White v. Smith , 8 Pa. Super. 205 ( 1898 )

Opinion by

Beaver, J.,

The taxes in this case were assessed upon a lot of ground in the city of McKeesport fronting seventy feet on Market street by one hundred and forty feet to Blackberry alley, on part of which ground a building known as a convent and used as a residence for the Sisters of Mercy who taught the parochial school, conducted by the plaintiffs or under their supervision, was erected. The entire lot fronts two hundred and eighty feet on Market street. Upon one corner of the lot is erected the church building, upon the other the school building and between them the teachers’ residence or convent. As admitted in the plaintiffs’ bill, no tax has ever been assessed against the church or the school. It appears in the testimony of the plaintiffs that the title to this property is in the bishop of the diocese. The pastor of the church, Father McDermitt, testifies, in answer to the question, “ Do you know about how many children of other faith than the Roman Catholic attend that school?” “No, I do not; it varies. Sometimes they have quite a number and sometimes they have none at all; but, so far as we are concerned and as long as we have the room, they can come there, if they want to. There is no prohibition whatever.”

We held in Mullen v. Juenet, 6 Pa. Superior Ct. 1, that “a school the title to which is in an individual, which is not permanently devoted to the purposes of public charity and which is under the domination and control of a particular church, is not a public charity within the meaning of the constitution, so as to be exempt from taxation, by virtue of the facts that no tuition fee is charged and that up to the present time all children, whether of members of the church or not, are received and taught.”

Conceding, for the purposes of this case, that the so-called building designated in the bill as a convent is necessary as a residence for the teachers of the school in which they teach, we cannot distinguish the case from that above referred to. There is no assessment upon the school property here but only upon the residence of the teachers. The latter secures exemption, if it be exempt, by reason of its being a part of and necessary to the former but, if the former be a proper subject of taxation, how can the latter be said to be exempt ? It may well be doubted, even if the school building were exempt, whether, under the facts of this case, the convent building would be properly exempt under the provisions of the act of May 14, 1874.

None of the essential facts of the case differ from those in Mullen v. Juenet and it is only necessary for us to refer to that case, in which the principles and authorities governing the question are clearly stated by our Brother Reeder, to determine the proper disposition to be made of this case.

The prayer of the plaintiffs in their bill is “ for a preliminary injunction, afterwards to be made final, restraining said defendants from attempting to collect said taxes against said convent and the lot seventy by one hundred and forty on Market street.” The decree of the court is much more comprehensive than the prayer and is as follows : “ And now, March 30,1897, this cause came on to be heard upon bill, answer, replication, testimony taken and was argued by counsel. Whereupon it is adjudged and decreed that the property of St. Peter’s Roman Catholic Church Congregation of McKeesport, described in the bill in this case, being a lot on Market street with a frontage of two hundred and eighty feet, extending back between 7th and 8th avenues to Blackberry alley, on which lot is erected a church, a free school and a residence for the school teachers called a convent, is exempt from taxation as being a purely public charity. It is further ordered and decreed that the preliminary injunction heretofore issued in this case be made final and that defendants be perpetually restrained from collecting or attempt ing to collect any tax assessed or that may hereafter be assessed against the property of plaintiffs described in the bill in this case, so long as the same is used for the purpose of a purely public charity as is now done.”

Inasmuch as no taxes were assessed upon the lands covered by the chnrch and school buildings, it is difficult to see why they were embraced in the decree. So far as the decree covers these lands and' the tenements thereon erected, it was unnecessary and of no practical effect. So far, however, as the said decree relates to the lot upon which the taxes were assessed, to wit: a lot seventy feet on Market street by one hundred and forty feet to Blackberry alley, upon part of which ground the convent building or residence for teachers referred to has been erected and against which the taxes referred to in the plaintiffs’ bill have been assessed, the decree, for the reasons given in and upon the authority of Mullen v. Juenet, supra, must be reversed.

The assignments of error are sustained, the decree reversed and the plaintiffs’ bill dismissed at their cost.