Davie v. Rochester Cemetery Ass'n

• Decision Date: 02 December 1941
• Citation: 23 A.2d 377
• Parties: DAVIE v. ROCHESTER CEMETERY ASS'N.
• Court: New Hampshire Supreme Court

23 A.2d 377

DAVIE

v. ROCHESTER CEMETERY ASS'N.

Supreme Court of New Hampshire. Strafford.

Dec. 2, 1941.

Transferred from Superior Court, Strafford County; Connor, Judge.

Petition by John S. B. Davie, Commissioner of Labor, against the Rochester Cemetery Association for a declaratory judgment determining whether the defendant association was a charitable or religious organization so as to be excluded from operation of the Unemployment Compensation Act. Transferred on agreed facts and certain documentary evidence.

Judgment for defendant.

Petition, for a declaratory judgment. The plaintiff is the Commissioner of Labor, and the defendant is a voluntary corporation organized on October 15, 1864, under the provisions of chapter 145 of the Revised Statutes.

At the time of the filing of the petition the defendant had in its employ a sufficient number of persons to subject it to the provisions of the Unemployment Compensation Act, but claimed immunity under one of the so-called employment exclusions of that act which provides that the term "employment" as used therein shall not include "Service performed in the employ of a corporation * * * organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, * * * no part of the net earnings of which inures to the benefit of any private shareholder or individual." Laws 1935, c. 99, § 1, cl. VI (f); Laws 1937, c. 178, § 1, cl. I (4) (f). The plaintiff seeks an interpretation of the act as it existed before the passage of the amendment of 1941, which expressly excludes service performed in the employ of a cemetery company. Laws 1941, c. 103, § 4.

The prayer of the petition is that a declaratory judgment be rendered decreeing that the defendant is not a charitable or religious organization, but that it is an employer subject to the provisions of section 1, cl. I (4) (f) of chapter 178 of the Laws of 1937. Transferred by Connor, J., on agreed facts and certain domumentary evidence, the parties having waived any question "as to the procedure employed in bringing these questions to the attention of the court."

Dixon H. Turcott, of Concord, for plaintiff.

Cooper, Hall & Grimes, of Rochester, for defendant.

MARBLE, Justice.

In order to determine whether a particular organization is "charitable" in the sense in which that word is used in a tax-exemption statute, resort must be had "to the accepted doctrine respecting charitable uses," and that institution is charitable the property and funds of which are devoted to such purposes as would support the creation of a valid charitable trust. In re Vineland, etc., Society, 66 N.J.Eq. 291, 295, 56 A. 1039.

In construing a statute exempting from taxation the property of charitable societies, this court has said: "* * * if an institution is organized and conducted to perform some service of public good or welfare, with no pecuniary profit to its officers or members, and with no restrictions which confine benefits to them, its descriptive character as charitable * * * follows." Young Women's Christian Ass'n v. Portsmouth, 89 N.H. 40, 43, 192 A. 617, 619.

The quoted words aptly describe the general purpose and scope of the defendant's activities. The burial of the dead is a matter of public concern (Tuttle's Petition, 80 N.H. 36, 39, 112 A. 397); the members of the association derive no profit from the enterprise, and the benefits of the organization are not restricted to its membership.

The charitable nature of gifts for the upkeep of cemetery lots is recognized in this jurisdiction (Rollins v. Merrill, 70 N.H. 436, 437, 48 A. 1088), and cemetery corporations as well as the trustees of towns are authorized by statute to hold funds in trust, "to apply the income thereof to the improvement, watering or embellishment of the cemetery, or to the care, preservation or embellishment of any lot or its appurtenances." P.L. c. 55, § 11.

"If there is wide public advantage in decent care for a single family lot and monument, a fortiori there is a social interest in the maintenance of a plot where the dead of a town, city, or county are buried." 2 Bogert, Trusts and Trustees, § 377, p. 1200. It follows, therefore, that a trust for the maintenance of a public cemetery is charitable. Drury v. Sleeper, 84 N.H. 98, 99, 146 A. 645, and cases cited; Restatement, Trusts, § 374, Comment h. And a cemetery, though maintained by a private corporation, may fairly be deemed a public burial ground if it "is open, under reasonable regulations, to the use of the public for the burial of the dead." Starr, etc., Ass'n v. North Lane Cemetery Association, 77 Conn. 83, 58 A. 467, cited with approval in Brown v. Park Cemetery, 78 N.H. 387, 388, 101 A. 34.

The cemetery for the care of which the defendant association was organized is known as the Rochester Cemetery, a brief history of which is contained in one of the documentary exhibits. The following paragraphs are quoted from this history:

"For several years the necessity of having more ample grounds and conveniences for the burial of the dead had been strongly felt by the citizens of Rochester. The old burying ground laid out by the town in the year 1800 had become crowded and was wholly inadequate since the great increase of the town's population to meet the requirements of the people.

"Mr. W. F. Farington had made a small addition to it which was quickly taken up. During the years 1863-4 the subject of a new ground was much agitated. Once or twice, when there seemed a prospect of accomplishing the object, the hope was disappointed because the people were divided as to the most suitable location. The subject was kept alive, however, by articles which occasionally appeared in the Rochester Courier. * * *

"During the summer of 1864 an earnest endeavor was made by a few individuals to purchase of W. F. Farrington the ground which now forms the new cemetery. Much difficulty was experienced in agreeing upon terms; but finally a bargain was closed and on the 9th of September 1864, Eben G. Wallace and Frank McDuffee took a deed of the land in their own names and advanced the purchase money, in order to secure it for an association when such should be formed. * * * Steps were immediately taken to form an Association under the statutes providing for the forming of voluntary associations.

"Several informal meetings were held for this object at which preliminary measures were adopted. Upon Saturday the fifteenth of October the first legal meeting was held and an organization effected.

"* * * Upon the afternoon of Sunday October 30 * * * the cemetery was...