Pettibone v. Smith

Opinion by Mr. Justice Gkeen, The obligation of the defendant to the plaintiff is expressed — 126 — in these words: “ That the said lessee shall pay all and every the United States, state and local taxes, duties and imposts, on the coal mined, the mining improvements of every kind and the surface and coal land itself.” The charge sought to be recovered in this action is a municipal assessment to defray the cost of building a sewer and another to provide for the cost of grading a street. The question at issue is whether the defendant, who is a lessee under a coal mining lease, with the right to take all the coal, or the plaintiffs, who are the owners of the fee, are bound to pay the assessments mentioned. It will be observed that it is nowhere provided in the lease that the defendant shall pay municipal assessments specifically as such. He is to pay taxes, and if taxes are the same thing as assessments he would, by necessary implication, be bound to pay assessments though they are not named in the lease. It is certainly true that we have several times decided, that an assessment is a tax within the meaning of certain statutes exempting property from the payment of taxes. It is also true that the power to levy assessments is the taxing power, but it does not follow, and is not true in fact that an assessment is precisely the same thing as a tax, and it is entirely certain that a tax is not an assessment. In a general way a tax is an impost upon the citizen for the .support of the government, and a municipal assessment is a contribution levied upon the ownership of land to defray the expense of its improvement. The fundamental distinction between taxes and municipal assessments has been many times judicially defined by this and other courts, and wherever the distinction has, in the circumstances of particular cases, required to be observed and enforced, it has been done, while in some of the cases where such a course has not been necessary to be observed, they have been treated as nearly or quite in common. A moderate review of the authorities will illustrate this. In Pray v. The Northern Liberties, 31 Pa. 69, a scire facias was issued upon a municipal claim for pavement and curbstone laid in front of a city lot, and defence was made upon the ground that the provisions of the Act of 1824 for the collection of unpaid taxes had not been complied with. But this court held that the claim was not a tax and therefore was not affected by the Act of 1824, but could be collected as an as — 127 — sessment under the Act of 1840. Coulter, J., said: “ The assessment or charge for paving was not a tax, either technically speaking nor according to the purview of the Acts of Assembly on the subject. A tax is generally understood to mean the imposition of a duty or impost for the support of government. In that sense it is understood all the world over, as contradistinguished from a mere municipal or corporate charge for the improvement of property within the corporation or municipal bounds. This view of the case is fully sustained ■ by the case of Sharp v. Speir, 4 Hill, 82, per Bronson, J.; and in 11 Johns. 77; and particularly in Bleecker v. Ballou, 8 Wend. 263.....Nothing is more reasonable and fair than that the owners of property should be compelled, with their lellow-eorporators, to pay for improvements in the streets, paving, etc., which is for the benefit of all, and not lie by and evade the payment of assessments for that purpose and yet enjoy the full benefit of the improvements.” In the Northern Liberties v. St. John’s Church, 13 Pa. 104, the subject was presented in the form of a claim for exemption by a church property under the Act of April 16,1838, exempting churches and burial grounds from taxes. In delivering the opinion Mr. Justice Coulter said: “ And I think the common mind everywhere has taken in the understanding that taxes are a public imposition, levied by authority of the government, for the purpose of carrying on the government in all its machinery and operations ; that they are imposed for a public purpose; whereas municipal charges are often for the benefit of lot holders on a particular street, and the assessment, as in this instance, induced by the request, made known according to their charter, of a majority of the inhabitants. The assessment or charge is an equivalent from the owner for the improvement made to the value of the property. Such assessments are not collected like public taxes, but generally, as in this instance, a particular mode of recovering the charge is pointed out by the law.” In Borough of Greensburg v. Young, 53 Pa. 280, it was said in the opinion, by Thompson, J.: “ The assessment or charge against the defendant for the grading and paving in question was not a tax: Pray v. The Northern Liberties, 31 Pa. 69; and does not conflict with the limit upon the authorities as to the extent of tax they may lay in any one year.” — 128 — In one of our most recent utterances upon this subject, Mt. Pleasant Borough v. Railroad Co., 138 Pa. 365, Mr. Chief Justice Paxson said: “ But municipal assessments differ from general taxation in many respects. The latter is the imposition of a duty or impost for the support of the government. In that sense it is understood all the world