
    Case 47 — Action by Commonwealth against Broadway Christian Church to Recover Taxes Consolidated with Broadway Christian Church against. E. T. Gross to Enjoin the Collection of Taxes —
    Jan. 8.
    Broadway Christian Church v. Com. and Trustees Broadway Christian Church v. Gross.
    APPEAL FROM FAYETTE CIRCUIT COURT.
    Judgment for Plaintiff in the Former Action and for Defendant in the Latter, and ti-ie Losing Parties Appeal.
    Affirmed.
    Taxation — Exemption of Church Parsonage — Collection of Taxes by Garnishment.
    Held: 1. Under Constitution, .section 170, exempting from taxation “places actually used far religious worship, with the grounds attached thereto and used and appurtenant to the house of worship,” and '“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,” a church .parsonage which is not occupied by the minister, but is rented to another, is not ■ exempt, though erected on the church lot, .and though' the rent .is pal'd to the minister.
    2. Under Kentucky Statutes, section 4184, authorizing the sheriff to (institute a garnishment proceeding for the collection of taxes if he, “believes he can not otherwise collect the tax,” it will ■be presumed, 'in .support of euch .a proceeding, that the sheriff ■did so believe, where the taxes were past due, and the taxpayer was denying liability.
    MORTON & DARNALL, foe appellants. .
    These causes, by consent of parties are heard together. The question upon the merits is the same in each case.
    The judgment in the county court proceedings may properly be reversed for errors not necessarily involving the determination of the main question on the merits at issue between the parties to the appeal.
    The proceedings in the county court were unauthorized and unnecessary. The sheriff could not have been prejudiced by waiting the conclusion upon the appeal in the injunction suit before beginning proceedings in the county court ’ for the collection of the tax. It should affirmatively appear from the proceedings that the sheriff, at the time he filed his statement in the county court and procured -the garnishment, believed that such proceedings were necessary to secure the collection of the tax (sec. 4184, Kentucky Statutes.) Moreover, i,t appears in this record, that the appellant, at all times, was the owner of property more than sufficient to pay the tax .claimed.
    But appellant more particularly insists, that the judgment In both cases, should be reversed upon the merits of the question involved.
    The tax sought to be collected is based upon an assessment of the “parsonage”-owned by appellant, and built upon a lot of less than one-half acre, and on which lot is located a house of religious worship used by appellant. The parsonage was given over to the minister for his own use and benefit, and was occupied by him as an actual residence until the years 1896 and 1897, when the minister being the owner of another residence, leased the parsonage to a tenant selected by him, collected the rents land appropriated same to his own use.
    The appellee contends, inasmuch as the parsonage, during said period, was not actually occupied as a home by the minister, it became subject to taxation and this view of the ease was taken by the lower court.
    ■Section 17 of 'the Constitution, and section 402G, Kentucky Statutes, both provide as exempt from taxation: “Places actually used for religious worship, with the grounds attached thereto, and used and appurtenant ito the house of worship, not exceeding one-half 'acre in cities, &c.”
    A parson or minister is a necessary adjunct to the proper conduct of -a‘ place of religious worship, and a parsonage is as necessary to the parson as the parson is to the church.
    J. D. & G. R. HUNT, roe appellee.
    Statement of propositions discussed and authorities cited in support thereof.
    1. Taxation of . all property is the general rule, and exemptions of property from taxation will be strictly construed. Gity of Louisville v. Board of Trade, 90 Ky., page 414; Kilgus, &c. v. Trustees of Orphanage of Good Shepherd, 94 Ky., 444;' Cooley on Taxation, page 205.
    2. A parsonage or residence, occupied as a home by a minister, ■is n,o.t a place actually used for religious worship, and a fortiori is not such a place when occupied as a home by a lay'man, though the rents may be used by the" minister for secular purposes. Orr v. Baker, 4 Ind., 86; Vail v. Baker, 10 Kansas, 166; Trustees of the Methodist Episcopal Church v. Ellis, 38 Ind., 3; St. Peter’s Church v. County of Scott,- 12 Minn., 295; St. Mark’s Church Wardens v. Mayor of Brunswick, 78 Ga., 541; State v. Bo-ard of Assessors, 26 Southern Reporter, 877; City of Louisville v. Board of Trade, 90 Ky., page 409; First Presbyterian Church v. City of New Orleans, 31 Am. Rep., 225; St. Joseph’s Church v. Assessors of Taxes, 34 Am. Rep., 597; Id., 12 R. I., 19; Gerke v. Purcell, 25 Ohio St. Rep., 248; ' ■State, Church of Redeemer v. Axtell, 41 N. J. L., 119; 32 N. J. L., 360; 38 N. J. L., 323; In re Grace, S Northwestern Rep., 761.
   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 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 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 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 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.  