Concurring opinion
Mays, J.,September 4, 1945. — On December 30,. 1942, plaintiff acquired two tracts of land from the Laureldale Cemetery Company, the one containing 108.575 acres, excepting therefrom 7.157 acres appropriated by the Pennsylvania Schuylkill Valley Railroad Company, and 2.595 acres appropriated by the Berks and Lehigh Railroad Company, and the other containing 15 acres and 123 perches. In the fall of 1942 the above tracts and one other containing 10.3 acres were assessed in the name of the Laureldale Cemetery Company at $40,000. The record fails to disclose that there was any appeal from this assessment. However, on or about April 20,1943, the complainant caused an application to be filed with the County Commissioners of the County of Berks for the exemption from taxation of the aforesaid premises. This was refused by the commissioners.
On June 18, 1943, the complainant filed a bill in equity which, amongst other things, prayed for a decree that the real estate (tracts nos. 1 and 2) be declared lawfully exempt from all taxes for school, township, county or institution district purposes. At the trial Mr. Wolfe, for complainant, as the record discloses, propounded this question:
“Now, can we stipulate at this time, Mr. Muth, that the parties have agreed to eliminate from the tract of *210land which is in issue in this case, the tract lying to the south of the public road running from the Reading and Pottsville Turnpike to Temple and the tract lying to the east of the Pennsylvania Railroad right of way?”
Whereupon Mr. Muth, solicitor for the County of Berks, stated:
“I agree to that, with this addition, that these two small tracts, being part of the property of plaintiff, one of them containing 15.77 acres and the other 10.3 acres, have been separately assessed for tax purposes for the County of Berks and the School District and the Township of Muhlenberg by agreement of plaintiff.”
Paragraph 4 of plaintiff’s bill, in referring to the two tracts, one containing 98.82 acres and the other 15 acres and 123 perches, averred that “the said premises, together with the buildings and improvements thereon, are used exclusively as a cemetery. They are not used by any third person for any other purpose”. Mr. Wolfe, for the complainant, made the assumption that in view of the elimination of two tracts, paragraph 4 of the bill of complaint is no longer in issue, whereupon Mr. Muth stated:
“I don’t think I can agree to your proposition with reference to paragraph 4 because it may appear that portions of tract no. 1, containing 98.82 acres, may also not be used for cemetery purposes, and that I don’t know.”
Because of the conclusion that I have come to, I need only apply the law to the facts which I have just set forth.
In 1942, when the assessment was made, the land was owned by the Laureldale Cemetery Company, a corporation for profit, and was assessed as one property. At that time surely there was no right of exemption. It was not only the right of the taxing authorities, but their duty, to assess the property for taxation. On December 30, 1942, as already pointed out, there *211was a conveyance of this property to the complainant who, according to the bill, claims that some of the land so assessed for the taxing year 1943 was exempt. Even if that right was in the complainant, it should have appealed from the refusal of the county commissioners to declare the property exempt. In Dougherty v. City of Philadelphia et al., 112 Pa. Superior Ct. 570, it was said (p. 578) :
“In the case of Laymen’s Week-End R. L. of Phila. v. Butler, 83 Pa. Superior Ct. 1, 6, we said: ‘As part of the property is not exempt from taxation it follows that the bill in equity was rightly dismissed.’ The remedy available to the owner was an appeal from the tax assessment . . . As part of the premises were subject to taxation, it therefore becomes necessary to dismiss the bill.”
This case was cited with approval in Kittanning Borough v. Armstrong County et al., 347 Pa. 108, 110. Chief Justice Maxey, at p. 110, said:
“Where part of a property is not exempt from taxation, a bill in equity to restrain collection must be dismissed . . .”
