Greenbush Cemetery Association v. Van Natta
| Decision Date | 28 April 1911 |
| Docket Number | 6,926 |
| Citation | 94 N.E. 899,49 Ind.App. 192 |
| Parties | GREENBUSH CEMETERY ASSOCIATION v. VAN NATTA |
| Court | Indiana Appellate Court |
Rehearing denied June 28, 1911. Transfer denied January 11 1912.
From Montgomery Circuit Court; Jere West, Judge.
Suit by the Greenbush Cemetery Association against J. Lyndon Van Natta. From a judgment for defendant, plaintiff appeals.
Reversed.
E. P Hammond, William V. Stuart, Allison E. Stuart and Dan W. Simms, for appellant.
Charles E. Thompson and Whittington & Williams, for appellee.
Appellant is a cemetery association organized under a special charter enacted by the General Assembly of Indiana. This suit was brought to cancel and set aside an assessment, for taxation, of certain money belonging to appellant, made by the taxing officers of Tippecanoe county, with the assistance of certain special employes of the county, for the year 1903, and for nineteen years immediately prior thereto.
The errors assigned question the ruling on the demurrer to the second paragraph of appellee's answer and the correctness of the court's conclusions of law on the special finding of facts. Our conclusion on the latter question makes it unnecessary to consider the former. The substance of the special findings shows that on February 3, 1848 (Local Laws 1848 p. 444), the General Assembly of Indiana enacted a special charter for appellant; that said act named and created certain persons "a body politic and corporate by the name of Greenbush Cemetery Association of Lafayette," with full power to contract, sue and be sued, etc., and "to do and perform all and singular the several duties of said association necessary to carry into effect the objects of this incorporation."
Said charter further provided: "Section 6. All real estate held by said association for burial purposes, whether laid off into lots or not, shall be deemed a perpetual dedication of the same for the purposes aforesaid, and shall forever be held by said association in trust for such purposes and none other; and that no part thereof shall ever be used or sold by said association for any purposes whatsoever, except as in this act excepted. And all real estate so dedicated for the purposes aforesaid, with the ground occupied by the sexton's house, and the garden thereto attached, and any road owned by the association, connecting their said ground with any public street or highway, shall forever be exempt from taxation.
Section 7. Said association shall have authority to sell, grant and convey to any person or persons the sole and exclusive right of burial on any lot or lots in said cemetery, and of erecting tombs, * * * subject to such regulations as said association may prescribe; and every right so granted and conveyed shall be held for the purposes aforesaid, and for none other. * * *
Section 11. The proceeds arising from the sale of the lots in said cemetery shall be applied under the direction of said trustees as follows, viz.: (1) To enclosing said ground and pay the expenses of platting the same. (2) To providing suitable roads and walks to and from and through said cemetery. (3) To paying incidental expenses attending the management of the affairs of said association. (4) To reimbursing the persons named in the first section of this act, or their heirs or assigns, for the amount by them advanced for the purchase of any ground contemplated in this act, with interest thereon from the date of its advancement. (5) All moneys thereafter acquired by said association from the sale of lots in said cemetery shall be held in trust, and used exclusively for transacting the ordinary business of said association for the protection of said cemetery, and for embellishing, adorning and ornamenting the same, providing sufficient and permanent enclosures, roads and walks, and for planting shrubs, trees and other rural ornaments; and shall, upon no pretext whatever, be diverted from the objects contemplated in this section.
Section 15. This act shall be taken in all courts as a public act--shall receive a liberal construction, and shall be in force from and after its passage."
