
    Case 18 — Action by Widows’ and Obehans’ Home oe Odd Fellows, to Enjoin the Collection oe Taxes on its Property —
    Dec. 3.
    Widows & Orphans’ Home of Odd Fellows v. Bosworth, Sheriff.
    APPL'AL FROM' FAYETTE CIRCUIT COURT.
    JUDSMENT FOE DEFENDANT AND PLAINTIFF APPEALS.
    AFFIRMED.
    Taxation — Exemptions—Private Charity.
    Held: An institution intended to provide a home for destitute widows and orphans of deceased Odd Fellows of the State, and such .other persons as that order may commit to its charge, is a private charity, and -therefore not exempt from taxation under Constitution, -sec. 170, exempting from taxation institutions of purely public charity.
    HOBBS and FORMER, for appellants.
    The lower court sustained a demurrer to plaintiff’s petition upon the ground that the petition shows on its face that appellant institution'is not one of "purely public charity.”
    We contend the court erred in this ruling, and that our contention is sustained by abundant authority.
    We maintain- that appellant is a purely public charity within the meaning of the Constitution. Purely, has been held- by this court, to be equivalent to wholly; wholly means in a whole or complete manner, entirely, completely, perfectly.
    While it does not admit within its precincts the whole of humanity, of whatever kind or cl-ass. still it does admit and protect a certain portion of the whole public; that is, indigent widows and orphans of deceased Odd Fellows, and it must be remembered that there -are more than 11,000 Odd Fellows in Kentucky, and more than 500,000 in the United States.
    These beneficiaries constitute a part of the whole public. If appellant is not an institution of purely public charity within the meaning of the Constitution, .then it may he said that charity, under our organic 1-aw, is required to bear the same burden as enterprises conducted for gain and profit — that those who give their money for philanthropic purposes and for the protection and maintenance of the unfortunate,' -and -those who invest their means to increase their fortune, occupy the same plane in law, and their status is equal under the Constitution. 100 Ky., 470, 506; 150 Pa. St, 565; 90 Pa. St., 21 Constitution, sec. 170.
    W. P..KJMBALD, FOR APPELLEE.
    (No brief.)
   Opinion op the court by

JUDGE HOBSON

Affirming.

The question to be determined in this ease is whether appellant’s property is exempt from taxation on the ground that the institution is one of purely public charity, under section 170 of the Constitution; “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 no't exceeding two acres in the country; places of burial not held for private nr 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 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 of not exceeding five year®, as an inducement to their location.” ■ Appellant is a corporation having its principal office and place of business at Lexington, Ky. The object of the corporation is to provide and maintain in the State of Kentucky a home for destitute widows- and orphans of deceased Odd Fellows- of the State, and. such other persons as- may be committed to its charge. It is the owner of about thirty acres of land lying partly in the city of Lexington and partly in the county of Fayette. On this real estate there are a three story brick building, and other necessary structures, us-ed as a home for destitute widows and orphans. It also owns the furniture and furnishings in the house, about eighteen cows, -and one horse and wagon, all used for the support -and maintenance -of the home and its inmates. There is no profit derived from the property. The corporation has no income except such as is derived from voluntary donations -and an assessment of the Independent Order of Odd Fellows. There are now in the home sixteen children and one widow, all of whom are totally dependent upon charity.

It is evident, o-n these facts, that the institution is an admirable charity, but this is not enough to exempt it under the Constitution. It is not exempt unless .an institution of purely public charity. In City of Newport v. Masonic Temple Ass’n., 21 Ky. Law Rep., 1785 (56 S. W., 105), (49 L. R. A., 252), this court said: “There are many commendable organizations owning a large amount of property, and doing often much work of benevolence, such -as the Knights of Pythias-, the Elks, the Odd Fellows, the Red Men, S'ons of Temperance, and the like; but so long as they confine their beneficence to their own members' or their widows and orphan®, or are not designed for ch-aritable purposes purely public, they can not be regarded as institutions of purely public charity, within the meaning of our Constitution. To so hold would be to give substantially no effect to the words “¡purely public’ in that instrument, and leave few, if any, private charities which would not be exempt from taxation. The section is framed so minutely that it is impossible to escape the conclusion that it was designed to narrow exemptions from taxation, and to limit them to the objects expressly named. It must be fairly construed with a view to promote its purposes, and the exemptions allowed by it can not be extended by implication.” At the time the Constitution was adopted much property in the State was escaping taxation. The purpose of section 170 was to remedy this evil. It exempts from taxation places actually used for religious worship, and residences owned by a religious society and occupied by the minister, not exceeding one-half acre in cities and towns, and two acres in the country. It exempts places of burial not held for private or corporate profit, institutions of purely public charity, and institutions of education not used for gain by. any person or corporation. It is argued that institutions of charity are to be exempt when no gain or profit is made from them; but, in construing so solemn an instrument as the Constitution of the State, the court can not assume that words are used idly. Place's of burial are exempted when not held for private or corporate profit, and institutions of education are also exempted when not used or employed for gain by any person or corporation; but as to institutions of charity a different phrase is used, and only institutions of purely public charity are exempted. The Constitution is not to .be strictly construed, but fairly, and with a view to effectuate its intent. The framers of the Constitution knew very well there were many ins-titutions of private charity which were doing much good, and were maintained by voluntary contribution®, without gain or profit. If they liad designed to exempt these institutions, they had only to retain the phraseology o>f the law then long in force, which exempted “public schools, churches, and all property of seminaries, asylums, hospitals, infirmaries and colleges and all -other funds devoted to charitable purposes ’and church parsonages, public cemeteries, except those owned by joint stock companies or associations which declare' a dividend. Provided nothing herein shall be construed as exempting any property which is used' or employed f-or gain of any person, nor any property of which the products-, rents or uses are not devoted solely to the objects of the institution as contradistinguished from personal gain of the individuals connected with the institution.” General Statutes, p. 1036. The, radical change that they made of phraseology, and the careful limitations imposed, show not only an intent-ion to exclude from exemption much property that had been exempt, but to define with great precision where -exemptions should cease. They evidently intended to change the rule which exempted all property which was -devoted to charita: Me purposes, and from which no profit -or gain was- m-ade, and to exempt only institutions of purely public charity. T-he purpose of the institution maintained by appellant is to provide a home for the widows -and -orphans of the Odd Fellows of the State. It i-s true that in the charter the object of the corporation is stated .to be to provide and maintain a home for destitute widows and -orphans of deceased Odd Fellows of the State of Kentucky, and such other person's as may be committed to its -charge; -but what other persons may be committed to its charge, or when or by whom, is not shown in the record. The fair meaning of tbe clause is that the institution^ is to be a home for the destitute 'widows and orphans of the Odd Fellows of the State, and such other persons as they may commit to its charge. . In other words, it is a charity maintained by the Odd Fellows for the benefit of such, persons as they may see fit to admit to its enjoyment. This is strictly a private charity, and is not exempt from taxation by the Constitution.

Judgment affirmed,

whole court sitting.

Chief Justice Paynter, dissenting.

Petition for rehearing by appellant overruled.  