over as contradistinguished from a mere municipal charge for the improvement of property within the municipal bounds. Hence it was held in Pray v. The Northern Liberties, 31 Pa. 69, that a municipal claim for paving, etc., was not a tax within the meaning of the Act of February 3, 1824, and need not be registered in the office of the county commissioners. This was directly in the line of Northern Liberties v. St. John’s Church, 13 Pa. 104, where it was held that the church was not exempt from a charge for laying water pipes, by reason of the Act of April 16, 1838, exempting churches and burial grounds from taxes. While a municipal assessment for paving, etc., is a species of taxation, and is the exercising of the taxing power of the commonwealth, conferred to a limited extent upon such corporations, yet it differs essentially from general taxation.” Thus, in our earliest as in our latest decisions, we have declared and enforced the radical difference between taxes, as such, and municipal assessments. It is not to be doubted that the cases of Washington Avenue, 69 Pa. 352; Olive Cemetery Co. v. Philadelphia, 93 Pa. 129, and City of Erie v. First Universalist Church, 105 Pa. 278, do decide that the assessment of benefits for municipal purposes, is a species of taxation, and that the power to make such assessments, when conferred by the legislature upon municipalities, is to be regarded as an exercise of the taxing power, but none of those cases presented the question involved in the present contention. In the last two of them exemption was allowed from municipal assessments, on the ground that the assessments must 'be regarded as a species of taxation. But in the Cemetery cáse the language of the charter was that the property “ shall- be exempt from taxation excejoting for state purposes,” and upon the construction of that language it was held that exemption must be allowed for all kinds of taxation, except taxation for state pur poses literally, on the principle that an exception in a statute excludes all other exceptions. And in Erie v. Church, the lan — 129 — guage of the exempting Act of 1874 was, from “ all and every county, city, borough, bounty, road, school and poor tax.” We held that the assessment must be regarded as a tax from the generality of this language, and because the property was included in the same category with court houses, jails and schoolhouses, which, by common consent, are regarded as not subject to any kind of tax or assessment. In none of the cases cited by the learned counsel for the appellee, and in none which appear in the opinion of the learned court below, did the question arise upon a covenant between private parties. In two of the cases cited for the appellant that precise question did arise, and was decided in conformity with the contention of the appellant in the present case. In Bleecker v. Ballou, 3 Wend. 264, it was decided that where a tenant took a lease of a village lot for twenty-one years, and covenanted to pay all taxes, charges and impositions which should be imposed upon the demised premises ; and during the term the premises were subjected to an assessment for pitching and paving a street, under an Act incorporating the village and authorizing such assessment, the tenant was bound by the express terms of the covenant to pay the assessment. The decision was put upon the ground that the words ‘ charges and impositions ’ include assessments, but it was also held that the word tax would not include assessments. Chief Justice Savage said: “ Had there been no decisions of courts upon similar covenants, I should think it clear that the parties intended precisely what the language of their contract imports ; that the lessee ran the risk of all taxes, charges,and impositions. These are not words without meaning, nor can I suppose they were used as synonymous. They import that the landlord was to receive his rent and, during the term, was to be subject to no expense on account of the demised premises. . . . There is no doubt that the assessment in question was not a tax, that being a sum imposed, as is supposed, for some public object: 11 Johns. Rep. 77.” The covenant under consideration in the above case was that the defendant, “ covenanted at his own proper costs and charges to bear, pay and discharge all taxes, charges and impositions which should be taxed, charged, imposed or assessed upon the demised premises or any part thereof.” The decision followed the ruling of the same court, Supreme Court of New — 130 — York, in the Corporation of New York v. Cashmau, 10 Johns. 96, where the language of the covenant included the words “ assessments ” and “ payments,” as well as duties, taxes and impositions. But it also recognized the distinction declared in the Matter of the Mayor, etc., of New York, 11 Johns. 