I do not have to give any consideration to the question as to whether the entire property as alleged in the bill was exempt. It is sufficient to say that the complainant in the subsequent year agreed that the tract containing 15 acres and 123 perches, and another tract containing 10.3 acres, were not tax-exempt. Whether the 10.3-acre tract is a part of tract no. 1,1 am unable to say. It is clear, however, that there is, according to the record, no conveyance to the complainant of any 10.3-acre tract. It is thus clear that the complainant concedes that some portion of the property as assessed in 1942 is taxable. It was held in Wynnefield United Presbyterian Church v. City of Philadelphia et al., 348 Pa. 252 (syllabus) :
*212“Where an owner of a tract of land concedes that part of it is taxable but contends that inadequate exemption has been allowed as to another part, the sole remedy is by appeal from the assessment, as provided by statute.”
It was definitely held in First Baptist Church of Pittsburgh v. Pittsburgh et al., 341 Pa. 568, that (syllabus):
“The jurisdiction of equity to restrain attempted taxation is limited to cases in which there is a total want of taxing power; in other cases the remedy is by an appeal to the common pleas from the action of the Board of Revision.”
Admittedly, in 1942 there was the power to tax. The decision of the taxing authorities was final and conclusive, no appeal having been taken from the assessment.
The taxes for the year 1943 were assessed in the latter part of 1942. They were by express terms of the statute liens from the date of their assessment. “All taxes . . . assessed on any property in this Commonwealth . . . are . . . declared to be a first lien on said property . . . : Act of May 16, 1923, P. L. 207, sec. 2, 53 PS §2022.
A similar provision of a statute was construed in City of Philadelphia v. Pennsylvania Institution, 28 Pa. Superior Ct. 421, 424, where it was said:
“Tax is assessed in Philadelphia prior to the beginning of the tax year, and the whole tax is due at the beginning of the year . . .
“No appeal having been taken from the assessment of the tax in question, the decision of the taxing officers became final and conclusive.
“It was said in Moore v. Taylor, 147 Pa. 481, that ‘the duty of taxing officers is quasi judicial, and it is well settled that when the general power to assess exists, the remedy for illegal taxation is by appeal. If *213none be given, neither the common pleas nor this court can reverse the judgment of the taxing officer’.
“It was decided in Shaw v. Quinn, 12 S. & R. 299, that the person charged at the beginning of the year is liable for the taxes of the whole year though he alien before the date of appeal.
“At the time the tax in question was charged and became payable, it was charged against the appellee and a lien against its land. It became so by the action of the taxing authorities, who fixed the liability according to the statute regulating the subject. We have not been shown any authority authorizing the court in a proceeding to enforce the collection of the tax so regularly assessed and filed, to relieve the property from the charge. The Act of April 26, 1893, P. L. 25, makes it the duty of the board of revision of taxes in any city of the first class, to add to the assessment books any real estate which had ceased to be entitled to exemption because no longer occupied and used for a purpose entitling it to exemption; said taxation to be for the proportionate part of the year, but no statute provides for the exemption of property for a portion of the year which may be applied during the tax year to such uses as exempted it from taxation.” '
If the complainant is entitled to exemption, the exemption does not start with the year 1943, but if it begins at all, it does not do so until the ensuing year.
Goodrich, Cir. J., in United States v. Certain Parcels of Land in Philadelphia, 130 Fed. (2d) 782, at p. 784; in discussing tax-exempt property, and when exemption applies, said:
“The result is supported also by the well-established doctrine in Pennsylvania that although property be-becomes exempt from taxation during the taxable year, the exemption does not begin until the ensuing year *214and taxes assessed prior thereto are neither diminished nor pro-rated.”
He cites as an authority W. G. Halkett Co. v. City of Philadelphia, 115 Pa. Superior Ct. 209, where the Superior Court affirmed, per curiam, the opinion of Judge Stern, who, at p. 210, said:
“That the taxes due January 1,1932, were collectible by the city is in the opinion of the court free from doubt. The law is certain to the effect that the taxable status of property is determined as of the time when the assessment is levied and the tax is due, and even if during the year the property is transferred to an owner in whose hands it is exempt, the exemption is not retroactive, but on the contrary does not commence until the next following date of assessment. There are many cases in Pennsylvania to this effect, as, for example, Philadelphia v. Pennsylvania Company for. the Instruction of the Blind, 214 Pa. 138.”
The bill should be dismissed.