ation public property used for public pur- charitable committee, whose duty it shall poses; places actually used for religious be, on application, carefully to inquire into worship, with the grounds attached thereto the situation and circumstances of indigent and used and appurtenant to the house of brethren, their widows and orphans, and afworship, not exceeding one-half acre in cities ford them the necessary relief; for which or towns, and not exceeding two acres in the purpose they shall have power to draw on country; places of burial not held for private the treasurer in the recess of the lodge for or corporate profit, institutions of purely any sum, not to exceed $10 for any one perpublic charity, and institutions of education son, and they shall at the next meeting after not used or employed for gain by any person such relief has been granted report the same or corporation, and the income of which is to the lodge, which shall be entered on the devoted solely to the cause of education; minutes." 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 exceeding five years, as an inducement to their location."

On the return of the case to the court below, appellee filed an amended answer, setting up the defense that it is an institution of purely public charity. To this answer appellant filed a reply, to which the court below sustained a demurrer, and dismissed the

action.

The question in the case is therefore whether, under these facts, appellee is an institution of purely public charity, and as such exempt from taxation, under the section of the Constitution above quoted. By the statutes in force previous to the adoption of our present Constitution all property "devoted to charitable purposes" was exempt from taxation. Gen. Stat. p. 1036. If this rule was still in force, appellee's property would, under some authorities, be exempt, as it is, in one view, devoted to charitable purposes.

But the Constitution was intended to modify the exemptions theretofore allowed, and now only institutions of purely public charity are exempt. While this is a new provision in this state, it has long been in force in a number of other states. The purpose of its adoption in this state was to exclude from exemption all charities not purely public. The words "purely public" need no definition. They do not include any restricted or private charities. These may be very valuable, and the spirit prompting them is much to be commended; but the exemption of property from taxation had assumed such proportions at the time of the adoption of our present Constitution that it was seen fit not to exempt It appears from the record that appellee is property from taxation unless devoted to a the owner of a four-story brick building purely public charity. A Masonic lodge, and the ground on which it stands; that the which provides for its members and their lower floor is rented by the United States families, or the widows and orphans of those postmaster, and used as a postoffice at an who are dead, is a commendable private charannual rent of about $1,000; that the sec-ity; but it is in no sense purely public. This ond floor is rented out for offices and living rooms at an annual rent of about $700; and that the third and fourth floors are used by the association for the purposes of its organization. It also appears that only the first and second stories which were rented out were assessed for taxation. It is admitted in the reply that all of appellee's income and revenue is devoted-First, to the payment of the balance of debt for erecting the building sought to be taxed; second, to relieve distressed and indigent members of the Masonic order and their families. But it is alleged that the association, so far as it dispenses charity at all, confines itself exclusively to its members and their families, or, if the members are dead, to their widows and children, or to those who are directly or indirectly connected with the association; that it does not extend charity to all alike, or to those not in any way connected with the association; and that its charity is governed by the following by-law: "The master and wardens of this lodge shall constitute a

question has often been presented to the
courts, and, so far as we have seen, under
provisions like ours the decisions are uni-
form. The Constitution of Ohio is the same
as ours. In Morning Star Lodge No. 26, I.
0. 0. F. v. Hayslip, 23 Ohio St. 144, the facts
were substantially the same as here. The
court said: "A charitable or benevolent asso-
ciation, which extends relief only to its own
sick and needy members, and to the widows
and orphans of its deceased members, is not
'an institution of purely public charity,' and
its moneys held and invested for the afore-
said purposes are not exempt from taxa-
tion." The Constitution of Pennsylvania is
also the same as ours. In Philadelphia v.
Masonic Home, 160 Pa. 572, 23 L. R. A. 545,
28 Atl. 954, the question was whether the
property of the Masonic Home, open only to
those who were Masons, was exempt. The
court said: "When the eligibility of those
admitted is thus determined, it seems to us
the institution is withdrawn from public,
and put in the class of private, charities. A