77, in which a claim for exemption was made by some churches in New York city, to be exempted from an assessment for the opening of a street under an Act of 1813, which provided that no churches or schoolhouses, “ should be taxed by any law of this state.” The court held that the churches were not exempt because the word tax did not include assessments for benefits. The other case above referred to is Longmore v. Tiernan, 3 Pittsb. B. 62, in the district court of Allegheny county in 1867, which, while it is not authority in this court, commends itself to our favorable consideration by the forcible and exhaustive reasoning of the opinion, and by the learning and ability of the eminent judge who wrote it, the late Justice Williams of this court. The very question involved in the present contention was at issue there. The action was brought by a lessor against his lessee for breach of a covenant in the lease as to which the court says: “ In addition to the rent, the ■ defendants covenanted and agreed to pay all the taxes that might be levied and assessed upon said premises for the last two years, except such tax as might be assessed to pay city or county railroad subscription indebtedness.” An assessment of $737.68 was imposed on the premises within the last two years of the term to defray the expense of grading, paving and curbing the street, on which the property was situated, which the lessor-paid after a judgment recovered against him and this action was brought to recover it from the lessee under his covenant in the lease. The court, after stating the question to be whether the covenant to pay all taxes, except the railroad subscription tax, included assessments for paving, etc., said: “ The agreement is to be construed in accordance with the meaning and intention of the parties at the time they made it. What then did they mean and intend by the words ‘ all the taxes that may be levied and assessed.’ In what sense did they use the word taxes? Did they use it in its common and ordinary acceptation, as denoting such impositions, rates and charges as are — 131 — made and levied for public objects and purposes ; or did they use it as denoting any and all manner of assessments, impositions, burdens and charges whatever whether made or imposed for public objects or for mere local improvements ? In ascertaining and fixing its meaning as used by the parties, we must presume that they used the word in its common and ordinary acceptation and meaning. As commonly used and understood the word ‘ tax ’ signifies a sum or rate imposed by governmental authority for a public object or purpose. An assessment under the paving Act to defray the expenses of improveing a street is not commonly, if ever, called a tax. In common parlance it is usually called a ‘paving lien,’ and sometimes perhaps ‘ an assessment for grading and paving.’ If then the parties used the word taxes in its ordinary and usual signification, it does not include the assessment in question.” The learned judge then proceeded to examine the question both upon principle and authority at considerable length, and reached the conclusion that the word “ taxes ” in the covenant did not include the assessment even though all the taxes were to be paid and only one kind was excepted. The authorities were all considered and carefully reviewed. The opinion meets with our entire approval, and although it was delivered before our recent exemption cases were decided we do not consider there is anything in them which ought to affect it. The question arose upon the interpretation of a contract between private parties. Of course the interpretation should be adjudged by the application of the rules which usually determine that class of cases. The meaning and intention of the parties as derived from the use of words which have a plain and ordinary signification is one of the surest guides to the interpretation of their contracts. Considerations of a different kind are applicable in the interpretation of statutes ^exempting religious and charitable properties from taxation. A general purpose to relieve from all burdens may well be inferred in such enactments upon many grounds of a public character or of general policy, when such an intent or sentiment would be entirety inapplicable to the reading of a private contract. In this very case the assessment in question was made to defray the expense of constructing a sewer on the surface. — 132 — The coal lessee has no interest in it, or use for it, and can derive no benefit or advantage of any kind from it. It is constructed entirely for the benefit and advantage of the surface and the surface owner; moreover it is permanent and will continue in use long after the determination of the defendant’s lease. Why should he pay for it, when in point of fact he has never agreed to such payment? Because it is a tax, says the lessor, and therefore is included within the burdens which the tenant agreed to pay. But it is not a tax literally, and nothing in the lease defines any expressed intent by either party that it should be paid by the lessee. To this it is replied that this court has said an assessment is a tax, or is to be considered as a tax, in a certain class of cases. But to that it can be well answered that this is not a case belonging to that class, and therefore the contract of the parties must be adjudged by the ordinary rules of interpretation, and, being so adjudged, all the authorities concur, and manifest legal principles require, that it should be declared that the defendant never agreed to pay the assessment in question either expressly or by any necessary implication. The judgment of the court below is reversed and judgment is now entered for the defendant upon the special verdict with costs.