Argued
March 26, 1891
APPEAL
BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 1 OF
PHILADELPHIA COUNTY.
No. 106
January Term 1891, Sup. Ct.; court below, No. 27 June Term
1889, C.P. No. 1.
To the
number and term stated of the court below, the city of
Philadelphia, to the use of John Mack, brought scire facias
against the Contributors to the Pennsylvania Hospital, upon a
municipal claim for curbing laid in front of defendant's
property, on the west side of Forty-second street.
The
defendant filed an affidavit of defence, averring that the
claim of the plaintiff for curbing was a tax levied and
assessed against the defendant; that defendant was
incorporated by act of May 11, 1751, 1 Sm. L. 208; that, by
the acts of March 19, 1845, P.L. 187, and April 18, 1853
P.L. (1854) 834, its estate and property were expressly
exempted from all taxation. The affidavit then proceeded:
"6.
Defendant further avers that the real estate in question
forms part of a large tract of land, the whole of which is in
actual continuous daily use and occupation for the purposes
of an insane asylum for males and females, belonging to and
exclusively managed by the Contributors to the Pennsylvania
Hospital, and upon this tract are erected the various
buildings in which the said insane patients live. The whole
of the remainder of this tract of land forms the grounds
immediately around the said hospital building, and the entire
tract, including the whole piece against which this lien is
filed, is annexed to and necessary for the occupancy and
enjoyment of the same, and actually lies within the high
walls which have been built to prevent the escape of insane
patients, while affording them the amplest opportunity for
recreation and exercise.
"This
tract, as well as all the rent-and profit-producing property
of the defendant, both real and personal, has been and is
appropriated entirely and exclusively for the purposes
specified in its act of incorporation, namely, the
'relief of the sick and insane poor;' and neither the
president nor any of the directors of the corporation get any
salary or emolument of any kind for managing and
superintending the affairs of the institution, nor can any
profit be derived from the property of the said corporation
directly or indirectly, or can be obtained from any
connection therewith.
"7.
That the said corporation has no capital stock; and there is
annually more money expended by the institution, in carrying
out the purposes of its incorporation, than is received from
all sources of its income; and this deficit is made up by
annual contributions and donations made to it from time to
time by private individual donations and contributions.
"8.
That the said corporation is maintained by voluntary
contributions from its members and others, and from the
income derived from the capital accumulated from time to time
by gifts, devises, and bequests.
"9.
That no distinction is made in the reception of patients by
the defendant on the ground of sex or color, and the said
corporation is a charitable trust open to the public
indefinitely and conducted without a view to corporate or
individual profit, and is an institution of purely public
charity, and no such profit arises, but it is founded
endowed, and maintained by public and private charity.
"10.
The department of this corporation known as the hospital for
the insane, heretofore referred to in paragraph 6, is
conducted for the same charitable objects as the hospital for
physical injuries and disease, between Spruce and Pine
streets and Eighth and Ninth streets, in the city of
Philadelphia.
"All the funds of the institution, unless especially
earmarked, may be devoted, at the discretion of the board of
managers, in whole or in part, to the maintenance of either
or both of these institutions, there being no difference in
the method of management between the two institutions.
Separate books are kept solely for the purposes of
convenience, and to ascertain the cost of carrying on the
various branches of each department, for the department in
West Philadelphia and in the city proper; but the use of the
funds of the institution for the support and maintenance of
either or both these institutions, as well as the amount to
be devoted to each, lies solely within the discretion of the
board of managers.
"The
whole institution, including the insane department in West
Philadelphia and the hospital in the city, is purely and
exclusively charitable, and no profit of any kind is derived
in any way, directly or indirectly, from either of these
departments.
"11.
In order to extend as widely as possible the benefits of the
charity, those applicants for admission, both to the hospital
at Eighth and Spruce streets and to the insane department in
West Philadelphia, who can afford to do so, are required to
pay a fee which shall, as nearly as possible, represent the
actual cost to the institution of the board of such patient,
together with a reasonable charge for the lodging of such
patient, and for the use by such patient of the plant of the
defendant; but the total charged to any patient in no case
exceeds the actual cost to the hospital of such patient's
maintenance, including such charge for lodging.
"12.
Many patients are admitted absolutely free, both in the male
and in the female department, and both in the hospital and
insane department.
"If
the institution were a private corporation carried on for the
purpose of profit, and if all persons admitted to it paid an
amount equal to the average amount paid by all the pay
patients, the institution as a whole would be operated at a
very heavy loss, the excess of expense over average amount
paid being nearly double."
Statements
were exhibited showing the value of each parcel of land owned
by the hospital, the receipts from pay patients, and the
deficits made up from contributions, general or special.
After
argument, the court, BIDDLE and BREGY, JJ., without opinion
filed, made absolute a rule for judgment for want of a
sufficient affidavit of defence; whereupon the defendant took
this appeal, specifying that the court erred:
1. In
entering judgment against the defendant.
Judgment affirmed.
Mr.
George W. Biddle (with him Mr. H. G. Ward), for the
appellant:
1. This
case is wholly different from Wilkinsburg Bor. v. Home
for Aged Women, 131 Pa. 117, where the question was upon
the construction of the borough act authorizing borough
officers to compel lotowners to abate nuisances in front of
their premises. It was not a question whether an assessment
for the original laying of the sidewalks would be a tax or
not. The decision was put upon the ground that, under §
13, act of April 3, 1851, P.L. 320, the law casts directly
upon the property owner a duty to repair sidewalks, in...
