Miller v. Kirkpatrick

• Decision Date: 01 January 1857
• Citation: 29 Pa. 226
• Parties: Miller versus Kirkpatrick.
• Court: Pennsylvania Supreme Court

29 Pa. 226

Miller versus Kirkpatrick.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Westmoreland county.

Cowan, for plaintiff in error.—Can a minister be taxed? Does his calling come within the Act of 29th April, 1844, which imposes a tax on "professions, trades, and occupations?" A contract is made between a congregation and a teacher of the same religious belief — he to instruct them at stated times, they to pay him a specified salary. Has he then such a trade, profession, or occupation as the law contemplates shall be the subject of taxation? It cannot be doubted that his calling comes within the definition of profession. Dr. Johnson says, "the term is particularly used of divinity, physic, and law." So the word occupation might well be held to include it. This being the uniform meaning of the word, it is to be taken in its usual sense when it refers to an object of taxation: Deitz v. Bayard, 2 Watts 172; Spangler v. York County, 1 Harris 326. No interest is to be relieved from the general burden unless the exemption is clearly expressed: Academy of Fine Arts v. Philadelphia County, 10 Harris 496. If the terms are broad enough to embrace ministers, they must be taxed, for there appears no intention to exempt them. The only exception being that of farmers, "expressio unius est exclusio alterius."

The same intention appears in the Act of 1838, exempting churches, and the grounds not exceeding five acres.

A review of the Acts of Assembly on this subject will show how these terms were understood by the legislature. In the 8th sect., Act 11th April, 1799, a tax is imposed on "all offices and posts of profit, trades and occupations, ministers of the gospel of every denomination, and schoolmasters, only excepted." This exemption was repealed by the Act 3d February, 1817. In the revised Act 15th April, 1834, the word "professions" was added to "trades and occupations," and that collocation remains to the present time. If it were necessary in 1799 to expressly exempt ministers, why should not the same exist in 1844? Would any court have said they were exempt in the face of the Act of 1817?

The case of Cuyler and Agnew, 5 W. & S. 275, is said to decide that the exemption is implied in the law. The question was not there whether their profession could be taxed, but whether the salary could be rated. The authority of the case is destroyed by Union County v. James, 9 Harris 525.

But is such an exemption constitutional? This is compelling all in an indirect manner to contribute to the support of the churches and systems of religion, which is against the spirit if not the letter of the 3d sect., art. 9th of the Constitution. He also referred to 2 Watts 172; 1 Harris 326; 10 Id. 496.

Armstrong, for defendant in error.—In the Commonwealth v. Cuyler, 5 W. & S. 275, the question here raised was directly presented to this court, on the broadest grounds, and unanimously decided against the tax now claimed. If that decision is to stand there is an end of the question, for it is directly in point. But we take the ground that the "office of a minister of the gospel" is not within the letter, the reason, or the spirit of the law. It is not a "profession." It is admitted that the body of the ministers constitutes one of the learned professions; but, in common parlance, we never speak of them as professors. They are designated as bishops, ministers, pastors, or priests, but never as professors. Webster defines the term "professor" to be one who publicly teaches any science or branch of learning, particularly "an officer in a university, college, or other seminary, whose business it is to read lectures, or instruct students in a particular branch of learning." The same author defines "pastor" to be "a minister of the gospel, who has the charge of a church and congregation." The terms are so used by all the best writers, as Swift, Milton, Addison, Hooker, Tooke, &c. Thus we find that the titles bishop, minister, &c., are synonymous; but none of them synonymous with the term "professor."

But the learned counsel contends, that if not embraced within the word profession it is included in that of "occupation." In this we join issue, and contend that the office of a minister is neither a "profession, trade, or occupation" within the purview of the statute. The legislature cannot constitutionally exercise any control over the office of a minister: Commonwealth v. Cuyler, 5 W. & S. 275.

The functions pertaining to the office are not of a civil or secular nature, and are for the most part exercised on the Sabbath, and yet they are exempted from the operation of the penal statute against the performance of secular labour upon that day. The office is by divine appointment, and owes no tribute or allegiance to any earthly potentate or state whatever.

A fundamental principle of the constitution is a total and entire separation of church and state, and the right of worship according to the dictates of each man's conscience. This is so entire, that each denomination has its own forms of government independent of the rights of visitation from the civil government. If the state have the right to tax the salary of an individual pastor, it may also do the same with the revenues of the church. Such has not been the policy or the law heretofore. The mind of the legislature, as gathered from all the statutes on the subject, indicates a disposition to aid and foster religion. The Act 16th April, 1838, § 29, exempts all churches, or places of worship, with the grounds, and the Act of 1839 limits it to five acres and the improvements. And in the Act 22d April, 1846, passed shortly after the decision in Commonwealth v. Cuyler, the legislature introduces this emphatic proviso, "excepting always such property as shall be held in trust for religious purposes."

The opinion of the court was delivered by LEWIS, C. J.

The question raised in this case is, whether a minister of the gospel, employed and paid by an unincorporated religious society, is liable to taxation for his "occupation" or "profession." The 32d section of the Act of 29th April, 1844, declares that "all offices, posts of profit, professions, trades, and occupations, except the occupation of farmers," "shall be valued and assessed, and subject to taxation." The term "profession" designates the calling of a minister of the gospel with sufficient precision. That term is especially applicable to persons who teach or practise in law, physic, or divinity. It is universally understood that ministers of the gospel are members of a learned profession. If this were not so, there is no difficulty whatever in classifying their calling under the head of "occupations." The clause, describing these objects of taxation, is sufficiently general in its language to embrace clergymen, who live...