charity may restrict its admissions to a class emption must be construed with the utmost of humanity, and still be public. It may be strictness, and that the party claiming it for the blind; the mute; those suffering un- must bring his case unmistakably within the der special diseases; for the aged; for in- spirit and intent of the exception, the court fants; for women; for men; for different said: "It is apparent that the defendant callings or trades by which humanity earns corporation cannot be regarded as a purely its bread; and, as long as the classification public charitable institution, because it is determined by some distinction which in- wants the essential elements of a public charvoluntarily affects or may affect any of the ity. It has other objects than charity. Whatwhole people, although only a small number ever its ultimate purposes, they are other may be directly benefited, it is public. But than charitable. Its funds are derived, not when the right to admission depends on the from devises and gifts as in case of a public fact of voluntary association with some par- charity, but from fees and the assessment of ticular society, then a distinction is made its members. The funds so obtained are to which concerns not the public at large. The be distributed among the poor and needy public is interested in the relief of its mem- members from whom they were collected, and bers, because they are men, women, and chil- among their wives and children. It is an dren, not because they are Masons. A home association for the mutual benefit of its without charge, exclusively for Presbyteri- members, and not a charitable institution, ans, Episcopalians, Catholics, or Methodists, within the meaning of the statute." In would not be a public charity. But then, to Babb v. Reed, 5 Rawle, 151, 28 Am. Dec. exclude every other idea of public as distin- 650, an Odd Fellows lodge formed for the guished from private, the word 'purely' is purpose of employing certain funds for the prefixed by the Constitution. This is to in- mutual benefit of its members and their famtensify the word 'public,' not 'charity.' It ilies was held not to be an association for must be purely public; that is, there must charitable uses. See also State ex rel. Richbe no admixture of any qualification for ad- ey v. McGrath, 95 Mo. 193, 8 S. W. 425; mission, heterogeneous, and not solely relat- State v. Central St. Louis Masonic Hall ing to the public. If this [charity] Asso. 14 Mo. App. 596. In Young Men's be purely public, then what is not purely Protestant Temperance & Benev. Soc. v. public? This is not a question to be decided Fall River, 160 Mass. 409, 36 N. E. 57, it was on sentiment; if it were, our inclinations held that a temperance society, which used would prompt to a different conclusion. But its funds exclusively for the benefit of its there is not much sentiment in the Constitu- members, was not exempt from taxation as tion. It is a barrier erected by the whole a charitable institution. The same rule was people against encroachments on the rights followed as to a Young Men's Christian Asof the people as a whole." In the previous sociation having a similar rule in New Jercase of Delaware County Inst. of Science v. sey, in Young Men's Christian Asso. v. PatDelaware County, 94 Pa. 163, an institute of erson, 61 N. J. L. 420, 39 Atl. 655, and in science for "the promotion and diffusion of Maine, in Auburn v. Young Men's Christian general and scientific knowledge among the Asso. 86 Me. 244, 29 Atl. 992; no question of community at large, and the establishment religious uses being made in either of these and maintenance of a library, and museum," cases. In South Carolina, in State ex rel. the benefits of which were restricted to mem- Hibernian Soc. v. Addison, and State ex rel. bers except upon conditions prescribed by a Grand Lodge of Ancient Free Masons v. Adboard of managers, was held not exempt from dison, 2 S. C. N. S. 499, the same rule taxation. The court said: "The plaintiff was followed, and it was held that neither in error, so far from being a purely public of the appellants was entitled to the exemp charity, is not a public charity at all. It is tion. Summing up the authorities, the a private corporation, for the benefit of its learned author of 12 Am. & Eng. Enc. Law, members, as much so as any other beneficial 2d ed. p. 343, says: “While there are decior literary society." In Bangor v. Rising sions to the contrary, the preponderance of Virtue Lodge No. 10, F. & A. M. 73 Me. 428, authority is in favor of the doctrine that an 40 Am. Rep. 369, a Masonic lodge was held exemption of benevolent and charitable instisubject to taxation under a statute much tutions does not extend to a society which broader in its exemption than our Consti- confines its benefits to members or their famtution. Among other things, the court said:ilies." The contrary decisions to which he "The just and honest rule in assessments refers are all under provisions exempting simfor governmental purposes is equality of tax-ply charitable institutions. In none of them ation. Whatever sacrifices it requires from was the exemption confined to institutions of the people should be made to bear as nearly purely public charity, and in several of the as possible with the same pressure upon all. cases this distinction is pointed out. The In this way only will there be the least sac- case of Henderson v. Strangers' Rest Lodge rifice by all. If one bears less than his share No. 13, I. O. 0. F. 17 Ky. L. Rep. 1041, 17 S. of the public burden, some other must bear W. 215, was decided under the statute then more. If one block of stores remains un- in force, which was materially different from taxed, the remaining stores and other taxable our present constitutional provision. The property must be unduly and disproportion- cases of Kentucky Female Orphan School v. ately taxed. The more numerous the exemp- Louisville, 100 Ky. 470, 40 L. R. A. 119, 36 tions the more unequal and burdensome the S. W. 921; Louisville v. Southern Baptist taxation." Then, after showing that an ex- Theological Seminary, 100 Ky. 506, 36 S. W.

