Appeal, No. 129, March T., 1953, from order of Superior Court, April T., 1952, No. 119, affirming order of Court of Common Pleas of Allegheny County, April T., 1950, No. 834, in case of Longvue Disposal Corporation v. Board of Property Assessment, Appeals and Review of Allegheny County. Order affirmed.
Leonard Boreman, Special Counsel, with him Nathaniel K. Beck, County Solicitor, for appellant.
Alan D. Riester, with him Paul W. Brandt, William W. Milnes and Brandt, Riester & Brandt, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
This case involves the right of the plaintiff corporation to exemption from local real estate taxation as a quasi-public body performing a service essential to
the public welfare. The question was raised by the corporation's appeal to the court of common pleas of Allegheny County from the assessment of its property made by the county Board of Property Assessment, Appeals and Review. The court sustained the appeal and directed the board to transfer the property involved from taxable to tax exempt on its records. Upon appeal by the county, the Superior Court affirmed: see 172 Pa. Superior Ct. 359, 93 A.2d 865. On the county's representation that the allowance of the exemption was an unwarranted extension of the principle involved, we granted an allocatur. It is unnecessary here to restate the facts in detail.
While the basis for the exemption from local taxation of real estate of quasi-public corporations performing essential public services has unvaryingly been ascribed to this court's early pronouncement in Schuylkill Bridge Co. v. Frailey, 13 S. & R. 422 (1826), the decision in that case was in no sense a judicial promulgation of an exemption from taxation. Nor could it have been intended so to be. A court is without power to create such an exemption. "Exemption is controlled by the Constitution and by statute [footnote indicated.]. 'The claimant of exemption from taxation must show affirmative legislation in support of his claim, and his case must be clearly within it.'": Dougherty v. Philadelphia, 314 Pa. 298, 301-302, 171 A. 583, quoting from Philadelphia v. Barber, 160 Pa. 123, 126, 28 A. 644. Certain it is that exemption from taxation of property of public utilities does not derive from any existing statute.
What the Schuylkill Bridge Co. case decided, and all that it decided, was that the privately owned toll bridge involved in that case was not within the category of items of property specified by the taxing statute there in question (Act of April 11, 1799, 4 Dall.
L. 508) and consequently was not subject to the tax imposed pursuant to that Act. So much is plainly evident from the opinion of Chief Justice TILGHMAN who stated that "The right of the legislature to impose a tax is not denied, but it is denied that this, or any other bridge, is one of the articles designated for taxation, by the act of assembly." From the fact that a bridge was not expressly included in the list of enumerated articles made subject to the tax imposed by the Act plus the fact that the statute did not provide a method for determining the value of a toll bridge, the court concluded that the bridge in question did not fall within the intended scope of the Act. In the course of the opinion for the court, the learned Chief Justice opined, as a probable reason for the legislative policy of excluding bridges from taxation, that "It might have been thought impolitic to damp that spirit of enterprise, which might lead to the construction of bridges over all our rivers; an object of vast importance to the state, and not to be accomplished without great cost and hazard" and then further volunteered that "... the companies by ...