
    Hunter’s Appeal. Philadelphia’s Appeal. [Trustees of the Academy of the Protestant Episcopal Church, in the City of Philadelphia, v. Hunter, Receiver of Taxes, and the City of Philadelphia.]
    The legislature has no power to grant exemption from taxation for any property not specifically enumerated in article IX, § I, of the constitution, which provides that the legislature “ may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial, not used or held for private or corporate profit, and institutions of purely public charity,” and that “all laws exempting property from taxation other than the property above enumerated shall be void.”
    . The Act of May 14,1874, which provides that “ all hospitals, universities, colleges, seminaries, academies, associations and institutions of learning, benevolence or charity, with the grounds thereto annexed, and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity,” shall be exempt from county, city, borough, bounty, road, school and poor tax, does not exempt, from the payment of municipal taxes, an academy, founded and endowed by public and private charity, but substantially maintained by tuition fees received from its scholars.
    March 21, 1888.
    Appeal and Certiorari, No. 173, July T. 1887,. to review a decree of C. P. No. 4, Phila. Co., in equity, granting a special injunction, restraining the collection of taxes, at Dec. T.. 1886, No. 896.
    The complainants averred in their bill as follows:
    I. That the “Academy of the Protestant Episcopal Church” was agreed to be established, at a, meeting of the subscribers to said Academy, held in Christ Church, Philadelphia, January 1, 1785, at which time and place the fundamental laws of the said Academy were enacted, providing, among other things, that “ the entire government of the Academy shall be in trustees, not exceeding sixteen in number,” who shall be styled “ The Trustees of the Academy of the Protestant Episcopal Church in the City of Philadelphia”; and further providing as follows: “ 4th. A convenient number of youth shall be taught gratis, as soon as the funds shall appear to afford it; in the meantime, it shall be kept in view, as an object of the institution ; and all gifts or bequests for this special purpose shall be kept a fund, to be applied to no other purpose whatever.”
    The sum subscribed and paid, including all subsequent contributions, amounted to £4,214 7s. lid.
    II. By Act of March 29, 1787, entitled “An Act to incorporate and endow the Academy of the Protestant Episcopal Church in the City of Philadelphia,” it was enacted, inter alia, as follows:
    “Seo. 1. Whereas, It is right and proper to afford all due encouragement to the education of youth, and to the establishment of useful seminaries of learning within this State; And Whereas, :a number of persons of the Protestant Episcopal Churches in the City of Philadelphia, and others, have instituted an academy, and subscribed and given divers sums of money for purchasing a lot of ground and erecting a building or buildings thereon, for the purpose of establishing and supporting a Protestant Episcopal Academy in the said city; And whereas, the Trustees of the said Academy have petitioned this house to be incorporated for the more effectually carrying into execution the original design of the said subscribers ;
    “ Sec. 2. Be it therefore enacted, etc., That there shall be established in the City of Philadelphia an academy for the education of youth in useful branches of learning, by the style, name and title of ‘ The Academy of the Protestant Episcopal Church in the City of Philadelphia.’ ”
    By section 3 of the same Act, the persons before named were constituted the Trustees of the said Academy, and declared to be one body politic and corporate, with perpetual succession in deed and in law, to all intents and purposes whatsoever, by the name, style and title of the “ Trustees of the Academy of the Protestant Episcopal Church in the City of Philadelphia,” and were empowered, among other things, to hold, for the use of the said Academy, any estate in any lands or tenements, to erect necessary and convenient buildings, etc.
    By subsequent sections, the number of trustees of the Academy was fixed at sixteen, with power to enact by-laws and ordinances for the government of the Academy, not repugnant to the laws of this state.
    Sections 7, 8 and 9 provided for the granting, locating, setting out and surveying of ten thousand acres of land within the unappropriated lands (belonging to the state) for the use of the said Academy at the charge of the state. The Act of incorporation and the supplement of April 15, 1734, were made a part of the bill.
    In the autumn of 1788, a free school for boys and another for girls had been opened.
    
