90 Pa. 21 (Pa. 1879), Burd Orphan Asylum v. Upper Darby School Dist.

Citation:90 Pa. 21
Opinion Judge:Mr. Justice TRUNKEY
Party Name:The Burd Orphan Asylum v. The School District of Upper Darby.
Attorney:Ludovic C. Cleemann, for plaintiffs in error A. Lewis Smith, for defendant in error Ludovic C. Cleemann and William Henry Rawle, for plaintiff in error
Judge Panel:Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.
Case Date:May 05, 1879
Court:Supreme Court of Pennsylvania
 
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Page 21

90 Pa. 21 (Pa. 1879)

The Burd Orphan Asylum

v.

The School District of Upper Darby.

Supreme Court of Pennsylvania.

May 5, 1879

         March 24, 1879

          Testatrix by her will provided for the establishment of an asylum, whose object should be the maintenance and education of white female orphan children, of not less than four years or more than eight: first, who shall have been baptised in the Protestant Episcopal Church, in the city of Philadelphia; second, the same class of children baptised in said church, in the state of Pennsylvania; third, all other white female orphan children, between the said years, without respect to any other description or qualification whatever, except that at all times, and in every case, the orphan children of clergymen of the Protestant Episcopal Church shall have the preference. The will contained further directions, that the form of worship and instruction should be that observed and taught in the Episcopal Church, and appointed the bishop of said church and his successors the perpetual visitor. Held, that the asylum is a " purely public charity," within the meaning of section 1, article 9 of the constitution, which provides, that the legislature may exempt from taxation institutions of purely public charity, and that said institution was within the letter of the Act of May 14th 1874, and therefore exempt from taxation.

         Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

         Error to the Court of Common Pleas of Delaware county: Of January Term 1877, No. 50.

         Case stated, wherein the School District of Upper Darby was plaintiff, and the Rector, Church-wardens and Vestrymen of St. Stephen's Church in the City of Philadelphia, Trustees of the Burd Orphan Asylum of St. Stephen's Church, were defendants.

         The case as stated was as follows:

         Eliza Howard Burd, deceased, late of the county of Philadelphia, by her last will and codicils thereto, proved April 11th 1860, devised and bequeathed, inter alia, to the defendants, who are a corporation, a large amount of property in trust " to establish an asylum for poor white female orphans," to be called " The Burd Orphan Asylum of St. Stephen's Church." The will thus declares the object of the asylum:

" The objects of the said asylum shall be to maintain, educate, and at a suitable age and time (to be judged of and determined by those to whose management I have intrusted the asylum), to place out to be instructed in proper employments--First, the white female orphan children of legitimate birth, of the age of not less than four years, and of not more than eight years, who shall have been baptised in the Protestant Episcopal Church in the city of Philadelphia. Secondly, the same class of children baptised in the said church in the state of Pennsylvania; and thirdly, all other white female orphan children, of legitimate birth, not less than four years of age, and of not more than eight years, without respect to any other description or qualification whatever, except that at all times, and in every case, the orphan children of clergymen of the Protestant Episcopal church shall have the preference." * * *

" I desire, and do hereby direct, that in the building erected for the asylum, there shall be an apartment prepared and set apart as a chapel, to be kept sacred for the worship of Almighty God, Father, Son and Holy Ghost, in conformity with the rites and ceremonies of the Protestant Episcopal Church. And I do hereby positively direct and enjoin that all the children received into the asylum, shall be faithfully instructed, as part of their education, in the principles of the precious gospel of my God and Saviour Jesus Christ, as they are held and taught by the Protestant Episcopal Church in the United States, and that no other system of religion shall be taught there; and moreover, that all the worship held therein shall be according to the ritual of said church, and no other." * * *

" The rector, church-wardens and vestrymen of St. Stephen's Church are hereby authorized to control and manage the said Burd Orphan Asylum according to their best judgment and discretion, and to adopt regulations for the government of the same, provided their proceedings shall not be in conflict with the laws of the Commonwealth of Pennsylvania, with the principles and canons of the Protestant Episcopal Church, or with the directions herein given and the objects herein specified; and the Right Reverend the Bishop, for the time being, of the Protestant Episcopal Church of the diocese in which the city of Philadelphia may be, is authorized to be and constituted a perpetual visitor of said institution, with full power to inquire, as such, into all abuses and violations of this trust, and, whenever deemed necessary by him, to interfere by legal proceedings for their correction."

