Opinion by
Hendekson, J.,
That Mercersburg College has the general qualities of a public charity appears from all of the evidence. It had its origin in a charitable foundation and its enlargement by the acquisition of more land and an increased number of buildings was made possible by contributions to promote the education of young men. No one is excluded on account of religious belief or class distinction, and while there is a necessary limit to the capacity of the institution it affords the same opportunity for any boy desiring an education which may be found in any collegiate institution. Its activities are carried on without stockholders and without profit to the regents who exercise the functions of trustees. All of the income of the institution is applied to the increase of its efficiency and the enlargement of its capacity to educate. Its income derived from the charge for the education, board, lodging and other care of the students in attendance, from land cultivated, from books, athletic supplies used by thé students and from a small endowment fund for several years has exceeded the actual cost of maintenance leaving out of consideration the addition of buildings, the enlargement of some already built and other application of the fund having for its object the larger capacity for carrying out the educational plans of the managers. Because of the acquisition of this income in excess of the expenses for maintenance for the current year it was decided in Mercersburg College v. Poffenberger, 36 Pa. Superior Ct. 100, that the corporation was not a purely public charity and
was therefore not exempt from taxation under the Act of May 14, 1874, P. L. 158. After the decision in the case referred to the Act of March 24, 1909, P. L. 54, was passed. This act amended the act of 1874 so as to exempt, inter alia, colleges, seminaries, academies, associations and institutions of learning with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same founded, endowed and maintained by public or private charity provided that the entire revenue derived by the same be applied to the support of, and to increase the efficiency and facilities thereof, the repair and necessary increase of grounds and buildings thereof and for no other purpose. It is conceded that the language of this amendment covers the plaintiff’s case and the principal proposition of the appellants is that the act is unconstitutional. The argument is that institutions of “purely public charity” only exist as such when maintained by charitable contributions or when the income derived from the prosecution of its business does not exceed the cost of maintenance. It is not controverted that since the decisions in Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, and Episcopal Academy v. Philadelphia, 150 Pa. 565, an institution which is in its character and object a purely public charity does not cease to be such in respect to its liability for tax merely because it receives from those enjoying its benefits a sufficient sum to keep it in operation. That the contribution of the land, and buildings makes the charity possible is evident from every point of view. No rent is paid for the use of the real estate and there is therefore an annual charitable contribution to the institution in such use. The income from administration would not be sufficient to carry on the school and pay rent for the buildings which shelter it. In an important sense, therefore, the charity is not self-supporting although its income from tuitions and other sources more than meet the cost of instruction, board, lodging, etc. Without the constant reinforcement of the former charitable donations the school could not be maintained at all. Maintenance, too, in the
legislative view embraces a growth with the expanding conceptions of what is properly and necessarily implied in the training which should be given in a collegiate establishment. The enlargement of the buildings, the construction of a gymnasium and athletic field, the increase of the apparatus used for instruction in the physical sciences, improved methods of illumination and the decoration of the grounds to the end that the institution may become more efficient and attractive to those seeking places of education in harmony with the spirit of the age may well" be regarded as investments in the line of maintenance. Considerations of this character doubtless brought about the adoption of the act of 1909 which gives legislative interpretation to the article of the constitution above referred to and expressly includes those educational institutions in the class of purely public charities which are carried on without restriction as to classes even though the income derived by them from endowments and tuitions charged may at times exceed the cost of maintenance provided such excess is applied to the support of and to increase the efficiency and facilities of the institution, the repair and necessary increase of grounds and buildings thereof and for no other purpose. It was said in Donohugh’s Appeal, 86 Pa. 306, that “Especially is great respect due to the legislative construction of the constitutional provision where as in the present case it is a question not of private right but of public policy. For the preservation of individual rights whether as between man and man or between the citizens and the public or the government the courts are the natural guardians with special advantages of training and modes of procedure for the attainment of justice, but in the preservation as well as for the determination in the first instance of matters of state policy the proper tribunal is the legislature; and its construction of a constitutional mandate upon this subject must be held binding and conclusive until shown clearly and beyond a question to be in violation of the intention of the people in their sovereign ex
pression of their will through the constitution.” The principle thus expressed applies with force and conclusiveness against the argument of the appellants. In the same case it was held that the word “purely” should be interpreted so as to extend it to private institutions for purposes of purely public charity and not administered for private gain and that this interpretation best sub-served the public interests. We do not regard it as necessary to enter into a consideration of the numerous cases which have arisen out of the application of the act of 1874. That was effectively done in Mercersburg College v. Poffenberger, 36 Pa. Superior Ct. 100. The act of 1909, has more clearly defined the scope of the operation of the act of 1874 and has given interpretation to the constitutional provision with which we should concur. It is not so obviously clear that this is a misapprehension of the meaning of the constitution as to justify us in saying that the act in question is forbidden by the fundamental law. The objection that because the amendment of 1909 is in a proviso it must be regarded as a limitation rather than an enlargement of the statute amended is met by the decision in Com. v. Gregg, 161 Pa. 582, where it was said that generally speaking, the legislature is the exclusive judge of the form in which enactments shall be put and its mandate in that respect cannot be questioned unless it transgresses a plain prohibition in the constitution. There can be no doubt of what was intended in the enactment under consideration, and the language used is to receive the construction and to be given the effect which its evident meaning requires.