      III. From time to time various charitable bequests were received by the Academy, some, for general purposes and some in aid of free scholars. In February, 1849, the trustees secured the lot on which the Academy building now stands, on the southwest corner of Locust and Juniper streets. With proceeds of land given by the state, together with general funds given by the Academy, suitable buildings were soon after erected, with accommodations for about two hundred pupils.
    Relying on the legislative enactments exempting the property of colleges and seminaries of learning from taxation, the complainants have, from time to time, devoted the proceeds of sundry investments and of the remaining lands which were granted to them by the state, to enlarging and improving the Academy building, adding wings thereto, and otherwise rendering it complete in its ¡sanitary and hygienic conditions, and they now have a building which is generally acknowledged to be admirably adapted for its purposes.
    IY. Quoted in the opinion of the supreme court.
    Y. Averred charitable uses and the right to equitable aid.
    YI. Averred freedom from taxation from 1849 to 1886, and recited art. ix, § 1, of the constitution and the Act of 1874.
    YII. The building, situate at the corner of Locust and Juniper streets, is used exclusively for the educational purposes of the Academy and for furnishing a chapel, laboratory, gymnasium, study and recitation rooms. It has never been used for any purpose yielding income or pecuniary profit of any kind to any one, but has always been actually used, occupied and enjoyed for the purposes of an academy or institution of learning, as contemplated by the charter.
    The building and premises so occupied, being properly used and necessary for the occupancy and enjoyment of said Academy, is and always has been exempt for the payment of taxes under the general laws and constitution of this commonwealth, whereby it is able to devote its entire income to educational and charitable purposes.
    YIII. Recited assessment of the premises, Locust and Juniper streets, at $70,000.
    IX. Recited powers of receiver of taxes under Act of April 19, 1883, P. L. 9.
    The complainant, alleging that defendant intended and threatened to collect said tax, further averred that the whole of the building and property, which it is proposed to charge with such taxes, is an institution of learning and charity, which was founded, endowed and is maintained as such from the proceeds of land granted to it by the state of Pennsylvania, from the income arising from the bequests of benevolent persons, and from the tuition fees paid by such of the pupils as are not free scholars, no profit of any pecuniary character being obtained by the trustees and governors of the Academy, and that said Academy is an institution of purely public charity.
    
      And the complainants further aver, that any tax levied will result in nothing but diminishing the fund that is applied to increase and maintain the educational facilities of the institution, and for the increase of free scholarships, and will not in any manner be paid out of any fund which any individual could lawfully apply to his own uses; that the institution is an academy founded, provided, endowed and maintained by public and private charity, and therefore the said institution is within the express provisions of the statute, and is lawfully exempted from taxation.
    The prayers were : 1, that the institution be declared a purely public charity, as well as an institution of learning, benevolence or charity; 2, an injunction; and, 3, general relief.
    On injunction and special affidavits, accompanying the bill, the court granted a preliminary injunction, and subsequently, on motion, continued it, until further order of the court, in an opinion, by "Willson, J., reported in 4.Pa. O. O. R. 66.
    The supplement of April 15, 1834, provided, inter alia, as follows :
    
      “ Sec. 2. It shall and may be lawful for the said corporation to employ their general funds, or any part thereof, for the support of the free school, or for any of the other objects prescribed or recognized either by the said fundamental laws dr by the said act to which this is a supplement, but not to employ any part of the funds expressly given for the free school to any object unconnected therewith.”
    
      The assignments of error specified the action of the court, 1, in continuing the injunction; 2, in granting the injunction; and, 3, in not dissolving it.
    
