City of Philadelphia v. Union Burial Ground Society

Opinion by

Mb,. Justice Gbeen,

We feel obliged to hold that the question at issue in this case is res adjudicata. The distinction between municipal assessments for the payment of local improvements, and general taxes intended for general governmental purposes, as they are affected by exemption laws, was fully pointed out and discussed in the opinion delivered by Mr. Chief Justice Stebbett in the case of Broad Street, 165 Pa. 475. It was there said that, “The constitutional exemption relates to taxes proper, or general public contributions, levied, and collected by the state or by its authorized municipal agencies for general governmental purposes, as distinguished from peculiar forms of taxation or special assessments imposed upon property, within limited areas, by which the property assessed is specially and peculiarly benefited and enhanced in value to an amount at least equal to the assessment. There is such an obvious distinction between all forms of general taxation and this species of local dr special taxation that we can not think the latter was intended to be within the constitutional exemption.” After citing a number of decisions of our own court, and especially a decision of the Supreme Court of the United States, Illinois Central Railroad Co. v. Decatur, 147 U. S. 190, 197, wherein it is held that an exemption from taxation is to be taken as an exemption from the burden of ordinary taxes, and does not reheve from the obligation to pay special assessments imposed to pay for local improvements and charged upon contiguous property upon the theory that it is benefited thereby, the chief justice concludes as follows: “ The rule thus formulated not only rests upon an undoubtedly sound principle, but it is abundantly sustained by an almost unbroken fine of authorities in nearly all of our sister states, several of which authorities are cited and commented on in the opinion referred to. We are therefore of opinion that special municipal assessments, such as that in question, are not within the constitutional exemption above quoted.” The improvement in this case was the pavement of a street in front of a church property and we held that it was not exempted. This decision received the unanimous assent of the members of this court and has not been departed from. On tbe contrary in tbe case of New Castle City v. Jackson, 172 Pa. 86, wbicb was heard in the western district at October term, 1895, we followed the Broad Street case, and applied its ruling to an assessment upon a graveyard property for paving the street. We are unable to make a distinction between a graveyard and a church property in reference to this subject, nor do we think a distinction can be maintained between the paving of a street and the laying of water pipe. They are both municipal improvements of a local and. special character and, theoretically at least, each must be supposed to confer a benefit upon the adjacent property. The fundamental reason for withholding exemption, is, that such assessments are not general taxes, but are special and local, confined to limited areas, and to property adjacent to the improvement. In Michener v. City, 118 Pa. 535, we held that an owner could not defend againsb a municipal assessment for the cost of laying a sewer, on the ground that it was not a private benefit to him, nor a matter of necessity to the public. The city councils were necessarily the judges of the necessity of the improvement, and no other standard could be set up without the greatest confusion.- Whether the improvement be a sewer, as in that case, or a water pipe, as in this, can make no difference in the governing principle. We do not see how we could reverse this case without reversing our own previous decisions in the cases cited, and this we are not willing to do.

In the two cases, Philadelphia v. Church of St. James, 134 Pa. 207, and Philadelphia v. Pennsylvania Hospital for the Insane, 154 Pa. 9, it was substantially held that the properties there in question were exempt from an assessment for the cost of a water pipe laid in the street in front of them. In neither of them however was the question involved in the present case raised, considered or decided. In both, the only question discussed and decided, was, whether the property was embraced within the description of properties exempt from general taxation. In the first the property was a church, a church school and a church yard, and in a per curiam of one sentence, we said that the averments in the affidavit of defense must be taken as true, and therefore no error was committed in refusing judgment. In the other case there was also a per curiam opinion in which was very briefly discussed, the question whether such a property, to wit, the buildings and grounds of the insane department of the Pennsylvania Hospital, were a purely public charity. Holding the affirmative of that proposition we ruled that the demurrer to the plea which described the property, was bad, and sustained the court below in so deciding it. It is also to be said that both of these cases occurred prior to the case of Broad Street, supra, and if they were in essential conflict with the decision in that (¡ase, we would be obliged to hold that they were overruled. But there was no such conflict, as they were both entirely silent as to the question, decided in the Broad Street case. We cannot therefore regard them as of any force in the present contention.

Judgment affirmed.