Summary
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 2 OP ALLEGHENY COUNTY.
No. 164 October Term 1889, Sup. Ct.; court below, No. 400 July Term 1889, C. P. No. 2.
On June 11, 1889, an amicable action of scire facias upon a municipal claim filed to No. 556 January Term 1889, by the borough of Wilkinsburg, plaintiff, against the Home for Aged Protestant Women, defendant, was entered in the court below, in pursuance of an agreement filed stating the following case for the opinion of the court:
The borough of Wilkinsburg was incorporated on the-day
of October, 1887, under the general borough laws of the state. The Home for Aged Protestant Women was incorporated by act of general assembly, approved March 25, 1871, P. L. 452, the last section of which is as follows:
“ Section 4. All the estates and property of the corporation hereby created shall be free from taxation.”
The defendant is the owner of certain real estate situate within the limits of said borough, plaintiff, bounded and described as follows: . . . . containing about five acres.
The footwalk adjoining said land on Coal street was in such a state of decay that it was dangerous to the life and limbs of persons passing over the same, and it was necessary, for the safety of pedestrians passing along the said street, that a new footwalk be substituted; and accordingly the plaintiff, by resolution duly passed by its council, September 4, 1888, required the defendant to construct and lay a new footwalk along and in front of its property on Coal street, in the place occupied by the said old walk, in accordance with the ordinances and general regulations of the said plaintiff, of which said resolution the said defendant had due notice.
The said defendant neglected and refused to lay and construct a footwalk as required by the resolution and notice of said plaintiff, whereupon the said plaintiff duly advertised for proposals for the construction of said footwalk, and received a number of bids for the said walk, and, after consideration of the same, the lowest bidder was allotted the work; said lowest bid being for the sum of $291. Said footwalk was constructed by said lowest bidder, as required by the ordinances and general regulations of said plaintiff, and in accordance with the resolution and notice aforesaid. Within the time required by law, the plaintiff filed its claim against said described real estate to recover the value of said work and labor and the material used in the construction of said footwalk, together with twenty per centum advance thereon.
The Home for Aged Protestant Women, defendant, was founded, endowed and incorporated, and is maintained by public and private charity, for the purpose of providing a home free of charge for aged Protestant women of this community over sixty years of age who may be without near relatives and without the means of supporting themselves. It is under the supervision of the State Board of Charities.
The land above described, against which it is sought to enforce the claim for the construction of the footwalk, was given to the institution for the purposes thereof by James Kelly, now deceased. The buildings, originally erected thereon by the defendant, in the year 1871, at a cost of about $25,000, were paid for out of money donated for that purpose; a large part of it was bequeathed by James M’Auley, and about $8,000 were the proceeds of a public bazaar, held in old City Hall in 1870.
The premises and grounds are occupied solely for the purposes of the corporation, as a home for the inmates and a place of meeting for the managers. The said grounds are annexed to the institution and are necessary for the occupancy and enjoyment of the same, and no profit or revenue is derived from any part thereof.
The institution is supported by public and private charity, annual subscriptions and occasional donations, and the interest on the endowment fund, which is formed of bequests made from time to time. The whole of the income of the defendant corporation is applied to charitable purposes in the support and maintenance of the home, in the payment of the wages of the employees necessary in caring for the inmates, and in payment of the funeral expenses of those who die.
Each applicant for admission,- on being received as an inmate, pays, when practicable, a fee of $200. The payment of these fees has been established for the purpose of having, to a certain extent, a guarantee of the respectability and good behavior of the inmates, and that the latter may not feel themselves to be paupers. The rules of the board of trustees provide that this payment may be remitted in proper cases. The fees, in the aggregate, bear a very insignificant ratio to the expenses of the institution. The average number per annum who have been supported, cared for and nursed, free of charge, as inmates of the home, during the past ten years, is fiftyrthree.
The average yearly expenditure during the past ten years, for the maintenance and support of the inmates and current expenses of the institution, has been $10,000. One tenth or one twelfth of this annual sum has been paid from admission fees, and the remainder from public and private contributions and the interest on the endowment fund.
The corporation has no capital stock and no member or manager thereof receives any salary or compensation for her services, or derives any pecuniary profit or advantage therefrom.
Now, therefore, if the court shall be of opinion that under . the defendant’s charter, the laws of this commonwealth and the facts set forth in the case stated, the law is with the plaintiff, and the said claim is a lien against said premises, then judgment to be entered for the plaintiff for the sum of $291, with legal interest from December 10, 1888, together with twenty per centum advance thereon; but if not, then judgment to be entered for the defendant; the costs to follow the judgment, and either party to have the right to sue out a writ of error therein.
The court after argument entered judgment upon the case stated for the plaintiff, White, J., filing the following opinion:
' 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 good1 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 cent penalty, from the owner. While this police regulation is based on the taxing power, it is in no sense a tax. It is altogether different from an assessment for opening or paving streets, or construction of sewers, etc.
The footwalk in front of defendant’s property, by the case stated, “ was in such a state of decay, that it was dangerous to the life and limbs of persons passing over the same, and it was necessary for the safety of pedestrians passing along the said street, that a new footwalk be substituted.” In pursuance of the general borough ordinance, notice was given the defendants, requiring them to construct a new footwalk, which they neglected to do, and the borough then caused it to be constructed, this suit being for the amount of expense and penalty.
The - fourth section of the charter of defendants, act of March 25, 1871, says: “ All the estates and properties of the corporation hereby created, shall be free from taxation.” No doubt, this section exempts the property from all taxes proper, and also from municipal assessments of a general character, which stand on the footing of taxes. But under the powers given in the act to boroughs, they have right to require property holders to keep the footwalks in front of their property in a safe condition for passing pedestrians. This is among the enumerated police powers of the borough. This footwalk was not in such condition ; it was “dangerous to the life and limbs of persons passing over it.” After notice and demand to repair it, and neglect or refusal so to do, the borough, in pursuance of express authority given in the act, constructed the footwalk, and now seeks to recover the amount, with the penalty also expressly authorized by the act. We think this does not come within the letter or spirit of the exemption clause in defendant’s charter, and they are liable. The power to pave a footwalk and charge the owner, includes the power to re-pave when it becomes necessary: Smith v. Kingston Bor., 120 Pa. 857.
And now, June 29, 1889, after argument on the case stated, and consideration thereof, the court is of opinion that the law is with plaintiff and judgment is entered for plaintiff in the sum of $291, with interest thereon from December 10, 1888, and 20 per cent advance thereon.
Thereupon the defendant took this appeal, specifying that the court erred: 1-2. Ip entering judgment for the plaintiff on the case stated. 8. In not entering judgment thereon for the defendant.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
