Broadway Christian Church v. Com.

Opinion of the court by JUDGE HOBSON — Affirming. The Broadway Christian Church, of Lexington, Ky., owns- a lot in that city, not exceeding one-half acre in quantity, on which is erected a house for religious worship, and also a parsonage. The parsonage was not occupied by the minister, but was rented out. The minister [451] owned another house in Lexington, in which he resided; and, by an arrangement between him and the trustees of the church, the parsonage was rented out, and the rent -paid to him. The parsonage was assessed for taxation while it was thus used. The sheriff, who hadi the taxes in his hands for collection, began the first of these actions by a proceeding under section 4184, Kentucky Statutes, garnishing the tenant of the property and the treasurer of the church. Thereupon the trustees of the church, filed the second action, enjoining the sheriff from collecting the taxes' on the ground that the property was exempt from taxation. The circuit court held that the property was not exempt, and the church has appealed. By section 174 of the Constitution, all property, whether owned by natural persons or corporations, shall be taxed in proportion to its value, unless .specifically exempted. Exemptions from taxation are regulated by section 170, which is as follows: “There shall be exempt from taxation public property used for public purposes; places actually used for religious worship, with the grounds attached thereto and used and appurtenant to the house of worship, not exceeding one-half acre in cities or towns, and not exceeding two acres in the country; places of burial not held for private or corporate profit, institutions of purely public charity, and institutions of education not used or employed for gain by any person or corporation, and the income of which is devoted solely to the cause of education; public libraries, their endowments and the income of such property as is used exclusively for their maintenance; all parsonages or residences owned by any religious society, and occupied as a home, and for no other purpose, by the minister of any religion, with not exceeding one-half acre of [452] ground in towns and cities and two acres of ground in the country appurtenant thereto; household goods and other personal property of a person with a family,- not exceeding two hundred and fifty dollars in value; crops grown in the year in which the assessment is made and in the hands of the producer; and all laws exempting or commuting .property from taxation other than the property above mentioned shall be void. The General Assembly may authorize any incorporated city or town to exempt manufacturing establishments from municipal taxation, for a period- not exceednig five years, as an inducement to their location.” It is insisted for the church that the parsonage is exempt under this section, on two grounds: First, places actually used for religious worship, with the grounds attached thereto, and appurtenant to the house of worship, not exceeding one-half acre in cities and towns, are not to be taxed; second, all parsonages or residences owned by any religious society, and occupied as a home, and for no .other purpose, by the minister of any religion, are exempt. 1. The first ground has been often passed upon by the court under provisions substantially the- same as that quoted. The use of the property, 'and not the ownership, determines the question of exemption. Vail v. Beach, 10 Kan., 214. Business houses erected on the church lot and rented out are not exempt. Orr v. Baker, 4 Ind., 86. Parsonages are not exempt, although erected on a portion of the church lot which would otherwise be exempt, and occupied by Ihe minister free of rent, if the language of the exemption only includes places actually used for religious worship, with the grounds attached thereto, and appurtenant to the house of worship. Methodist Episcopal Church v. Ellis, 38 lnd., 3; St. Mark’s Church v. City [453] of Brunswick, 78 Ga., 541, 3 S. E., 561; St. Peter’s Church v. Scott Co. Com’rs, 12 Minn., 395 (Gil., 280); Hennepin Co. v. Grace, 27 Minn., 503, 8 N. W., 761; First Presbyterian Church v. City of New Orleans, 30 La. Ann., 259, 31 Am. Rep., 225; State v. Axtell, 41 N. J. Law, 119; Gerke v. Purcell, 25 Ohio St., 248; Ramsey Co. v. Church of Good Shepherd (Minn.), 47 N. W., 783, 11 L. R. A., 175; St. Joseph’s Church v. Assessors of Taxes, 12 R. I., 19, 34 Am. Rep., 597. The authorities on this point seem to be unanimous. The taxation of all property is just. Exemption from taxation must not be enlarged .by construction, for the presumption is that the State has exempted, in terms, all the property it intended should escape taxation. City of Louisville v. Board of Trade, 90 Ky., 414 (12 R. 397) 14 S. W., 408, 9 L. R. A., 629; Kilgus v. Orphanage of Good Shepherd, 94 Ky., 444 (15 R. 318) (22 S. W., 750); Cooley, Tax’n, 205. Under this rule, a church parsonage can not be included under an exemption of “places actually used for religious worship, with the grounds attached thereto and used and appurtenant to the house of worship.” It remains, therefore, to determine whether the parsonage in question is exempt upon the second ground. 2. 'The parsonage, for years after it was constructed, was used as a residence by tbe minister, but has not been used by the present pastor, for the reason that he preferred to live elsewhere. It has, therefore, beén rented out for $37.50 a month, and the question is whether the property while it is so .rented is- included by the exemption of “all parsonages or residences owned by any religious society, and occupied -as a home, and for no other purpose, by the minister of any religion.” The property is not occupied as a home by the minister. It can not be said [454] that it is used for no other purpose, for it is in fact rented out for gain. If this parsonage, while it is so rented out, is exempt on the ground that the minister does not care to live in it, and. that he prefers to receive the rent rather than the use of the property, the same rule would apply if the minister was' not a housekeeper, or if he did not reside in the State at all, or if the church had no minister, and desired to rent out the house for the benefit of the future pastor that it might thereafter employ. When the framers of the Constitution undertook to define in exact terms what should be exempt we are not at liberty to add to the terms which they selected with so much care and precision. They saw fit to exempt only parsonages occupied as a home, and for no other purpose, by the minister of any religion; and, if we depart from the narrow limits of exemption which they have set, we in so far destroy that equality of taxation which they so laboriously aimed to attain. We therefore conclude that the learned circuit judge properly held the parsonage, while thus rented out, subject 'to taxation. It is insisted that under section 4184, Kentucky ‘Statates, the ‘Sheriff is only authorized to institute the proceeding if he “believes he can not otherwise collect the tax.” There is nothing in this case to show that the sheriff did not so believe. The presumption is that the officer did his duty. The taxes were past due. The taxpayer was denying liability, and we do not see that the officer had not just grounds for proceeding by garnishment. Judgment affirmed.