#### Armstrong Co. *v.*Kittanning Borough Overseers.

A farm appurtenant to a poor-house, owned by a borough, but situate in a township, and used and appropriated as a place for the maintenance of the poor of the borough, and supported by taxes collected from the citizens of the borough, is exempt from taxation for county purposes, as an institution of purely public charity, or as public property used for public purposes, under article ix, *\*1, of the constitution and the Act of May 14, 1874.

The character of the property, for exemption purposes, is not affected by the incidental use of the property in receiving paupers from other districts, the proceeds being applied to the maintenance of the paupers on the premises. Nor by the fact that the product of the land and the labor of the paupers on the premises were devo ted to the support and maintenance of the paupers.

It is not necessary that a case-stated, in such case, should find specifically that the lands annexed to the poor-house are necessary for the occupancy and enjoyment of the same.

Oct. 8, 1888.

Error, to C. P. Armstrong Co., No. 63, Oct. T., 1888, to review a judgment for defendant on a case-stated •wherein Armstrong Co. was plaintiff and the Kittanning Borough Overseers of the Poor were defendants, at Dec. T., 1887, No. 26. Green and Hand, JJ., absent.

The following facts were agreed upon by the case-stated:

“ On April 9, 1885, the Overseers of the Poor of Kittanning borough purchased from E. Buffington, Esq., 52 acres of land,'in fee simple, situate in Valley township, Armstrong county, which purchase, on Feb. 20, 1886, was duly approved by the court of quarter sessions of said county; and the said overseers thereafter improved said land and erected thereon suitable buildings for the care, shelter, keeping and maintaining of the poor of said borough. Said land was purchased, buildings erected and paupers maintained, and are yet supported, sheltered and maintained by taxes duly levied, assessed and collected from the taxable citizens of said borough, and also by the products of said land and the proceeds of the labor of said paupers on said premises. The poor-district of Kittanning borough receives, keeps and maintains paupers from other districts on said poor-farm or premises, at a stipulated sum per week, the proceeds of which are applied to .and used in defraying the expenses, support and maintenance of the paupers on said premises. Said property was levied and assessed with county and dog tax for the year 1887, as follows, to wit: county tax $18.36, in all the sum of $18.36. Said overseers of the poor have refused and still do refuse to pay the same.

“ If the court be of the opinion that said premises are the subject of such taxation, then judgment to be entered for the plaintiff for the sum of $18.36 and costs; but if not, then judgment to be entered for the defendants. The costs to follow the judgment, and either party reserving the right to sue out á writ of error or appeal therein.”

The court filed the following opinion, by Neale, P. J.:

“ It is proposed’, in the statement of facts submitted, to determine, as a question of law, whether or not the poor-farm owned by the borough of Kittanning, and used and appropriated as a place *317for the support and maintenance of the poor of said borough, is subject to the payment of county taxes.

“ It is admitted that the farm contains a number of acres, appurtenant to the poor-house, which are tilled and cultivated in the interest, and for the benefit, of the poor-district of Kittanning borough. It is also shown that there are instances of paupers from other districts being maintained at the poor-farm, for which the district (Kittanning) is compensated at a rate charged per capita.

“ It cannot be doubted that the institution is purely charitable. It is in fact the home and place of shelter of the poor and destitute. They do not provide it themselves, they do not maintain it. It is provided and maintained by the public. It cannot be claimed that, in any sense, it is a source of profit or that it is anything else than a public burden. It exists, it is true, by reason of the law enforcing the support of the poor. But the law itself has its origin in the dictates of humanity and the benevolent and charitable interest manifested by the more fortunate for the welfare and comfort of the unfortunate.

“ The law itself expresses the charitable character of its provision in this that it declares that the tax-paying portion of the public stands ready to bear their proportionate burden of the taxes necessary to maintain the unfortunate poor of this community.

“ That consent, to the creation of such a law, does not carry with it any purpose of increasing that burthen by making that taxation a source of another and different burthen,' — that of maintaining the expenses incident to either municipal or county organization, — any more than the distinctive municipal and county organizations, out of their levies, should be called upon to contribute to the maintenance of the poor.

“ Thus, whilst the maintenance of the poor is enforced by law, the law itself emanated from the instinct of humanity and charity alone, and no institution whatever can therefore be more fitly designated as a ‘ charity.’ If so, it is clearly within the exceptions made in favor of charities, and, as such, is exempt from taxation.