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Opinion by
Hendekson, J.,
That Mercersburg College has the general qualities of a public charity appears from all of the evidence. It had its origin in a charitable foundation and its enlargement by the acquisition of more land and an increased number of buildings was made possible by contributions to promote the education of young men. No one is excluded on account of religious belief or class distinction, and while there is a necessary limit to the capacity of the institution it affords the same opportunity for any boy desiring an education which may be found in any collegiate institution. Its activities are carried on without stockholders and without profit to the regents who exercise the functions of trustees. All of the income of the institution is applied to the increase of its efficiency and the enlargement of its capacity to educate. Its income derived from the charge for the education, board, lodging and other care of the students in attendance, from land cultivated, from books, athletic supplies used by thé students and from a small endowment fund for several years has exceeded the actual cost of maintenance leaving out of consideration the addition of buildings, the enlargement of some already built and other application of the fund having for its object the larger capacity for carrying out the educational plans of the managers. Because of the acquisition of this income in excess of the expenses for maintenance for the current year it was decided in Mercersburg College v. Poffenberger, 36 Pa. Superior Ct. 100, that the corporation was not a purely public charity and
was therefore not exempt from taxation under the Act of May 14, 1874, P. L. 158. After the decision in the case referred to the Act of March 24, 1909, P. L. 54, was passed. This act amended the act of 1874 so as to exempt, inter alia, colleges, seminaries, academies, associations and institutions of learning with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same founded, endowed and maintained by public or private charity provided that the entire revenue derived by the same be applied to the support of, and to increase the efficiency and facilities thereof, the repair and necessary increase of grounds and buildings thereof and for no other purpose. It is conceded that the language of this amendment covers the plaintiff’s case and the principal proposition of the appellants is that the act is unconstitutional. The argument is that institutions of “purely public charity” only exist as such when maintained by charitable contributions or when the income derived from the prosecution of its business does not exceed the cost of maintenance. It is not controverted that since the decisions in Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, and Episcopal Academy v. Philadelphia, 150 Pa. 565, an institution which is in its character and object a purely public charity does not cease to be such in respect to its liability for tax merely because it receives from those enjoying its benefits a sufficient sum to keep it in operation. That the contribution of the land, and buildings makes the charity possible is evident from every point of view. No rent is paid for the use of the real estate and there is therefore an annual charitable contribution to the institution in such use. The income from administration would not be sufficient to carry on the school and pay rent for the buildings which shelter it. In an important sense, therefore, the charity is not self-supporting although its income from tuitions and other sources more than meet the cost of instruction, board, lodging, etc. Without the constant reinforcement of the former charitable donations the school could not be maintained at all. Maintenance, too, in the
legislative view embraces a growth with the expanding conceptions of what is properly and necessarily implied in the training which should be given in a collegiate establishment. The enlargement of the buildings, the construction of a gymnasium and athletic field, the increase of the apparatus used for instruction in the physical sciences, improved methods of illumination and the decoration of the grounds to the end that the institution may become more efficient and attractive to those seeking places of education in harmony with the spirit of the age may well" be regarded as investments in the line of maintenance. Considerations of this character doubtless brought about the adoption of the act of 1909 which gives legislative interpretation to the article of the constitution above referred to and expressly includes those educational institutions in the class of purely public charities which are carried on without restriction as to classes even though the income derived by them from endowments and tuitions charged may at times exceed the cost of maintenance provided such excess is applied to the support of and to increase the efficiency and facilities of the institution, the repair and necessary increase of grounds and buildings thereof and for no other purpose. It was said in Donohugh’s Appeal, 86 Pa. 306, that “Especially is great respect due to the legislative construction of the constitutional provision where as in the present case it is a question not of private right but of public policy. For the preservation of individual rights whether as between man and man or between the citizens and the public or the government the courts are the natural guardians with special advantages of training and modes of procedure for the attainment of justice, but in the preservation as well as for the determination in the first instance of matters of state policy the proper tribunal is the legislature; and its construction of a constitutional mandate upon this subject must be held binding and conclusive until shown clearly and beyond a question to be in violation of the intention of the people in their sovereign ex
pression of their will through the constitution.” The principle thus expressed applies with force and conclusiveness against the argument of the appellants. In the same case it was held that the word “purely” should be interpreted so as to extend it to private institutions for purposes of purely public charity and not administered for private gain and that this interpretation best sub-served the public interests. We do not regard it as necessary to enter into a consideration of the numerous cases which have arisen out of the application of the act of 1874. That was effectively done in Mercersburg College v. Poffenberger, 36 Pa. Superior Ct. 100. The act of 1909, has more clearly defined the scope of the operation of the act of 1874 and has given interpretation to the constitutional provision with which we should concur. It is not so obviously clear that this is a misapprehension of the meaning of the constitution as to justify us in saying that the act in question is forbidden by the fundamental law. The objection that because the amendment of 1909 is in a proviso it must be regarded as a limitation rather than an enlargement of the statute amended is met by the decision in Com. v. Gregg, 161 Pa. 582, where it was said that generally speaking, the legislature is the exclusive judge of the form in which enactments shall be put and its mandate in that respect cannot be questioned unless it transgresses a plain prohibition in the constitution. There can be no doubt of what was intended in the enactment under consideration, and the language used is to receive the construction and to be given the effect which its evident meaning requires.
