County of Erie v. Commissioners of Water Works

Mr. Justice Green

delivered the opinion of the court,

The difference between this case and that of The County of Erie v. The Cit}^ of Erie is, that the Act of 1874 does contain a clause which directs that “ all property real or personal other than that which is in actual use and occupation for the purposes aforesaid and from which any income or revenue is derived shall be subject to taxation,” and it is the fact that the property in question here does yield a large revenue to the defendants. It seems to us that the legislature, possessing the power, as it does, by section 1 of Article IN, to provide for the levying and collecting of all taxes, has exercised its power and in such language as to embrace the property here in question. When it says “all property real or personal” which yields revenue shall be subject to taxation, we think the words used must be literally read. Water works are not essential to the administration of municipal government. They are incidental to it and possibly advantageous. If they are conducted without exacting revenue for the water furnished, they would not come within the language of the Act and would not be taxable, but as revenue is derived, the necessary meaning of the language employed embraces them. The fact of municipal ownership is the only matter that creates any doubt, but the provision is so broad and so peremptory that we think the liability to taxation was intended to be created without any regard to the public or private character of the ownership. It can not be said that there was any want of consciousness of the fact on the part of the legislature, that they were dealing with public property, for that was one of the classes of property which they were exempting, and in contrast with this they provide that all property, real or personal other than that which is in actual use and occupation for the purposes aforesaid and from which any income or revenue is derived shall be subject to taxation. The excepted property referred to includes certain kinds of public property but does not include the particular kind in question here, hence it is not embraced within the exception and is included in the general designation all property.

It would doubtless be entirely proper for the legislature to exempt all public property used for public purposes from taxation without qualification, but as they have not done so we have no discretion and must enforce the law as it is written.

The judgment is reversed, and judgment is now entered on the case stated for two hundred and thirty and two one-hundredths dollars in favor of the plaintiff and against the defendants, with costs of suit.