Wilkinsburg Bor. v. Home for Aged Women

Opinion, Mr. Chief Justice Paxson : The fourth section of the charter of the defendant says: “All the estates and properties of the corporation hereby created, shall be free from taxation : ” Act 25th March, 1871, P. L. 452. It appears from the case stated that the defendant owns certain real estate in the borough of Wilkinsburg; that the foot-walk adjoining said land on Coal street was in such a state of decay as to be dangerous; that the borough council, by resolution, directed the defendant to lay a new footwalk in front of its said property in accordance with the ordinances and general regulations of said borough, of which resolution the defendant had due notice ; that the defendant neglected and refused to construct said footwalk, whereupon the borough proceeded to [117] do so, and within the time required by law filed its claim against said property for the amount of work and material used in its construction, together with twenty per centum advance thereon. It is conceded that this home is a charity, and that under the borough act of 1851 the burgess and council may require property owners to keep the footwalk or pavement in front of their property in good and safe condition for foot-passengers, and in default, after notice, the borough may cause it to be done, and collect the amount of expense, with twenty per centum penalty, from the owner. The precise question before us is, whether the defendant is exempt from this burden by reason of the clause in its charter above referred to. If the charge for laying this footwalk is a tax or a municipal assessment in the nature of a tax, we are of opinion the borough cannot recover. This principle was expressly ruled in Olive Cemetery Co. v. Philadelphia, 93 Pa. 129. In that case the company was exempted by its charter “ from taxation except for state purposes.” A sewer was constructed on a street along the line of which were a number of burial lots, and an assessment was charged against said lots to defray, in part, the cost of the sewer. This was held by this court to be a species of local taxation, and within the exemption clause of the charter. The defendant contends that this footwalk comes within the reason of the case cited, and that the charge for its construction is also a species of local taxation. We think there is a marked distinction between the two cases. In the case of borough foot-walks, the owners of property are required by law to keep their footways in repair, and if necessary, re-lay them. This is a duty imposed directly upon the property owner, and is in the nature of a police regulation. It is no more a tax, or a municipal assessment in the nature of a tax, than would be the imposition of any other duty by virtue of the police powers of the borough, with a penalty for its violation. This footway was a public nuisance, dangerous in its character; and the fact that the defendant is a charity, and exempt from taxation, does not authorize it to maintain a nuisance. It could be required to abate it precisely as in the case of any other corporation or individual. In the cemetery case, there was no police or other duty cast upon the company. It was not required to build the [118] sewer. It was constructed by the city under its power for that purpose, and the cost thereof charged to the property owners in pursuance of a recognized system of municipal assessments. Such assessments have been repeatedly held, to .be a species of taxation. We regret, for the sake of this deserving charity, that we are unable to reach a different conclusion. The law is too plain, however, to admit of even a doubt. Judgment affirmed.