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Denhardt, 138 Ky. 238, 127 S. W. 785, Ann. [ for an amount not within the jurisdiction of Cas. 1912A, 1199.

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In Carey v. Sampson, Judge, 150 Ky. 460, 150 S. W. 531, Carey sought from this court a writ of prohibition to prevent Sampson, judge of the circuit court, from trying him under an indictment for practicing medicine without a license, the punishment for which offense is a fine not exceeding $50. The grounds chiefly urged by Carey for the writ were that, as Sampson had said in advance of a trial that he intended to find him guilty and would fine him, and there could be no appeal from the maximum fine to be assessed against him, in the absence of the writ of prohibition asked, he would be left without any adequate remedy. In denying the writ we held that the fact that no appeal is given by law from the judgment of an inferior court cannot affect the question of the propriety of the Court of Appeals' granting a writ of prohibition, since the legislative department of the state has the power of limiting the jurisdiction of this court as to appeals; the right of appeal being not an inherent right, but one that may be granted as a matter of grace, or withheld by the Legislature, in the exercise of its discretion. In the opinion it is, among other things, said: "In determining whether there is an adequate remedy, each case must be adjudged upon its merits. In Rush v. Denhardt, 138 Ky. 245 [127 S. W. 787, Ann. Cas. 1912A, 11991, this court said: 'If we should once lay down the rule that application by original proceeding might be made to us to stay the hand of the inferior jurisdictions, whenever in the opinion of counsel the ruling was prejudicial, although it might not leave the complainant without adequate remedy, we would have much of our time occupied in the settlement of questions that could be brought before us in the regular way by appeal. Inferior courts would be obstructed in the hearing and disposal of cases, and much confusion and uncertainty would follow.'

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this court, no appeal can be prosecuted from fact, no ruling to the contrary can be found, his judgment. It has long been held, and in that such a writ issued only to prevent the inferior tribunal from exercising, or attempting to exercise, a jurisdiction that does not belong to it. provides that this court "shall have power to isSection 110 of the Constitution sue such writs as may be necessary to give it general control of inferior jurisdictions." Under this provision it is claimed this court may rightthe question of jurisdiction in the inferior court, fully exercise the power of determining, not only but may go so far as to determine questions that necessarily belong to courts of original jurisdiction, and over which they have complete an appeal is allowed. It is not contended the control, subject to an appeal to this court where circuit court is without jurisdiction to try these indictments, and it must be conceded it has full and complete power to determine all questions pertaining to the trial made by counsel on either side. With such a latitudinous construction given this provision of the Constitution as we are asked to give, this court would convert itself into a tribunal of original jurisdiction, and in of the sufficiency of any pleading in a civil acevery case, as to the validity of indictments, or tion, this court could interfere and direct the inferior court as to what the judgment should be. If the statute imposing the penalty in such cases diction to so decide, or if the indictment or prohas been repealed the court below has the jurisceeding is defective the same power exists, so that there can be no reason for this court to interfere with the exercise of the rightful jurisdiction of any court except in cases where appeals are prosecuted, and it is only in cases where the inferior tribunal is beyond the bounds of its jurisdiction that this writ should go. The fact that no appeal is given cannot affect the question, because the legislative department of the state has the power of limiting the jurisdiction of this court as to appeals.'"

Here the question whether the plaintiff, in case of a refusal of the mandamus, has any other adequate means of relief cannot be considered, for there was a hearing of proof by the circuit court and decision that the service of process was not sufficient to bring the Old Dominion Steamship Company before the court. If correct in this decision, the court could not proceed to try the case, owing to its not having obtained jurisdiction of the person of the defendant. The question determined was jurisdictional, in the decision of which there was a complete exercise of the discretion of the court, which cannot be interfered with by the writ of mandamus; nor can the decision itself be reviewed by this court on an application for such writ.