1900.

995, and Louisville v. Nazareth Literary &
Benev. Inst. 100 Ky. 518, 36 S. W. 994, were
based on grounds not appearing in this case,
all these institutions being educational, and
not charities, restricted to the members of
any church or society; and, in view of the
plain intent of the Constitution, we are not
at liberty to extend the rule announced in
those cases to an institution like appellee.
There are many commendable organizations
owning a large amount of property, and do-
ing often much work of benevolence, such as
the Knights of Pythias, the Elks, the Odd
Fellows, the Red Men, Sons of Temperance,
and the like; but so long as they confine their
beneficence to their own members, or their
widows and orphans, or are not designed for
charitable 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
The section is
exempt from taxation.
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 al-
lowed by it cannot be extended by implica-

tion.

The judgment of the court below is therefore reversed, and the cause remanded, with directions to overrule the demurrer to the reply, and for further proceedings not inconsistent with this opinion.

Paynter, J., dissenting:

2.

man's property to pay the debt of another without giving any day in court, or as an unwarrantable interference with the right to make contracts.

A materialman who furnishes materials to another materialman is not entitled to any lien therefor, under Stat. § 2463, giving a lien for iabor performed or materials furnished under contract with the "owner, contractor, subcontractor, architect, or authorized agent."

(March 29, 1900.)

PPEAL by claimant from a judgment of the Circuit Court for Henderson County denying his lien for materials which went into a building erected for A. Waller & Co. Affirmed.

The facts are stated in the opinion.

Mr. R. H. Cunningham, for appellant:
The mechanics' lien law (Ky. Stat. §

2463), as amended by the act of March 21,
1896, is constitutional.

The validity of an act is presumed until its nullity is shown beyond reasonable doubt.

Collins v. Henderson, 11 Bush, 74; Cooley, Const. Lim. 216, 433, 434; Wellington, Peti tioner, 16 Pick. 87, 26 Am. Dec. 631; AlexOr. 512, 6 Pac. 70; ander v. People, 7 Colo. 155, 2 Pac. 894; Crowley v. State, 11 Kelly v. Meeks, 87 Mo. 396; Robinson v. Schenck, 102 Ind. 307, 1 N. E. 698; Talbot v. Hudson, 16 Gray, 417; Louisville v. Hyatt, 2 B. Mon. 178; Lexington v. McQuillan, 9 Dana, 513, 35 Am. Dec. 159; Waller v. Martin, 17 B. Mon. 191; Cumberland & O. R. Co. v. Barren County Ct. 10 Bush, 613.

The owner by his contract authorizes the contractor to procure all such material, and to have done such work, as is necessary; and settlement with the contractor is no defense to a claim of lien by the subcontractor and materialman.

I dissent from the opinion of the court in this case, because it disregards the doctrine enacted in the cases of Kentucky Female Orphan School v. Louisville, 100 Ky. 470, 40 L. R. A. 119, 36 S. W. 921; Louisville v. South-A. ern Baptist Theological Seminary, 100 Ky. 206, 36 S. W. 995; Louisville v. Nazareth Literary & Benev. Inst. 100 Ky. 518, 36 S.

