City of Erie v. First Universalist Church , 105 Pa. 278 ( 1884 )

Mr. Justice Gordon

delivered the opinion of the Court, February 18, 1884.

This is the case of a scire facias on a lien filed by the city of Erie-for the cost of a sewer built by the municipality in Ninth street, of said city, in front of the lot owned by the defendants, on which is erected a building occupied and used as a place of regular stated religions worship bjr the congregation of the First Universalist church of Erie. On part of the defendants it is claimed that the property so used and occupied is, by the first section of the Act of May 14, 1874, P. L., 158, exempted from the assessment which forms the basis of the lien above stated. This claim is certainly well founded if municipal assessments of this kind are to be regarded as a species of taxation, for the Act speaks in no doubtful terms concerning the exemption of this kind of property from every variety of city1' tax. The statute reads as follows: “ AÍ1 churches, meeting houses, or other regular places of stated worship, with the grounds thereunto annexed necessary for the occupancy and .enjoyment of the same;.....and all school houses belonging to any county, borough or school district, with the grounds thereunto annexed and necessary for the occupancy and enjoyment of the same ; and all court houses and jails, with the grounds thereunto annexed, be and the same are hereby exempted from all and every county, city, borough, bounty, road, school and poor tax.”

It will here be observed that churches are put in the same category with court houses, jails, and schoolhouses ; in other words, with that kind of municipal property which every one must admit is not the subject of any kind of local taxation or assessment. It would seem to me, therefore, that this manner of classification leaves no room for doubt as to the legislative intent; if schoolhouses, jails and court houses are not subjects of municipal assessments, neither are churches; and if this is not the true reading of tlio Act, I confess my inability to comprehend it. But again, the property specified in this category is exempted from “ all and every county, city, borough, bounty, road, school and poor tax.” If then, the assessment which is the subject of the present contention, is a tax, it is embraced within the letter of the Act, and we must approve the judgment of the court below. But that such an assessment is a tax is definitely settled in the case of the Olive Cemetery Co. v. City of Philadelphia, 12 Nor., 129. Mr. Justice Sterrett, who delivered the opinion of the court in that case, says: “The main contention on part of the cemetery company is, that the assessment for construction of the sewer on Merion avenue is a species of taxation, and clearly within the letter as well as the spirit of the exemption contained in the charter. The exemption is ‘ from taxation excepting for state purposes.’ The obvious meaning of this is that the commonwealth releases, in favor of the cemetery company, her right to tax its land, when used as a place of sepulture, in any form or for any purpose of a local nature, as distinguished from general state purposes; reserving to herself the right of taxation for the latter purposes only. The exemption is general, and embraces every species of taxation not specifically excepted; and the rule is well settled that an exception in a statute excludes all other' exceptions: Miller v. Kirkpatrick, 5 Cas., 226. It is not pretended that municipal assessments for constructing sewers, &c., are within the accepted meaning of: taxation for state purposes; on the contrary it is contended by the city that they do not come under the head of taxation at all. It is conceded, however, that the authority to make and collect such assessments is delegated by the commonwealth. If it does not emanate from the inherent powers of the government to levy and collect taxes, it is difficult to understand whence it comes. The only warrant for delegating such authority must be either in the right of eminent domain or in the taxing power. It cannot be found in the former, and hence it must be in the latter.” Scarcely less emphatic is the declaration of Mr. Justice Sharswood in Hammett v. Philadelphia, 15 P. F. S., 146, that this mode of municipal assessment for the cost of local improvements upon the properties benefited, is a species of taxation. So the cases of the Washington Avenue, 19 P. F. S., 352; Craig v. The City, 8 Nor., 265; and The City v. Rule, 12 Nor., 15, are ruled upon the assumption that such assessments are taxes, and in those eases they were held unconstitutional because the frontage rule of taxation, when applied to rural districts, was regarded as unequal and unjust.

We cannot, therefore, but regard the doctrine contended for by the defendants as thoroughly established by authority, and as the language of the Act itself leads to the same conclusion, we must agree with the court below that the affidavit of defence is sufficient, and exhibits such a case as must put the plaintiff out of court.

The order of the court below discharging the plaintiff’s rule for judgment for the want of a sufficient affidavit of defence is affirmed, and the writ of error is dismissed at the costs of the plaintiff.