C. A. Wagner Const. Co. v. City of Sioux Falls

• Citation: 27 N.W.2d 916,71 S.D. 587
• Decision Date: 31 May 1947
• Docket Number: 8895.
• Parties: C. A. WAGNER CONST. CO. v. CITY OF SIOUX FALLS et al.
• Court: Supreme Court of South Dakota

27 N.W.2d 916

71 S.D. 587

C. A. WAGNER CONST. CO. v. CITY OF SIOUX FALLS et al.

No. 8895.

Supreme Court of South Dakota

May 31, 1947

Rehearing Denied Aug. 29, 1947.

Boyce, Warren & Fairbank and Rex M. Warren, all of Sioux Falls, for plaintiff and respondent.

Roy D. Burns, of Sioux Falls, for defendant and appellant.

James O. Berdahl, of Sioux Falls, for defendant and respondent Woodlawn Cemetery.

ROBERTS Judge.

Defendant city entered into a contract with the plaintiff for the paving of a portion of Fourth Avenue in the City of Sioux Falls. The contract provided that the city would pay for the work by the issuance of 'certificates of special assessment, levied upon the property, in the manner provided by law.' After the work was completed the city issued and delivered to plaintiff contractor an assessment certificate against a ten acre tract belonging to Woodlawn Cemetery. The certificate states that the city made an assessment upon abutting property and that the property in question had been legally assessed in the sum of $1,846.54 payable in five installments. Woodlawn Cemetery declined to pay the assessment on the ground that its property was exempt from special assessments for local improvements. Plaintiff brought this action claiming that the city was primarily liable if it had no authority to make the assessment.

Woodlawn Cemetery was incorporated in July, 1905, as a nonprofit corporation under the provisions of Sections 770 to 779, Civil Code 1903, which with minor changes are now SDC 11.19. It originally acquired a tract of land within the corporate limits of the city of Sioux Falls, consisting of approximately eighty acres. This action has no relation to that property. A zoning ordinance adopted July 20, 1928 prohibits the use of property in a residential or commercial use district for cemetery purposes. Thereafter, and while that ordinance was in effect, Woodlawn Cemetery acquired title to a tract of approximately forty acres adjoining its cemetery grounds. This forty acre tract includes the land described in the assessment certificate and is within a part of the city which is restricted to commercial and residential uses as defined by the zoning ordinance. It has not been subdivided into burial lots or used for cemetery purposes.

The trial court held the property in question to be exempt from special assessment and the assessment thereon for the improvement of the street to be illegal and void. From a judgment rendered for the amount demanded in the complaint, the city has appealed.

The statute relating to cemetery corporations provides that 'All the property of every such corporation and the lots sold by it to individual proprietors shall be exempt from taxation, assessment, lien, attachment, and from levy and sale upon execution and all such real property shall be exempt from appropriation for streets, roads, or any other public uses or purposes.' SDC 11.1911. While an assessment for local improvements, which in this case was the paving of a street, is regarded as a species of taxation and the exercise of the taxing power, yet there is a clear distinction between the terms 'taxation' and 'assessments.' Winona & St. P. R. Co. v. City of Watertown, 1 S.D. 46, 44 N.W. 1072. Taxes are impositions for purposes of general revenue, while assessments are those special and local impositions upon property within a limited area which are necessary to pay for a local improvement and are imposed with reference to the special benefit which the property is supposed to have derived therefrom. A constitutional or statutory exemption from taxation is an exemption from ordinary taxes only and does not include special assessments for local improvements. Whittaker v. City of Deadwood, 23 S.D. 539, 122 N.W. 590, 139 Am.St.Rep. 1076. The city insists that the word 'assessment' in Section 11.1911, supra, is merely descriptive of a part of the process of taxation and should be construed as referring only to general taxes. We think that the addition of the word 'assessment' has the effect of broadening the exemption as pointed out by the court in the case of Oakland Cemetery Ass'n v. City of St. Paul, 36 Minn. 529, 32 N.W. 781: 'In this statute, both terms, 'taxes and assessments,' are used; the latter evidently in the sense above referred to, viz., burdens or charges to defray the expense of a local improvement. To give the word 'assessment' any meaning or force whatever, it must be held to mean something not included in the preceding word, 'taxes.' And it is a familiar rule that a statute should be so construed that, if it can be prevented, no clause, word, or sentence should be superfluous, void, or insignificant.'

Notwithstanding such construction of the statute, the city contends that there is no good reason for concluding that the legislature intended the exemption to apply to property not held and used by the corporation for purposes for which it was not created. Authority is conferred upon a cemetery corporation to acquire and to hold 'real property not exceeding one hundred sixty acres for the sole use and purpose of a burial ground.' SDC 11.1906. 'Whenever an interment is made in any lot transferred to an individual owner by the corporation, the same thereby becomes forever inalienable while any person is buried therein and descends in regular line of succession to the heirs at law of the owner.' SDC 11.1905. Whenever the officers of a cemetery corporation find it necessary to acquire additional land for cemetery purposes, they 'may proceed to have the land * * * condemned', if they cannot acquire it by purchase. SDC 11.1907. Such corporation has the power to improve its grounds and to prohibit improper use or ornamentation of lots and the duty is imposed upon its officers to adopt by-laws 'to the end that all the appliances, conveniences, and benefits of the public and private cemetery may be obtained and secured.' SDC 11.1908. Receipts derived from sale of burial lots, after payment of current expenses, must be 'exclusively applied, appropriated, and used in protecting, preserving, improving, and embellishing the cemetery and its appurtenances.' SDC 11.1910. As we have already pointed out, the property of such corporation is exempt from 'taxation, assessment * * * and * * * from appropriation for streets, roads, or any other public uses or purposes.' The policy as declared by these provisions had its beginning in territorial laws. Section 49, Chapter 15, Laws 1867, authorized cemetery corporations to 'hold land exempt from execution and from any appropriation to public purposes, for the sole purpose of a cemetery, not exceeding one hundred acres, which shall be exempt from taxation if used exclusively for burial purposes, and in no wise with a view to profit.' It may be noted...