"In the case before us the only element entering into the charge that plaintiff has no adequate remedy is the fact that no appeal will lie If, as claimed by the plaintiff, the circuit from the judgment which the circuit judge will judge erred in the decision rendered, that render against him, because the fine will be for fact would not authorize the granting of the an amount not within the jurisdiction of this mandamus; or if, as further claimed by her, court. The case, therefore, is on all fours with that of the Standard Oil Co. v. Linn, Judge [32 she were without right of appeal from the S. W. 932] 17 Ky. Law Rep. 833, where the decision, or other adequate remedy, the Oil Company, having been proceeded against un- granting of the mandamus would be equally der 65 separate indictments for buying and re- unauthorized; as in either event we would ceiving empty coal oil barrels without having be confronted with the fact that the circuit first erased therefrom the inspector's brand, which had been placed on them as required by judge had a discretion over the subject-matlaw, applied to this court for a writ of prohibi- ter involved in the question decided, and tion to arrest the proceedings. In overruling that, in making the decision, he exercised the application, this court, speaking through

Chief Justice Pryor, said: "The basis of the mo- such discretion, for which reasons no power tion rests upon the ground that his decision may exists in this court to compel, by mandamus,

We are unconvinced of the soundness of the plaintiff's contention that she has no other adequate remedy than the one here applied for. If, after the quashing of the return on the summons, she had advised the judge of the circuit court that she proposed taking no further step in the case, he doubtless would have entered judgment dismissing the action for want of jurisdiction of the person of the defendant, from which judgment, upon reserving the necessary exception, she could have taken an appeal to this court, and thereby obtained a review of the rulings of the circuit judge complained of.

Our conclusion that the plaintiff has not shown herself entitled to the writ of mandamus asked renders unnecessary and, indeed, improper the decision of the second question urged by her, viz., whether the service of summons was legally had upon the Old Dominion Steamship Company; so that question is not passed on.

For the reasons indicated, the demurrer to the petition is sustained, the writ of mandamus refused, and the action dismissed.

M. J. Holt and A. Scott Bullitt, both of Louisville, for appellant. Helm Bruce and Bruce & Bullitt, all of Louisville, for appellee.

MILLER, C. J. [1] The commonwealth brought this action to have the Kenyon Building, in the city of Louisville, assessed for taxation for the years 1906 to 1910, both included. The Kenyon Building is a modern, up-to-date office building, containing 87 offices. One of these offices is occupied by the appellee's agent in charge of the building, and the remaining 86 offices are rented to business men. The property is worth about $200,000, and brings a gross annual rental of from $16,000 to $18,000. It was devised to the appellee, the Board of Education of the Kentucky Annual Conference of the Methodist Episcopal Church, by Mrs. Fannie Speed. The appellee is a corporation, having in charge the educational work of the Methodist Episcopal Church in Kentucky. The corporation was created by a special charter of the General Assembly, approved January 15, 1867. Acts 1867, vol. 2, p. 622. Its governing board is made up of laymen and Methodist ministers. By the eighth clause of appellee's charter

COMMONWEALTH v. BOARD OF EDUCA- it is given control of all property constitut

TION OF METHODIST EPISCOPAL

CHURCH.

(Court of Appeals of Kentucky. Nov. 10, 1915.) 1. TAXATION 242-EXEMPTIONS - EDUCATIONAL INSTITUTIONS.

ing the educational fund of the Kentucky Annual Conference; and by the tenth section the administration of the fund is provided for in the way usual in charitable institutions of this character. By the eleventh An office building owned by a board of edu- clause of the charter it is directed that all cation of a church conference and used in part for offices for the owner, the rent from the re- the net interest, dividends, and rent arising mainder being employed in the partial support from said fund shall be used by the appellee, of a college maintained by the conference in an- under the general direction of the conference, other city, such college not being a religious in the payment of the salaries of teachers school, and no preference being given to the children of parents who were members of the and the cost of administration of any school church owning the office building, and having no or schools that may have been established theological course, nor requiring doctrinal or or maintained by the board, or in aid of religious qualifications from the teachers, is exempt from taxation under Const. § 170, providing that 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, shall be exempt from taxation.

worthy youths of either sex struggling to acquire an education, preference being given in the case of such aid-afforded students to such licentiates or candidates for the ministry as may be properly recommended by the quarterly conference of the circuit or station where they hold membership.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 394-403; Dec. Dig. 242.] 2. TAXATION 242-EXEMPTIONS-INSTITU- The defendant corporation conducts TIONS OF LEARNING.