      Robert Alexander, assistant city solicitor, with him Thomas D. Finletter, assistant city solicitor, and Charles F. Wa/rwick, city solicitor, for appellants. — The property cannot be exempted by an Act of the legislature, unless it is the property of an “ institution of purely public charity,” because it is not within any of the other enumerated kinds of property which the constitution permits the legislature to exempt. Art ix, § 1.
    In Donohugh’s Appeal, 86 Pa. 306, known as the Philadelphia Library case, this court decided that purely public charities were not confined to institutions controlled and administered by the state, but included private institutions of a purely public character not administered for private gain. The courts, however, have never decided that all library companies, academies and institutions of like character are purely public charities. It may well be that in one sense all academies are charities, and yet not charities in the constitutional sense of purely public charities.
    If there is any charity whatever in an educational institution, it is to the students who are- the beneficiaries; and if the students are compelled to pay, it is nothing to them whether the building is .constructed on endowments or on borrowed funds. An academy, so endowed, where students pay for that which they receive, is not a purely public charity within the meaning of the constitution. Thiel College v. Mercer Co., 101 Pa. 530; Delaware Co. Institute v. Delaware Co., 94 Pa. 163; Miller’s Ap., 10 W. N. C. 168.
    Under the Act of 1874, an academy, to be exempt, must be founded, endowed and maintained by public or private charity.
    As to the foundation and endowment: Under the Act of incorporation, nothing is said about a free school or charity. Even in the original agreement, free education is not the sole object. The Act of 1834 limited the application of the free school funds alone. It is not averred in the bill that the property was purchased with these funds.
    As to the maintenance: It appears by the catalogue that about 200 pupils attend. The academy is therefore maintained by the nine-tenths of the pupils who pay. But, to entitle it to exemption, it must be maintained by charity. Thiel College v. Mercer Co., supra. In Miller’s Ap., supra, the schools were supported for the most part by charity; see opinion of court below in 10 Luz. Leg. Reg. 27.
    
      George Tucker Bispham and George 3f. Gonarroe, for appellees. —Churches and educational institutions have always been exempt. Christianity is part of the common law of Pennsylvania. Updegraph v. Com., 11 S. & R. 394G400.
    Charitable uses embrace objects of a religious, literary and scientific character, as well as those which relate to the poor and afflicted. Price v. Maxwell, 28 Pa. 36; Jackson v. Phillips, 14 Allen, 566. The principles of the statute for charitable uses have been adopted in Pennsylvania. Wright v. Linn, 9 Pa. 435 ; Pickering v. Shotwell, 10 Pa. 26. Gifts for charitable uses are favored. Domestic Society’s Ap., 30 Pa. 433.
    The Act of April 16, 1838, exempted from taxation “ all universities, colleges, academies and school-houses, belonging to any county, borough or school district, or incorporated, created, or established by virtue of any law of this Commonwealth, with the grounds thereto annexed.”
    Between 1838 and 1873, one hundred and sixty-seven special Acts were passed exempting specified real estate from taxation. This was felt to be an abuse. Article ix, § 1, of the new constitution, was intended to remedy this abuse.
    No debate took place in the constitutional convention as to the words “ purely public charity.” Those words were already in the new constitutions of five states, one of them, Ohio, as far back as 1851. The legislatures of those states had interpreted the words “ purely public ” to mean not “ with a view to profit.” This legislative interpretation has been followed by the courts. Gerke v. Purcell, 25 Ohio St. 229; approved in Burd Orphan Asylum v. School District, 90 Pa. 35; Humphries v. The Little Sisters, 29 Ohio St. 205; Comrs. of Hennepin Co. v. Brotherhood of Church of Gethsemane, 27 Minn. 460; State v. Powers, 10 Mo. Ap. Cas. 263; Gooch v. Asso. for Relief of Aged Females, 109 Mass. 558,. 567; McDonald v. Hospital, 120 Mass. 432.
    The word “and” in the Act of 1874 may well be interpreted “ or,” so that an original gift to a benevolent object may be quite sufficient to impress a charitable character upon property without regard to the fact that the maintenance thereof may be from sources other than voluntary offerings. But it is not necessary to rely upon this view. It is enough to point out that it is not essential that the charity should be exclusively maintained by charitable funds. A partial maintenance from other sources does not render it any the-less a charity. Donohugh’s Ap., supra.'
    In the Thiel College case, not a single charitable element existed.. It was not even alleged that a solitary charity pupil was within its walls, or that it had in contemplation that there ever should be a pupil of that kind.
    In Miller’s Appeal the buildings were used as convents — in the-sense of being merely residences or dwellings of a number of persons who devoted themselves to good works. Besides, no part of the funds were necessarily applicable to free education.
    Oct. 1, 1888.
   Sterrett, J.,

In appeals from interlocutory orders and decrees such as this, our almost invariable practice is not to discuss the questions that then appear to be involved, because, at that stage of the proceeding, the facts are seldom, if ever, fully developed, and, after the cause has proceeded to final hearing and decree on the facts found by the master and court below, it is likely to be brought before us for review on appeal by the unsuccessful party.

