City of Philadelphia v. Barber

• Decision Date: 05 March 1894
• Docket Number: 37
• Citation: 160 Pa. 123,28 A. 644
• Parties: Philadelphia, Appellant, v. Barber
• Court: Pennsylvania Supreme Court

28 A. 644

160 Pa. 123

Philadelphia, Appellant, v. Barber

No. 37

Supreme Court of Pennsylvania

March 5, 1894

Argued January 6, 1894

Appeal, No. 37, July T., 1893, by plaintiff, from judgment of C.P. No. 3, Philadelphia Co., Sept. T., 1890, No. 60, on verdict for defendant, Frank Barber, owner, and Luther E Albert et al., trustees, registered owners. Reversed.

Sci fa. sur municipal claim for taxes, 1889. Before REED, J.

At the trial it appeared that the defendants Luther E. Albert et al. were trustees of a church known as the "All Saints Evangelical Lutheran Church." On Nov. 28, 1888, the trustees went into possession of a lot of ground with a brick and stone building thereon, under an agreement to purchase the lot and building. On March 1, 1889, a deed was made to them. At the time the agreement was made certain rooms were rented to the city of Philadelphia for school purposes. Counsel for defendant in his paper-book described the building as follows:

"The building is one structure, built of brick and stone; the front half of the building is two stories high, with cellar, the rear half is of the same height exteriorily as the front half, but is one clear story containing the auditorium, but has no cellar under it. This rear portion is used exclusively by the church for its worship; access to it is by means of a hallway through the front half; the first floor of front half is divided into two rooms used five days in the week by the public school. Over these on the second floor are two rooms; the front one is used by the school and the church, while the rear one is used exclusively by the church for religious worship. To reach these second-story rooms the same stairway must be used, and the rear one can only be reached by going through the front room used by the school. The entrances and exits to both floors are common to church and school; the cellar, in which all the heating apparatus for school and church is contained, is located under the front half of the building, access to which is common to both school and church."

Binding instructions for defendant were given.

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned was instruction, quoting it.

Judgment reversed and venire de novo awarded.

E. Spencer Miller, assistant city solicitor, Chas. F. Warwick, city solicitor, with him, for appellant. -- The question in this case is whether the act of 1874 should be interpreted as exempting all property possessed by owners of a given class or only properties devoted to a given benevolent occupancy. If a private dwelling house rented out for revenue to the tenant who will pay the highest rental, cannot be privileged from sharing a taxation, solely because its owner is a charitable individual or corporation, the conclusion would seem to follow that a part of the property here in question is taxable. The propriety of severance was approved in Young Men's Christian Association v. Donohugh, 7 W.N. 208.

Borough of Sewickley v. Sholes, 118 Pa. 165, is sometimes cited as an authority for the contention that the proviso to the act of May 14, 1874, P.L. 158, is, in every possible application, void as unconstitutional. Hence it is claimed that a given property chiefly occupied as a church or charitable institution, may be otherwise let out at rental or used in behalf of the corporation for the conduct of any profitable business, without any liability for taxes. It is believed that this is a very unwarrantable extension of the authority cited. This court there held the proviso to be unconstitutional so far as it might operate to impose a tax upon property which, before the passage of the act, was exempt. The constitutionality of that proviso, where it operates to limit the exempting effect of the body of the act, has never been and, it is submitted, cannot reasonably be questioned.

That annual real estate taxation takes effect at the beginning of each year would seem to have been long since well settled in this state: Shaw v. Quinn, 12 S. & R. 299; Hogg v. Longstreth, 97 Pa. 255; King v. Building Association, 106 Pa. 165.

Frank A. Hartranft, for appellees. -- Defendant's property is exempt: Act of May 14, 1874, P.L. 158; Art. 3, § 3, of the Constitution; Sewickley Borough v. Sholes, 118 Pa. 165.

The proviso of the act of 1874 only being unconstitutional, all of the act preceding the proviso being in harmony with the title, stands and remains the law to-day, and is therefore applicable to this case. Part of an act not within the subject stated in the title may be declared unconstitutional, leaving the rest to stand: Allegheny County Home's Case, 77 Pa. 77; State Line R.R. Co.'s Ap., 77 Pa. 429; Mauch Chunk v. McGee, 81 Pa. 433.

This proviso being the only law which authorized the levying of a tax upon property receiving an income that is otherwise exempt, and being bad, it leaves appellant without any law authorizing it to impose a tax upon this property.

A property owned by a private individual, and by him rented to a religious society for a place of religious worship, is exempt from taxation by the act of April 16, 1838, P.L. 525: Howell v. Phila., 8 Phila. 280.

Whatever is gratuitously done or given in relief of the public burdens, or for the advancement of the public good, is a public charity: Academy v. Taylor, 150 Pa. 565.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE MITCHELL:

The title of the church did not accrue until March, 1889, for whatever its equitable rights in the building may have been prior to that date, the deed was not made until then, and it does not appear in the evidence that the former owner did not receive, for his own use, the rent paid up to that time by the city for the rooms occupied by the public school. The most therefore that the church could claim in the way of exemption would be for the proportion of the tax due for the last ten months of the year. Whether the tax could be thus apportioned we do not decide. In general, taxes are assessed and payable early in the year for the entire year. In Moore v. Taylor, 147 Pa. 481, no tax had been assessed for the year, because at the time of the general assessment the property was used as a church and therefore exempt, but during the year such use had ceased, and it was held that the exemption immediately ceased, and the property became at once assessable in the hands of the purchaser for the remainder of the year. Whether the rule would work the other way, and exempt the property in the hands of the church from any part of the tax already assessed and due...