The fact that a college operated and maintained by a church gives preference to students who are candidates for the ministry in the church, the college being otherwise nonsectarian, does not deprive it of its character as an institution of education within Const. § 170, providing that institutions of education when used or employed for gain shall be exempt from taxation.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 394-403; Dec. Dig. 242.]

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school called Union College, at Barbourville, in Knox county, and uses the rents derived from the Kenyon Building in its support. Union College is not a religious school, but is a regular educational school, and no preference is given to children of parents who are members of the Methodist Church. It has no theological course, but is a secular school of the character indicated by its name. And, although Union College charges a tu

Appeal from Circuit Court, Jefferson Coun-ition fee, it appears from the proof that this ty, Chancery Branch, Second Division.

fee is far from covering the operating expenAction by the Commonwealth of Kentucky ses of the school, which are supplemented by against the Board of Education of the Meth- funds derived from other sources. The inodist Episcopal Church. Judgment for de- come derived from the Kenyon Building confendant, and plaintiff appeals. Affirmed. stitutes about two-thirds of the entire income

of the board. Some of the teachers in Union, Nazareth Literary Benevolent Institution, College are Methodists, some are Presbyteri- 100 Ky. 519, 36 S. W. 994, 19 Ky. Law Rep. ans, and one is a member of the Christian 1102; and the subsequent case of CommonChurch; and all are paid salaries for their wealth v. Berea College, decided in 1912, and services. The course taught is a regular aca- reported in 149 Ky. 95, 147 S. W. 929. demic course, equivalent to that of the Louisville high school, and a collegiate course having a curriculum similar to colleges of that character. No question is ever asked a teacher concerning his religious affiliation, and no doctrinal features of the Methodist Church are taught, although Union College is under the auspices and operation and management of the Methodist Episcopal Church, because that church owns the property. The religious teachings consist of chapel exercises every morning.

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Whether the Kenyon Building is exempt from taxation depends upon the character of the appellee corporation and the use to which it puts said property, or its income derived therefrom. It will be observed that so much

of section 170 of the Constitution as is above quoted exempts from taxation two classes of property: (1) Institutions of purely public charity; and (2) institutions of education, not used or employed for gain by any person or corporation, the income thereof being devoted solely to the cause of education. It is not necessary in this opinion to consider whether the appellee is an institution of purely public charity, since we are of opinion it clearly comes within the second clause of exemptions above referred to, in that it is an institution of education whose property is not used or employed for gain, and the income thereof is devoted solely to the cause of education. In considering this question of exemption from taxation, it would be useless to discuss the cases decided under the Constitution of 1850, since section 170 of the present Constitution of 1891 made a change in this respect, and is, of course, controlling. The meaning, scope, and effect of section 170 of the present Constitution was discussed at great length by this court in 1897 in the cases of Trustees of Kentucky Female Orphan School, of Midway, v. City of Louisville, 100 Ky. 470, 36 S. W. 921, 19 Ky. Law Rep. 1091, 40 L. R. A. 119; City of Louisville v. Southern Baptist Theological Seminary, 100 Ky. 506, 36 S. W. 995, 19 Ky. Law Rep. 1100;

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It is sufficient to say, in passing, that the case of Widows' and Orphans' Home v. Bosworth, 112 Ky. 200, 65 S. W. 591, 23 Ky. Law Rep. 1505, relied upon by counsel for appellant, was expressly overruled in Widows' and Orphans' Home v. Commonwealth, 126 Ky. 386, 400, 103 S. W. 354, 31 Ky. Law Rep. 775, 16 L. R. A. (N. S.) 829; and also that the dissenting opinions in the Midway Orphan School Case and the Southern Baptist Theological Seminary Case, supra, are not to be now considered, unless this court should be of opinion that the decisions in those cases should be departed from. Indeed, counsel for appellant concedes that, if the law is as it was declared by the court in the majority opinion in the Midway Orphan School Case, and the like cases above mentioned, the judgment of the circuit court must be affirmed; but he now asks that those cases be overruled, although they have repeatedly been approved and followed by this court.