“ That the paupers have the opportunity of working and thereby in part providing for their own support, and consequently diminishing the burthen of taxation, is only an incident that can in no sense destroy the character of the institution, or make it any less a charity. By this fact, indolence is provided against, industrious habits encouraged, and morality promoted.

“If others are admitted from other districts and compensation is exacted, it is also purely incidental.

“ If a portion of territory is thus released from taxation, the county rates are not affected thereby, as they can be applied to other property and regulated to meet any deficiency that would arise from this exemption.

“ The case of Schuylkill Co. Poor Directors *v.*School Directors, *31842 Pa. 24, is in point and the principles stated therein apply to the present case.

“For the reasons given, judgment is entered for the defendants, with costs.”

*The assignment of error*was as follows: “The judgment is erroneous.”

*John F. Whitworth,*for plaintiff in error.

It was held in Donohugh’s Ap., 86 Pa. 314, that a public1 charity for private or corporate profit, is not a purely public charity within the constitution. In view of the admitted facts (although it may be in fact a public charity), how can it be said to be an institution of purely public charity — devoted entirely to public charitable purposes — when we consider the profits from the products of the land and from the labor of the paupers, as well as from boarding paupers from other districts. It is admitted that the charges made for the support of foreign paupers are more than sufficient for their support, the surplus being applied to the support of the paupers of the borough. The profits derived from all these sources go directly to the poor district of Kittanning borough and to the reduction of its taxes.

This property was purchased by the overseers of the poor by virtue of the Act of June 30, 1885, P. L. 203, authorizing poor districts to purchase or lease real estate for the keeping of the poor of the proper district. This Act does not contemplate the purchase of large tracts of land, and the boarding and maintaining of paupers from other districts.

Again, the Act of 1885 does not restrict overseers of the poor to any number of acres. They might purchase five hundred acres. Admitting the poor-house itself to be exempt, is so large a body of land exempt? Under the Act of 1874, only the “grounds thereto annexed and necessary for the occupancy and enjoyment of the same ” are exempt. The overseers must show that 5 2 acres are necessary. In this particular, the defendants must bring themselves strictly within the exception. Statutes which give exemption from a general burden should receive a strict interpretation. Academy of Fine Arts *v.*Phila., 22 Pa. 496; Mullen *v.*Erie Co. Com’rs, 85 Pa. 288.

Property owned by a municipality, and used for public purposes, is exempt from taxation. It has been held that city and town halls, waterand gas works, meat markets, etc., owned by municipalities, are exempt. In all such cases, however, the property was located within the municipality. But even in such cases, can the municipality own large tracts of land within the same, and claim the property to be exempt simply because a public building is erected thereon or because the property is connected with gas or water works ? Would it not be incumbent on the authorities to show that the land is necessary for occupancy and enjoyment ?

It is going beyond the bounds of reason to hold that the overseers of the poor of Kittanning borough may go out of the limits of *319the borough, into another municipality, purchase a large tract of land, erect a poor-house thereon, violate the very law by virtue of which said land was purchased, and that such property is exempt from taxation. They should, at least, bring themselves within the Act of 1874, and make it appear that so large a tract of land is “necessary for the occupancy and enjoyment” of the buildings: Academy *v.*Phila., supra; Mullen *v.*Com’rs, supra.

Should it be held that the poor-house itself is exempt, and the land taxable, the whole is taxable, as the value of each is not shown, so that the tax might be apportioned. Such was held to be the law in the case of Summit Grove Camp Meeting Ass’nw. New Freedom Borough School District, 12 W. N. C. 103.

If this exemption is allowed, other townships' may buy up all the fertile lands- and thus throw the whole burden of taxation upon a few citizens of Valley township. This, in effect, would be compelling citizens of Valley township to assist indirectly, in the support of the paupers of other districts (Academy *v.*Phila., supra), or possibly all the land of the township might be absorbed so that none would be left to be taxed for township purposes. It was said in Hammett *v.*Phila., 65 Pa. 146, that “ one county cannot be taxed to pay the debt of another, nor one portion of the state to pay the debt of the whole state.”