IV. 994.

1. The lien given to a subcontractor,
materialman, or laborer by act March,

1896 (Ky. Stat. § 2463), though given ir
respective of any notice of the claim, or of

the state of the account between the owners
and the contractors, is not unconstitutional,
as to future contracts, as a taking of one

NOTE. For constitutionality of statute creating mechanic's lien in favor of subcontractors and materialmen, see also Merrigan v. English (Mont.) 5 L. R. A. 837; and Smith v. Neubauer (Ind.) 33 L. R. A. 685.

For rights of subcontractors, see also Monroe v. Hannan (D. C.) 3 L. R. A. 549: Schroeder v. Galland (Pa.) 7 L. R. A. 711, and note; and Glass v. Freeburg (Minn.) 16 L. R. A. 335,

and note.

Smith v. Newbaur, 144 Ind. 95, 33 L. R. 685, 42 N. E. 40; Phillips, Mechanics' Liens, 2d ed. § 33; Colter v. Frese, 45 Ind. 96; Barker v. Buell, 35 Ind. 302; White v. Miller, 18 Pa. 52; Neeley v. Scaright, 113 Ind. 316, 15 N. E. 598; Hamilton v. Naylor, 72 Ind. 175; Adams v. Buhler, 116 Ind. 100, 18 N. E. 269; Ferguson v. Despo, 8 Ind. App. 523, 34 N. E. 575: Kellogg v. Howes, 81 Cal. 170, 6 L. R. A. 588, 22 Pac. 509; Parker v. Bell, 7 Gray, 429; Weeks v. Walcott, 15 Gray, 54; Clark v. Kingsley, 8 Allen, 543; Cole Mfg. Co. v. Falls, 90 Tenn. 466, 16 S. W. 1045; Reeves v. Henderson, 90 Tenn. 521, 18 S. W. 242: Bardwell v. Mann, 46 Minn. 285, 48 N. W. 1120; Mallory v. LaCrosse Abattoir Co. 80 Wis. 170, 49 N. W. 1071: Albright v. Smith, 2 S. D. 577, 51 N. W. 590; French v. Bauer, 134 N. Y. 548, 20 L. R. A. 560, 32 N. E. 77: Jones v. Great Southern Fireproof Hotel Co. 58 U. S. App. 397, 86 Fed. Rep. 370, 30 C. C. A. 108.

On petition for rehearing.

The lien is given one who furnishes material by contract with, or by the written consent of, the owner, contractor, subcontractor, The lanarchitect, or authorized agent. guage used was simply to guard against a claim of lien for work or material not au

was effectual only in the event the owner was indebted to the contractor. It was entirely safe for the owner, without notice of the claims of others, to pay his contractor when he pleased, even in advance.

The present statute was clearly meant to fasten, and does fasten, on the property of the owner a lien for the claim of the subcontractor, materialman, and laborer, although the owner has no notice of such claims, and may owe the contractor nothing.

In Colter v. Frese, 45 Ind. 96, the same conclusion was reached after an exhaustive examination. So, also, in Hicks v. Murray, 43 Cal. 515, the court thought the act constitutional. To the same effect are the cases of Atwood v. Williams, 40 Me. 409; Gurney v. Walsham, 16 R. I. 699, 19 Atl. 323; Roanoke Land & Improv. Co. v. Karn, 80 Va. 589; Norfolk & W. R. Co. v. Howison, 81 Va. 125; Spokane Mfg. & Lumber Co. v. McChesney, 1 Wash. 609, 21 Pac. 198; Paine v. Tillinghast, 52 Conn. 532. So, also, in Maryland in Treusch v. Shryock, 51 Md. 162.

