a taxing power, they are not taxes in the ordinary understanding of that term, and that, consequently, the usual exemptions from taxation will not preclude the property exempted being subjected to them.” (Cooley on Taxation, 2d Ed., 650.) The adjudged cases are in accord with these writers. (Baltimore v. Cemetery Company, 7 Md., 517; Bridgeport v. Railroad Co., 36 Conn., 255; State v. Newark, 27 N. J. Law, 185; Patterson v. Society, 24 N. J. Law, 385.)
We have in this State a general statute exempting church property from taxation; but in the case of the Broadway Baptist Church, &c., v. McAtee, &c., 8 Bush, 508, it was held that such property in the city of Louisville was liable for its proper proportion of the cost of construction and reconstruction of streets. In that case the statute was a general one, applying to all church property, while here it is a private one relating only to
To say of property that it is “ exempt from all taxation by State or local laws for any purpose whatever ” certainly gives no greater exemption than to say that it is “ exempted from taxation of every kind,” and in enacting the statute in question the Legislature must be presumed to have known of the almost uniform construction that has been given to the word “taxation.” This being so, had it been intended to exempt the property of the appellee from being liable for its proper proportion of the cost of a benefit, which, as must be presumed, is directly conferred upon it by the construction of the street, the statute would have provided in express terms, that it should be exempt from local assessments. Such an intention can not fairly be inferred from the language used, and it must be presumed that the word “ taxation ” was employed in its legal sense._
It is said, however, that the petition is defective in that it fails to aver or show by any of the exhibits filed as a part of it, that the City Council fixed what should be the grade of the street. This objection is well taken. Tim copy of the city ordinance filed with the petition refers to another one, but no copy of it is filed, nor are its provisions set forth in the petition. It may and it may not fix the grade of the improvement. No presumption that it does is admissible. The Council could not abdicate
While, therefore, the second paragraph of the answer was, for the reasons indicated, open to demurrer, yet it should have been carried back and sustained to the petition, and the judgment is reversed, with leave to the parties to amend the pleadings and for further proceedings .in conformity to this opinion.