Donohugh's Appeal

• Decision Date: 04 March 1878
• Parties: Donohugh's Appeal. Donohugh <I>versus</I> The Library Company of Philadelphia.
• Court: Pennsylvania Supreme Court

86 Pa. 306

Donohugh's Appeal. Donohugh versus The Library Company of Philadelphia.

Supreme Court of Pennsylvania.

February 18, 1878.

March 4, 1878.

February 18th 1878.

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

Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1878, No. 136.

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J. Howard Gendell, Assistant City Solicitor, and Wm. Nelson West, City Solicitor, for appellant.—The duties of the Board of Revision are confined to mere valuations, and have no relation whatever to questions of liability to or exemption from taxation: Act of March 14th 1865, Pamph. L. 320, Purd. Dig. 1375, pl. 123; Act of February 2d 1867, Pamph. L. 137, Purd. Dig. 1378, pl. 137; Act of April 12th 1873, Pamph. L. 715. Purd. Dig. 1821, pl. 4. All the acts of exemption were repealed by the new constitution: Londonderry v. Berger, 7 Legal Gazette 231. The Act of 1874 is an enabling act, and to be construed strictly against exemption: Academy of Fine Arts v. Philadelphia, 10 Harris 496. That act was intended to limit exemptions to charities of a "purely public character." This library is not a charity within the meaning of the constitution and the act, because it is endowed by the sale of stock and maintained by annual subscriptions, and has a profit or revenue derived from the hire of books. And as the members have privileges not enjoyed by the general public, the institution is to that extent for private advantage. It is not exclusively for the public benefit: School Directors of Upper Darby v. Directors of St. Stephens' Church, 34 Leg. Int. 291; Swift v. Easton Beneficial Society, 23 P. F. Smith 362; Academy of Fine Arts v. Philadelphia, supra; St. Mary's College v. Crowe, 10 Kansas 442; Cincinnati College v. The State, 19 Ohio 110; Carne v. Long, 2 DeGex, Fisher & Jones 75. There is a distinction between a charitable gift and a charitable institution. It does not make this library a charity because it is the trustee of certain books or libraries, given it by will or otherwise. The public must have the same use as the stockholders. It cannot confer special benefits on members and claim exemption. The corporation derives a profit from the hire of its books, and it is not material that there is no cash dividend. The stock is also bought subject to the approval of the board of directors, and under such a regulation every one could not become a member, for if a member object, how could the stock be transferred? If the decision of the court below is sustained, there are a number of institutions which will claim exemption.

Wm. Henry Rawle and R. C. McMurtrie, for appellee.—This library is a "purely public charity," within the meaning of the constitution. Charity, in its legal sense, includes not only gifts for the poor, but endowments for the advancement of learning or for any useful and public purpose which lessens the burthen of government: Vidal v. Girard's Ex'rs, 2 Howard 128; President of the United States v. Drummond, 7 H. L. C. 141 n.; Trustees of the British Museum v. White, 2 Sim. & Stu. 595; Jones v. Williams, 2 Amb. 652; Jackson v. Phillips, 14 Allen 539; American Academy of Fine Arts and Sciences v. Harvard College, 12 Gray 583; Gerke v. Purcell, 25 Ohio St. 229. Gifts to establish libraries are clearly such: Drury v. Inhabitants of Natick, 10 Allen 169. The appellee is an institute of learning within the Act of 1874. It is true statutes of exemption are to be strictly construed, but this rule does not apply where a statute merely carries out a provision of the constitution and does not grant anything not before possessed by the citizen. It is the duty of the state to provide for her poor, to encourage religion, and educate the children within her borders, and if any body of citizens contribute to these objects and assume the place of the state they are entitled to be surrogated to her rights so far as taxation is concerned. The test of a public charity is whether it is, to any reasonable extent, open to the indefinite public. Location and means of support and the exclusion of a part of the public are immaterial: Drury v. Natick, supra; Thomas v. Ellmaker, 1 Pars. Eq. Cas. 98; Attorney-General v. Heelis, Id.; 2 Perry on Trusts 707 n.; Miller v. Porter, 3 P. F. Smith 292; Warde v. Manchester, 56 N. H. 508. In twelve of the United States legislatures have enacted that public libraries come within the scope of provisions similar to those in our own constitution. In Gerke v. Purcell, 25 Ohio St. 229, the exact question now under discussion, whether the statute was broader than the constitution, was decided in our favor. It is state policy to foster such institutions as these libraries. If they are taxable, they are liable to confiscation, for their income is wholly inadequate to the purpose of taxation. The words "purely public charity" are a direction to the legislature to prohibit what was an old and flagrant abuse, the exemption of private property, such as Odd-fellows' halls. These words are terms of art, and are as technical a definition of a class of property as a freehold. This library is a charitable use, and it is the duty of the state to...