This appeal is from a preliminary injunction restraining appellants from collecting certain taxes assessed against appellees’ real estate, and subsequent decree continuing the injunction “until further order of the court.” The sole ground on which the injunction was asked is that the property in question is exempt from taxation under section 1, article ix of the constitution, in connection with the Act of May 14, 1874, passed for the purpose of carrying into effect the provisions of that section. The constitution declares : “All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be-levied and collected under general laws; but the General Assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public charity.” Section 2 of same article declares :: “All laws exempting property from taxation, other than the property above enumerated, shall be void.”

The Act, above referred to, entitled “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,” declares “ that all churches, meeting-houses, or other regular places of stated worship, with the grounds thereto annexed necessary for the occupancy and en joyment of the same; all burial grounds not used or held for private or corporate profit; all hospitals, universities, colleges, seminaries, academies, associations and institutions of learning, benevolence or charity, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity, and all schoolhouses belonging to any county, borough or school district, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same; and all court-houses and jails, with the grounds thereto annexed, be and the same are hereby exempted from all and every county, city, borough, bounty, road, school, and poor tax: Provided, That all property, real or personal, other than that which is in actual use and occupation for the purposes aforesaid, and from which any income or revenue is derived, shall be subject to taxation, except where exempted bylaw for state purposes, and nothing herein contained shall exempt the same therefrom.”

It will be observed that the constitution clearly specifies the kinds of property which the legislature is authorized to exempt from taxation; and, of course, any attempt to exempt other property not specifically enumerated must necessarily be abortive. It follows, therefore, that the real estate in question is not within the provisions of the exemption Act, unless the academy to which it belongs is an institution of purely public charity, because it is not within any of the other enumerated kinds of property which the legislature is authorized to exempt; nor can it be within the Act unless the institution is “ founded, endowed and maintained by public or private charity.” The Act itself, in express terms, makes the latter an essential condition of exemption from taxation. It is not enough that the institutions named in that clause of the Act be founded and endowed by public or private charity. They must also be substantially maintained by public or private charity; and therein is the fatal defect in appellees’ case. In the 4th paragraph of their bill, it is averred: “ The academy is maintained from the income derived from such property as has been given to or purchased by it, and from fees for tuition, which are at a much lower rate than institutions of a like grade. No rent is charged for the use of the academy, and all the receipts and income of the incorporation, after defraying the necessary expenses of maintenance, teachers’ salaries, etc., are applied to increasing the number of free scholars. The number of free scholars has ranged from sixteen to thirty, and, in addition, there are and have been half-pay scholars in number ranging from fifteen to twenty. The education of free and half-pay scholars is aided materially by the amount received from tuition fees. Any surplus above the necessary expenses of the institution is devoted to a fund to enlarge the free scholarships, and for every $2500 accumulated, it is provided that an additional free scholarship shall be maintained.”

What proportion of the amount expended in maintaining the academy is derived from tuition fees does not appear, but it is claimed and virtually conceded tliat the institution is mainly dependent on tuition fees to meet its current expenses — that probably not less than seven-eighths of the amount required is derived from that source. It was incumbent on appellees to show that the institution under their care is at least substantially maintained by public or private charity. This has not been done. On the contrary, it may be fairly inferred that its chief source of maintenance is and has been tuition fees. If so, it cannot, in the constitutional sense, be regarded as an institution of purely public charity. In principle, the case is not distinguishable from Thiel College v. Mercer County, 101 Pa. 530, or Miller’s Appeal, 10 W. N. C. 168. In the latter, the facts disclosed by the record presented a much stronger claim for exemption than the case now under consideration. Hut it is not our purpose at present to do more than indicate the ground upon which, as the facts now appear, the injunction should be dissolved.

Decree reversed, and injunction dissolved at the cost of the appellees. J. C. S.  