When applied to the facts of this case, assuming that Hightower is a materialman and Clark a subcontractor within the meaning of the statute, the law gives to HighAn elaborate and learned discussion of tower a lien on the lot and improvement of this question is found in Jones v. Great Walling & Co., without regard to the state Southern Fireproof Hotel Co. 58 U. S. App. of account between the owners and the con- 397, 86 Fed. Rep. 370, 30 C. C. A. 108, contractors or the contractors and Clark. sidered in the United States circuit court of This is, in effect, argue counsel, the taking of appeals before Judges Lurton and Taft and Waller & Co.'s property to pay the debt of District Judge Clark. After reviewing the another, and gives them no day in court, authorities, the learned judge (Lurton) and is, moreover, an unwarrantable interfer- said: But "the validity of such statutes ence with the right of Waller & Co. to make however, need not be rested upon mere ausuch contract as they pleased with Bailey & thority. They find sanction in the dictates Koerner, and discharge their obligations of natural justice, and most often adminiswhen and as they pleased. This contention ter an equity which has recognition under is not without authority to support it. The every system of law. That principle is that Ohio courts seem to so hold, and perhaps also everyone who, by his labor or materials, has the courts of Michigan. But the weight of contributed to the preservation or enhanceauthority seems the other way. In Laird v. ment of the property of another, thereby acMoonan, 32 Minn. 358, 20 N. W. 354, the quires a right to compensation. constitutionality of an act from which our The legal effect of the contract [between the act seemingly is copied is elaborately dis-owner and contractor] is to give a lien to all cussed and the act upheld. In Wisconsin who, at the instance of his contractor, shall the same conclusion was reached. Mallory be employed to furnish labor or materials v. La Crosse Abattoir Co. 80 Wis. 170, 49 N. W. 1071. So in Massachusetts, in Donahy v. Clapp, 12 Cush. 440; Bowen v. Phinney, 162 Mass. 593, 39 N. E. 283.

In Cole Mfg. Co. v. Falls, 90 Tenn. 466, 16 S. W. 1045, the court said: "It is true that a lien is provided for persons with whom the owner is supposed to have no direct contractual relations, but the fact alone does not invalidate the act; for the owner must be held to a knowledge of the existing law on the subject, and to the presumption that he employed the original contractor, and gave out his work with reference to that law. The right of lien to subcontractors and materialmen is, by operation of law, incorporated into and made a part of the owner's contract, as much as if expressly included and written therein. He contracts about a subject in which the law declares certain advantages to all persons concerned, whether by direct contract with him or by the employment of his contractor. The law declares that a lien shall exist in favor of the subcontractor and materialman in certain contingencies; hence the owner who makes the contemplated contract cannot justly complain of the legal result, especially when he receives the benefit of the labor and material of those for whom the lien is provided, and who often have no other means of compensation. The enforcement of this law does not necessarily result in loss to the owner, nor take from him something for nothing."

for the work which he has let out. So far
as such a statute is limited to future con-
tracts, it cannot be said to impair the obli-
gation of a contract. If the law be subject
to no other objections, it impairs no con-
tract, for all thereafter made are entered
into upon the basis of the law.
Neither can the owner be said to be thereby
deprived of his property without due process
of law. He has voluntarily made a contract
with the law before him. He has thereby
subjected his property to liability for cer-
tain debts of the contractor. His own vol-
untary consent is an element in the transac-
tion. He knows what the law is, and makes
a contract under the law. It is idle to say
that under such circumstances he is deprived
of his property without due process of law."

In Henry & C. Co. v. Evans, 97 Mo. 47, 3 L. R. A. 332, 10 S. W. 868, Judge Barclay, in an able opinion overruling a former and contrary opinion (Henry v. Hinds, 18 Mo. App. 497), sustained the validity of a statute similar to the Kentucky statute. Under the Nebraska statute the owner is liable for labor and material without regard to the state of the account between himself and the contractor. Ballou v. Black, 21 Neb. 131, 31 N. W. 673. So, in Nevada, Hunter v. Truckee Lodge, No. 14 I. O. 0. F. 14 Nev. 24.

In Phillips on Mechanics' Liens, 3d ed. § 65, the author thus states the doctrine: "The lien of the mechanic being a remedy by which the property of one man may be taken for the benefit of another, it necessarily fol