It has often been held by this court that the phrases "institution of purely public charity," or "institution of education," used in section 170 of the Constitution, embrace not only the buildings actually used in teaching, or actually used in administering charity, but that they also embrace all the property of the institution, wherever situated. taken from the opinion in the Midway FeThis appears from the following language male Orphan School Case, supra:

"We think, therefore, a proper construction of the language used in the section requires the exemption of the entire property of this institution, wherever situated, and in whatever form 36 S. W. 925, 19 Ky. Law Rep. 1091, 40 L. R. its investments may be found." 100 Ky. 489, A. 119.

In that case the school was located at Mid

way, while the property which the city of Louisville sought to assess was, of course, located within the corporate limits of the city of Louisville.

At the same time the court decided the case of the Southern Baptist Theological Seminary, reported in the same volume, which likewise involved the question of the right of the state to impose a tax on the property of the seminary located in Louisville, and certain lands and property not actually used in teaching, and some of which was situated in a distant county. The same ruling was there made, and all the property of the seminary, wherever located, was declared exempt from taxation. The reason for the ruling was, that it was the use to which the property, or the income therefrom, was put, that exempted it from taxation. use of the property and income for the purposes of education, although it was sectarian, exempted it from taxation under section 170

The

In Commonwealth v. Gray, 115 Ky. 665, | property used in its support does not come 74 S. W. 702, 25 Ky. Law Rep. 52, this court within the rule above announced. There is reaffirmed the Midway Orphan School Case and the Baptist Theological Seminary Case, as to the meaning of the word "institution," and called attention to the fact that the mere ownership of a building in which a school might be conducted, without the ownership of other property from which a revenue could be derived, might leave the institution entirely unable, for lack of money, to conduct the school. In speaking upon that subject, the court said:

no such qualifying restriction in the language giving the exemption; it speaks of “institutions of education"-not of nonsectarian institutions of education. The proof shows, moreover, that the only sense in which Union College may be said to be a sectarian school is the fact that it is owned by the Board of Education of the Methodist Church. But it further appears from the proof that its sectarian character begins and ends with its ownership. Belief in the doctrines of the Methodist Church is not made an essential for admission to the school, either as student or as teacher. In none of the divisions or branches of its curriculum are any of the branches of its curriculum are any of the doctrinal features of the Methodist Church taught in contradistinction from other denominations. As heretofore stated, the re

"It is not a complete definition to define 'institution' as simply a building or a plant or a body corporate. It may be all of these, but, more broadly speaking, it is that which is set up, provided, ordained, established, or set apart for a particular end, especially of a public character or affecting the community. So, when money or other property is set apart, the exclusive use and income of which is to be applied to the cause of education or pedagogy, the prop- ligious teachings consist of chapel exercises erty impressed with that character becomes an in the morning and the fact that the school institution, without regard to the particular is under Christian influences. Counsel for form of its investment. When the dedicator, in his munificence, sets apart property or a fund to this end, the people, in a kindred spirit, have declared by their organic law that such property, when so used without gain or profit to the giver or owner, shall be exempt from taxation." 115 Ky. 669, 74 S. W. 702, 25 Ky. Law Rep. 52.

Again, in Commonwealth v. Pollit, 76 S. W. 412, 25 Ky. Law Rep. 790, a fund of $12,000 held by trustees for the benefit of a school district was held exempt from taxation, because the income from it was devoted solely to the cause of education.

In Commonwealth v. Young Men's Christian Association, 116 Ky. 711, 76 S. W. 522, 25 Ky. Law Rep. 940, 105 Am. St. Rep. 234, this court again approved the ruling in the Midway Orphan School Case, supra, and held that certain property belonging to the Young Men's Christian Association in Louisville, but which was not actually used in operating the institution, was exempt from taxation because it was a part of the institution.