It is true that, in the case of Cumru Township *v.*Berks Co. Poor Directors, 112 Pa. 264, it was held that a county poor-farm was exempt from taxation; but that is not the present case. There can be but one county poor-farm; but should a county purchase a poor-farm over its line into an adjoining county, would such property be exempt? We may suggest that were this poor-house and premises located in Kittanning borough, it might possibly be exempt, provided it were shown that the land was necessary, for in that case the loss by exemption would fall on the borough which receives all the benefits. In the present case, it falls on the citizens of Valley township who receive no benefit.

The defendant’s remedy was by application to the county commissioners, to have the assessment stricken off, and, in case of their refusal, by appeal into court. Camp Meeting *v.*New Freedom Borough, supra.

*McCain &*Leason, for defendant in error,

not heard. — The property is exempt as-“ public property used for public purposes,” and as. an “ institution of purely public charity ” within the scope and meaning of art. ix, §i,of the constitution, and the Act of May 14, .1874, P. L. 158. While the fact is not admitted that it is public property and used for public purposes, it is apparent, from the facts spread upon the record, that it is property that comes within the scope and meaning of the Act as such; it is the property of a municipality ; it is in the use of the municipality, and the poor of the said district are kept, supported and maintained there by a tax levied, assessed and collected from the citizens of the said poor district, and *320all the poor who are found within the district, without regard to sex, color, creed or nationality, are admitted. This court has expressly decided that property of this kind is public property. Burd Orphan Asylum *v.*School District, 90 Pa. 29; Erie Co. *v.*Erie, 113 Pa. 360.

The essential feature of a public use is that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite or unrestricted quality that gives it its public character. Donohugh’s Ap., 86 Pa. 306. And to the same effect is the case of Cumru Township *v.*Berks Co. Poor Directors, 112 Pa. 264.

In the case of the Directors of Poor *v.*School Directors, 42 Pa. 25, this court say: “ Tax the poor-house to support the schools ? Why this would be to take the poor taxes to support the schools; and the people must be taxed to pay the officers who perform such foolish service. If we require the townships, counties, towns, cities and state, and the road, school and poor authorities, to tax each other, we shall furnish fees enough for several, hundred officers engaged in transferring from one public body to another the taxes which it has collected for its public purposes.” And to the same effect is 2 Dillon, Corporations, § 614; Coolly, Taxation, pp. 130 and 131; Erie Co. *v.*Erie, supra.

In order to tax property of this kind, the party seeking to do it must show some statutory authority for doing so, other-wise the assessment for such a purpose is void. Directors of the Poor *v.*School Directors, supra.

Under the Act of June 30, 1885, P. L. 204, the overseers are not limited in their purchase of real estate to their own district, the only requirement or limitation is “ suitable real estate.” It has been ascertained by practical experience that the locating of an institution such as this near a city or large town has not proved a success financially, nor in the improvement of the morals of the inmates.

The Act, giving authority to the overseers to. purchase such real estate, prescribes that it can only be done “ with the approbation of the court of quarter sessions of the proper county,” which we think is a check upon any abuse of such power, and a sufficient answer to that portion of the argument on the other side.

True it is, as stated, paupers are received here from other districts-, and kept for a stipulated sum per week, but it is also shown from thé same source that these paupers are kept, maintained, and supported by taxes levied upon the citizens of the said district; but this point is so ably and clearly disposed of by the learned judge of thé court below, in his opinion, that we dismiss it without further comment.

Summit Grove Camp Meeting Ass’n *v.*New Freedom Borough School Dist., 12 W. N. C. 103, was an adverse proceeding, and, from the opinion of the court below, and this court, the claim was that of an excessive assessment, if anything. The Act of April 20, 1876, which authorizes appeals from assessments to the court of com*321mon pleas, is intended to afford relief where there is an inequitable assessment.

Oct. 29, 1888.

If. there was anything irregular in the proceeding, as claimed by the plaintiff, they waived that in becoming a party to the case-stated.

Per Curiam,

There can be no doubt but that the learned judge of the court below came to a proper conclusion when he gave judgment in favor of the defendant in the case now in hand. The only remarkable thing about it is that the county commissioners should have undertaken to tax, for county purposes, the property of the Kittanning poor-district, for, if the statutory maintenance of the poor be not a purely public charity, the definition of such a charity would be indeed difficult. But, if the judicial opinion of this court be required in support of the learned judge’s decision, it may be found in the case of Cumru Township *v.*Directors of the Poor, 112 Pa. 264.

The judgment is affirmed.