         The defendants, upon the receipt of the property thus devised and bequeathed them, purchased a piece of land in Delaware county aforesaid, containing something less than forty-five acres, and erected thereon a building for an orphan asylum, which building was first occupied in September 1863.

         Since that time the asylum has been open continuously for the reception of white female orphan children, according to the provisions of the will, who have been received without regard as to their residence as to either state or county. These children are maintained and educated at the asylum until they arrive at the age of eighteen years. The whole number of children that have been received and enjoyed the benefits of the asylum is one hundred and twenty, sixty of whom are at the present time being maintained and educated at the asylum.

         Connected with the asylum is a church or chapel, capable of seating four hundred persons, in which divine service is held twice a day every Sunday, according to the rites and ceremonies of the Protestant Episcopal Church, the said services being conducted by a duly ordained minister of that church; and these services are, by direction of the trustees, free to all, and attended by many of the neighbors as their parish church.

         With the exception of the chapel, so used as aforesaid, the land and buildings of the asylum are devoted exclusively and entirely to the maintenance and education of the orphan children received into the asylum, in accordance with the provisions of the will. A copy of said will is hereto annexed and made part hereof.

          The defendants are a corporation, incorporated May 21st 1823, under the Act of Assembly of April 6th 1791, in such case made and provided, by the title of " The Rector, Church-wardens and Vestrymen of St. Stephen's Church in the City of Philadelphia."

         There have been levied upon the real and personal property of the defendants, as trustees aforesaid, according to the adjusted valuation thereof furnished by the commissioners of Delaware county, as per schedule hereto annexed, for school purposes, taxes for the years 1874, 1875 and 1876, amounting in the aggregate to $232.13, the amount for each year being stated in said annexed schedule. These taxes were levied by the plaintiff in June of each year, for the said three years respectively, and are admitted to be correct apportionments of the said taxes on the amount of real and personal property belonging to the defendants, but which the said defendants object to paying on the ground that the said property is exempt from taxation under the laws of the Commonwealth.

         If the court shall be of opinion that the real and personal property of the defendants, used as aforesaid, is thus taxable for the benefit of the school directors of Upper Darby, then judgment to be entered for the plaintiffs for the sum of $232.13, or for such part thereof as the court shall determine the said property is taxable for, according to the schedule annexed. If the court shall be of opinion that the said property is not thus taxable at all, judgment to be entered for the defendants. Costs to follow the judgment, and either party reserving the right to sue out a writ of error.

         The court, Clayton, P. J., delivered the following opinion:

" The defendants are the trustees of a charitable institution, founded by Eliza Howard Burd. They claim that, under the constitution and laws of Pennsylvania, their property is exempt from the payment of school tax. The ninth article of the constitution of Pennsylvania declares that all taxes shall be uniform upon the same class of subjects, but that the legislature may, by general laws, exempt ‘ institutions of purely public charity,’ and that all laws exempting other than the property enumerated therein shall be void. Under this power in the constitution, the legislature, by general law, Act of May 14th 1874, P. L. 158, exempted from taxation ‘ all hospitals, universities, colleges, seminaries, academies, associations and institutions of learning, benevolence, or charity, founded, endowed and maintained by public or private charity.

         In order to ascertain the true sense of this enactment, it must be construed in conformity with the foregoing clause of the constitution, and must therefore be read as though the words ‘ purely public’ were inserted after the words " benevolence or charity.' To read the act in any other way would be clearly unconstitutional. All that the constitution requires is, that the object of the institution shall be a purely public charity. It may be founded, endowed and maintained by private charity; that is to say, by private benevolence, good-will, liberality and alms-giving. Most public charities are so endowed: 2 Kent 274. The only question, therefore, to be now decided is, whether the institution of which the defendants are the trustees is a ‘ purely...

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