Again, in Louisville College of Pharmacy v. City of Louisville, 82 S. W. 610, 26 Ky. Law Rep. 825, where a part of the appellant's building was used by it for teaching purposes, and the remainder thereof was rented out to tenants, this court again reaffirmed the Midway Orphan School Case, supra, and held the entire property exempt.

To the same effect see German Gymnastic Association v. Louisville, 117 Ky. 958, 80 S. W. 201, 25 Ky. Law hep. 2105, 65 L. R. A. 120, 111 Am. St. Rep. 287; Norton v. Trustees, 118 Ky. 836, 82 S. W. 621, 26 Ky. Law Rep. 846; Commonwealth v. Hamilton College, 125 Ky. 330, 101 S. W. 405; and Book Agents of Methodist Episcopal Church South v. Hinton, 92 Tenn. 188, 21 S. W. 321, 19 L.

R. A. 289.

There can be no question, therefore, that this case comes within the rule laid down in the several cases above cited.

appellant, however, refer to that provision in section 11 of the amended articles of incorporation, which gives a preference to candidates for the ministry who may be "recommended by the quarterly conference of the

circuit or station where they hold membership," and contend that this feature of the charter makes appellee's school a sectarian When, howschool, and its property taxable. ever, the entire section is read, it appears that the language above referred to is merely a provision that, if there be any income left after paying the cost of caring for the trust. fund, and after paying the salaries of teachers and the general cost of administration,. the board is given the right to give some thing, in its discretion, in the aid of worthy youths of either sex struggling to acquire an education, preference being given in the case of said aid-afforded students to such licentiates or candidates for the ministry asmay be properly recommended by the quar-. terly conference of the circuit or station where they hold membership. But it is ob-vious that aid thus afforded is given strictly

in the cause of education; and the fact that in this one particular preference is given by appellee to candidates for ministry in the Methodist Church does not make it any the less an institution of education or take it out of the exemption afforded by section 170 of

the Constitution.

But this question is not an open one in this. jurisdiction. In the Southern Baptist Theological Seminary Case, supra, the Seminary property was held exempt from taxation, although it was used as a Baptist school: wherein the doctrines of that denomination alone were taught. On that subject this court said:

"The work of the institution is confessedly a pure charity, and we think it is no less a public [2] It is insisted, however, that Union Col- one. It is free to all, and, while under denomi[2] It is insisted, however, that I'nion Col-national control, so are nearly all successful lege is a sectarian school, and for that reason seats of learning, and this fact has never been

held to affect the nature of the charity. The peculiar tenets of this denomination are doubtless taught, but a belief of them is not required, and it is not made the test of admission."

The case at bar is stronger for the exemption than the Baptist Theological Seminary Case, supra; since here Union College does not teach the doctrines of the Methodist Church, as distinguished from other Christian doctrines, although it might do so and still be exempt under the rule laid down in the Baptist Theological Seminary Case. See, also, Burd Orphan Asylum v. School District of Upper Darby, 90 Pa. 21, quoted with approval in the Midway Orphan School Case, supra. This view of the case was made plain in Widows' and Orphans' Home of Odd Fellows v. Commonwealth, 126 Ky. 386, 103 S. W. 354, 31 Ky. Law Rep. 775, 16 L. R. A. (N. S.) 829, where the exemption was claimed upon the ground that the orphanage was a purely public charity, rather than an institution of education. In that case we said:

"The convention meant by the word 'purely' to describe the quality of the charity, rather than the means by which it is administered, that it should be wholly altruistic in the end to be attained, and that no profit or selfish interest should be fostered under the guise of charity; but it was never meant that, because a charity was limited by its terms to objects belonging to a certain sect or fraternal order, or color or class, it was a private, and not a public, charity. The members of the convention were wise and practical, and knew that men, as a rule, administer their charity through the organization or organizations to which they belong. Thus Catholics will naturally distribute their charity through the organization of the Catholic Church; Presbyterians through those of the Presbyterian Church; Masons through the organization of the Masonic order," etc.