The appellants contend also that the act is unconstitutional because there is no reference therein to the Act of May 29, 1901, P. L. 319, amending the act of 1874 by which amendment as contended by the appellants the act of 1874was merged in the act of 1901, and thereafter ceased to be in force. The effect of the act of 1901 was to restrict the operation of the act of 1874 to the extent declared in the amending statute and on the principle announced in
Sewickley Boro. v. Sholes, 118 Pa. 165, would seem to be unconstitutional. The title to the act of 1874 is: “An act to exempt from taxation public property used for public purposes and places of religious worship, places of burial not used or held for private or corporate profit and institutions of purely public charity.” The title of the act of 1901 is: “An Act to amend Section one of an Act approved May 14, 1874, entitled,”' etc. As the original act was by its title one of exemption from taxation and the act of 1901 gives no intimation that it is to have the effect of subjecting to taxation property which was not theretofore hable it is apparently in violation of sec. 3, art. HI, of the constitution. However that may be, we do not regard the act of 1874 as repealed by the act of 1901. It is a more reasonable view to hold that the act of 1874 is in force amended by the act of 1901, if that be a valid enactment and if so there is no difficulty in the way of an amendment of the original enactment without reference to the intervening statute: Com. v. Kenneson, 143 Mass. 418; White v. Kings County Home, 141 N. Y. 123. The act of 1909 relates to a different subject from that covered by the amendment of 1901 and is not repugnant to the latter. A part of the property occupied and used by the college is held by lease from the Theological Seminary of the German Reformed Church in the United States. The property leased contains about four acres on which some of the buildings in use are located. The lease is for ninety-nine years for educational purposes at the nominal rent of $1.00 per annum. The charter of the Theological Seminary is not in evidence, but we may infer from all that appears in the case that the property was held for educational purposes and was transferred to the plaintiff to more effectually carry out the objects of its owner. It is claimed that this is not exempt from taxation because of the amendment of the act of 1874 by the act of 1901. We have already referred to the subject of the constitutionality of the latter statute, but if that be held to be valid we think the title exhibited by the
plaintiffs is such an interest as brings it within the exemption.
Objection is made that the college maintained a store in a room in one of the buildings which was conducted with profit and that this deprived the corporation of the privilege of claiming exemption as to that building. We do not understand from the evidence, however, that the store is conducted as a means of gain for the college. The evidence shows that its profits are turned over to the athletic association or department and that all of it is used in the payment of expenses incident to the maintenance of a ball club and other athletic organizations and to the payment of the expenses of similar organizations coming to the college to compete in physical contests. No rent for the room is received by the college, the apartment occupied is a small one and we do not find sufficient reasons under the evidence for holding that the room is leased or occupied by the college as claimed by the appellants.
A part of the tax was assessed by the county, a part by the borough, á part by Montgomery township, a part by Montgomery Independent School District and a part by the borough of Mercersburg. The court found that seventy-five acres of land were used as a truck garden and farm and not necessary to the occupancy and enjoyment of the corporation and therefore liable to taxation. The evidence does not clearly show how much of the property of the plaintiff is in the township and how much in the borough. We find on the record an admission by counsel that approximately twenty-one acres of the campus including the four acres of leased land are in the borough and twenty-four acres of the campus in Montgomery township. That part used for agricultural purposes and for a truck garden is not exempt from taxation. Such use of the property is convenient and perhaps profitable but in no sense a necessary or usual adjunct of an educational institution. The liability of property so used to taxation was decided in Sisters of the Blessed Sacrament, 38 Pa. Superior Ct. 640. The learned judge of the court be
low so held and the operation of the decree only went to the other property of the plaintiff. It may not be an easy matter to determine what part of the tax is chargeable to this property. All of it except about six acres is said to be in the township, and the assessment roll presumably shows the valuation put on it by the assessors, and a basis for apportionment is thereby obtained. Whether that can be done with regard to the six acres in the borough is more doubtful as that was apparently assessed with the other property. It may be practicable on application to the court below to determine that matter. The plaintiff contended that all of its property in the borough was exempt from taxation. Just what the relation of the small part of its holdings in the borough devoted to gardening bears to the college campus does not appear in the evidence, but we cannot regard it as equitable to charge the whole of the tax on the college property because it has been made to appear that this small portion is taxable. No provision has been made in the law for apportionment, but on equitable principles it has been held that such apportionment may be made where it appears from the assessment that such division can be arrived at: Phila. v. Barber, 160 Pa. 123. We conclude with the court below, however, that the decree should remain as to all of the plaintiff’s property except the land cultivated as a farm and the truck garden. This we understand to be the scope of the decree, as the learned judge expressly held that the land used for agriculture was not exempt.
The decree is affirmed at the cost of the appellants.