Pursuant to said charter, trustees were duly elected and title to eleven acres of real estate acquired and the land was platted into 2,890 lots, to be sold at a maximum price of $ 10 each; that said lots were sold at that price, except certain ones which were sold for less, and on August 15, 1903, all but thirty lots in said cemetery had been sold; that the amount of taxes claimed to be due is $ 1,919.98; that the funds arising from the sale of said lots over and above the immediate and necessary expenses incident to the maintenance of said cemetery, have been loaned by appellant at interest from time to time in the counties of Tippecanoe, White, Clinton, Benton and Jasper, from the time of the organization of the association up to the present time; that at the time this suit was commenced the loans outstanding amounted to $ 20,700, and appellant had on hand the further sum of $ 1,416.19 available and ready to be loaned; that said association has, from the date of its organization until the present time, been managed and controlled by a board of trustees, that has served without any compensation whatever, which board has sold said lots, received the money therefor, made improvements upon said cemetery, and kept and maintained it, and made all said loans; that the sole and only source of future income for said association is the interest that may be earned upon funds loaned and the future sale of said thirty unsold lots, at $ 10 each; that the annual expense of maintaining said cemetery in good order and condition, and in the manner in which it has heretofore been kept, will at all times aggregate the sum of not less than $ 1,750; that the moneys and credits assessed against appellant for taxation were the sole and only moneys and credits then owned and possessed by said association, and constituted the funds then owned and possessed by it, which had arisen from the sale of lots and the interest earnings upon the funds loaned, as aforesaid; that no officer of said association, nor any lot owner in said cemetery, nor any person interested therein, has ever received any pecuniary benefit therefrom; that said cemetery is located in a populous portion of said city, and is bounded and surrounded on all sides by residence properties; that at the time this action was commenced there were buried in said cemetery 4,414 persons; that all the funds assessed for taxation were held for no other use or purpose than paying the expenses of maintaining and keeping said cemetery in good condition, and for a perpetual loan fund, the income of which was intended to be used and applied to no other use or purpose than to pay the expenses of keeping and maintaining said cemetery; that the annual income, without paying taxes, is less than the annual expense of maintaining said cemetery.
On this finding of facts the court stated its conclusions of law in favor of appellee, that appellant take nothing by its suit.
The validity of the assessment for taxation of appellant's said property depends primarily on the provisions of its charter; also upon our general laws for the taxation of property and our legislative enactments relative to cemeteries, and especially the act of 1895. Acts 1895 p. 18, § 4708a Burns 1901. Our Constitution (Art. 10, § 1) authorizes the General Assembly to provide by law for a uniform and equal rate of assessment and taxation, "excepting such only for municipal, educational, literary, scientific, religious, or charitable purposes, as may be especially exempted by law." Property of cemetery associations, used exclusively for burial purposes, is within the class exempted by this provision. Oak Hill Cemetery Co. v. Wells (1906), 38 Ind.App. 479, 78 N.E. 350; Dwenger v. Geary (1888), 113 Ind. 106, 112, 14 N.E. 903.
Sections 10144, 10145 Burns 1908, Acts 1893 p. 12, Acts 1891 p. 199, § 6, provide, in substance, that church property, occupied as such, not exceeding ten acres, and every cemetery, shall be exempt from taxation, and that if such property, or any part thereof, is used or occupied for other purposes, the part so used or occupied shall be subject to taxation.
The act of 1895, supra, provides, in substance, that in all cases where cemeteries are incorporated under the laws of this State, upon such a basis that the corporation cannot derive any pecuniary benefit or profit therefrom, all the property and assets of such association so used exclusively for cemetery purposes shall be exempt from taxation. Former laws have also provided that properties of graveyards and cemeteries, not organized for pecuniary profit, are exempt from taxation. R. S. 1843 p. 208; 1 R. S. 1852 p. 106.
It is established in Indiana that laws are to be liberally construed in favor of equal taxation, and that statutes exempting property from taxation are strictly construed. State, ex rel., v. City of Indianapolis (1879), 69 Ind. 375, 35 Am. Rep. 223; Read v. Yeager (1885), 104 Ind. 195, 3 N.E. 856; Graham v. Russell (1899), 152 Ind. 186, 52 N.E. 806; Fleener v. Litsey (1903), 30 Ind.App. 399, 66 N.E. 82.
Statutes relating to the same subject-matter are in pari materia, and should be construed together when necessary to ascertain and make effective the legislative intent. State v. Gerhardt (1896), 145 Ind. 439, 461, 33 L. R. A. 313, 44 N.E. 469; Lincoln School Tp. v. American School Furniture Co. (1903), 31 Ind.App. 405, 68 N.E. 301; United States Sav., etc., Co. v. Harris (1895), 142 Ind. 226, 231, 40 N.E. 1072; Conn v. Board, etc. (1898), 151 Ind. 517, 51 N.E. 1062.
Section six of appellant's charter must be construed as in pari materia with the provisions of R....
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