And, as was said in Commonwealth v. Young Men's Christian Association, 116 Ky. 711, 76 S. W. 522, 25 Ky. Law Rep. 940, 105 Am. St. Rep. 234, the fact that some part of the expense in maintaining an institution is required to be paid by those who enjoy all its privileges does not change its character, since that regulation merely made it partly self-sustaining.

It follows that the judgment of the chancellor dismissing the petition was right, and it is affirmed.

company so organized, which executed a mortgage securing bonds aggregating $100,000, and plaintiffs executed their deeds to the company in consideration of "the sum of $10 and other considerations in hand paid," and received bonds at 80 cents on the dollar which showed on their face that the whole number of bonds aggregated $100,000. In the transactions plaintiffs, who were neither ignorant nor unlettered, had the for 2 years, drawing the interest thereon, but advice of an attorney. They retained the bonds after the company became in failing circumstances they brought a suit to cancel their deeds, or have it adjudged that they had a prior lien on the lands for the balance of the purchase money, alleging that it was represented to them that the mortgage, which covered lands in addition to their own, would secure only enough bonds to cover the purchase price of the mortgaged lands. There was no allegation, however, that any such provision was omitted from the option contract, and no such stipulation was therein contained. Held, that plaintiffs had no right to a priority of lien over innocent creditors and other bondholders, but had only the same rights and remedies as the holders of other bonds, no fraud having been shown, and there having been no relation of trust or confidence the interests of plaintiffs. imposing on the optionees the duty to protect

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Dig. 566.] 2. DEEDS 70-RESCISSION AND CANCELLATION-FRAUD.

The company's inability to make good its promise to repurchase the bonds at 90 cents on the dollar was neither a badge of fraud nor a ground for canceling the deed.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 165-182; Dec. Dig. 70.] CONVEYANCE TO 3. CORPORATIONS_437 CORPORATIONS BEFORE COMPLETION OF ORGANIZATION.

Where, pursuant to an option for the purchase of land stating that the conveyances were to be made to a company to be organized by the optionees, a deed was made on the day the charter was filed for record in the county clerk's office, and 12 days thereafter a certified copy of the articles of incorporation were filed for record with the secretary of state, the conveyance was valid as between the parties, though made before the organization of the corporation was complete.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 1773; Dec. Dig.

437.]

4. CORPORATIONS 34, 388 ESTOPPEL TO DENY CORPORATE EXISTENCE.

A person executing an obligation to a corporation cannot, in an action thereon by the corporation, deny that such a corporation had an existence, nor deny its power to contract, unless the contract be expressly forbidden by law.

YELLOW CHIEF COAL CO.'S TRUSTEE v. Cent. Dig. §§ 81-96, 1556-1567; Dec. Dig. [Ed. Note.-For other cases, see Corporations, 34, 388.]

JOHNSON et al.

(Court of Appeals of Kentucky. Nov. 11, 1915.)

1. CORPORATIONS 566-INSOLVENCY-PRIORITY OF CLAIMS-FRAUD.

Plaintiffs gave options to purchase land owned by them for $25 an acre, one-third to be paid in cash when the conveyance was made, and the remaining two-thirds in mortgage bonds of a corporation to be organized by the optionees at 80 per cent. of their par value. The option further provided that plaintiffs should have the option at any time after the expiration of 18 months, and within 24 months to sell the bonds to the company at 90 per cent. of their par value. The options were assigned to the

5. MORTGAGES

13-PROPERTY SUBJECT TO MORTGAGE-AFTER-ACQUIRED PROPERTY. As a general rule, a mortgage of property to be acquired in futuro is void as against mortgagors, creditors, or purchasers for value. Cent. Dig. § 15; Dec. Dig. 13.] [Ed. Note.-For other cases, see Mortgages,

6. MORTGAGES 12-PROPERTY SUBJECT TO MORTGAGE-OPTIONS TO PURCHASE.

Under Ky. St. § 2341, providing that any interest in or claim to real estate may be disposed of by deed or will in writing, an assignee of an option for the purchase of land had such an estate in the land as could be conveyed by mortgage, and, when it acquired the legal ti

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