dissenting.
This appeal is from a judgment entered in the court below for want of a sufficient affidavit of defense. To determine the sufficiency of the affidavit it is important to consider in the first place the character of the plaintiff’s claim; next the facts set ■out in the affidavit as the ground of defense; and finally, the rules of law applicable to the facts so averred.
The plaintiff’s claim is upon a municipal lien filed against a plot of ground now under the care of, and at one time many years ago, belonging to, the defendant society. This lien was filed for the cost of laying a water pipe or street main along the .street on which the burial ground fronts.
The affidavit alleges that the money charged to the defend.ant by the city for laying its own water pipes is a tax; and that as the burial ground is not held or used for private or for corporate profit it is exempt by law from all city taxes. It further .sets out that the land once owned by the defendant was laid out some sixty-five years ago into burial and vault lots several hundreds in number, and that these lots have been sold and ■conveyed in fee to individuals who own them and use them •exclusively as places of burial; and that these lots are exempt from taxation by the provision of the act of April 5,1859. We come now to glance at the legal questions thus raised. First, is the assessed cost of laying water pipe a tax ? The assessment is made under authority of the ordinance of June 2,1866, •which provides that whenever the city lays pipes for the convey*541anee of water along any street “ the owners of the ground in front whereof it shall be laid shall pay for the expense thereof the sum of one dollar for each foot front of his ground upon such street: ” Phila. City Dig. 176. This is a tax for a special purpose.' The pipe is not laid in the interest of the lot owner, or of the general public, but of the city, the owner of the water works. It serves the convenience of water buyers as well as of the city, the water seller, but it is not classed among the improvements for which benefits may be assessed against a lot holder by any act of assembly. The city can file a municipal lien to secure the assessment made against city property for the cost of any municipal improvement including, opening and grading of streets, paving and curbing, sewering, laying of foot walks, and for “ benefits,” resulting directly from such improvements, but the basis on which such assessments must stand is that they represent the cost of an improvement made to the property assessed, by the city, for which the owner should pay. It may also file a lien to secure “ the taxes, rates and levies ” assessed by it. The lien filed in this case rests on no appraisement of benefits by viewers. The laying of water pipe has never been treated as such a public improvement as authorizes or requires an ascertainment of the benefit resulting to the lot owner. The amount to be paid is fixed by ordinance. The object of the tax is to reimburse the city for a specific expenditure made largely for its own benefit and to increase its own profits as a dealer in water on a gigantic scale. The lien is therefore entered to enforce a tax and not to collect the assessed value of a betterment. In view of this fact is the burial ground exempt? The constitution expressly authorizes the exemption from taxation of all “ burial grounds not held or used for private profit.” The legislature by the act of May 14, 1874, proceded under that authority to declare all burial grounds not held or used for private or corporate profit exempt from all local taxation.
The affidavit of defense alleges that this burial ground is not held or used for private or corporate profit. If this be true then a good defense is shown. The lien being for a tax, and the ground being exempt by law from taxation there can be no recovery. But this ground is now owned by some hundreds of persons, each holding his own lot in fee, and using it solely as a place for burial. By the act of April 5, 1859, it is provided *542that “ whenever any lot or lots or the right of sepulture therein shall be granted to any person or family by any incorporated cemetery company, or church or religious congregation, within any common enclosure made by such company, church or congregation, as and for the perpetual burial of the dead, any and all lots so disposed of or used for burial shall hereafter be free and exempt from all taxation so long as the same shall be used or held only for the purpose of sepulture.” The act of April 8, 1878, passed for the express purpose of subjecting all real estate to taxation saves burial lots by a proviso declaring that “ no burial lots sold to individuals for burial of the dead shall be liable to levy and sale for any taxes whatsoever.” Not one of these lots could be legally assessed for taxes of any description. Still in this proceeding it is proposed to assess them all in spite both of the act of 1859, which protects the lot owner, and the act of 1874, which protects the society. What is still worse is that it is proposed to do this without notice to the lot owners who have for more than half a century held and used their lots for the burial of their dead. Some thousands of sleepers are resting in these little sacred enclosures. Over their remains stand the head stones and monuments which the willing hands, prompted by the loving hearts of survivors, have reared to mark the spot where their lost ones sleep, and to bear the name of the sleeper. Though they have not been owned by the corporation for two generations they are within the “common enclosure,” and are as it is claimed subject to the lien which has been filed against it. It is proposed to sell them all in a lump, upon a lien for a tax from which each and every one of them is ■exempt, and deliver to the highest bidder at a sheriff’s sale the graves of two generations with all that pertains to them.
The suggestion is as shocking to my sense of justice as it is •to my sensibilities. So far we have considered the subject as standing on ground untouched by precedent, but it is covered by our own cases. In Philadelphia v. St. James Church, 134 Pa. 207, we held that a church, which stands on no higher ground so far as its claim to exemption is concerned, is exempt from the cost of a water pipe laid in the adjoining street, and that a lien entered therefor cannot be enforced. In Philadelphia v. The Penna. Hospital for the Insane, 154 Pa. 9, we held the hospital to be exempt from the same charge viz: the cost *543of laying a water pipe in tbe street in front of the hospital grounds. The words used by the chief justice in a per curiam disposing of the last case are “ we think the hospital is exempt from the species of taxation attempted to be imposed in this case.” We have held a hospital liable to repair foot walks in front of its property because of the duty of a property owner to the public. This duty we said could be enforced by the exercise of the police power of the municipality, but so far we have carefully distinguished between a charge resting on a duty to the general public, and a charge made by virtue of the taxing power, and serving no purpose but to yield revenue to the authority imposing it. Upon general principles, and upon the authority of our own very recent cases, I would reverse this judgment.