Hillcrest Memorial Gardens, Inc., In re, No. 12073

CourtSupreme Court of West Virginia
Writing for the CourtCALHOUN
Citation146 W.Va. 337,119 S.E.2d 753
Decision Date16 May 1961
Docket NumberNo. 12073
PartiesIn re HILLCREST MEMORIAL GARDENS, INC.

Page 753

119 S.E.2d 753
146 W.Va. 337
In re HILLCREST MEMORIAL GARDENS, INC.
No. 12073.
Supreme Court of Appeals of West Virginia.
Submitted April 18, 1961.
Decided May 16, 1961.

Syllabus by the Court

1. 'Under the Constitution of this state all property both real and personal shall be taxed except such property as the Legislature may exempt under the exceptions contained therein.' Point 1 Syllabus, Reynolds Memorial Hospital et al. v. County Court of Marshall County, 78 W.Va. 685 [90 S.E. 238].

Page 754

2. Constitutional and statutory provisions exempting property from taxation are strictly construed. It is encumbent upon a person who claims his property is exempt from taxation to show that such property clearly falls within the terms of the exemption; and if any doubt arises as to the exemption, that doubt must be resolved against the one claiming it.

[146 W.Va. 338] 3. A cemetery is a place where dead bodies of human beings are buried; an area of ground set apart for the burial of the dead, either by public authority or private enterprise. It includes not only lots for depositing the bodies of the dead, but also such avenues, walks and grounds as may be necessary for its use, or for shrubbery and ornamental purposes.

4. While a cemetery owned and operated by a private corporation is exempt from taxation under Code, 1931, 11-3-9, as amended, such exemption from taxation does not extend to and embrace office furniture and equipment used for corporate purposes; money of the corporation on hand or on deposit in a bank; or notes and accounts receivable representing the proceeds of the sale of burial lots in such cemetery.

5. 'A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.' Point 2 Syllabus, State v. Epperly, 135 W.Va. 877 [65 S.E.2d 488].

D. Grove Moler, Mullens, for appellant.

C. Donald Robertson, Atty. Gen., Edward B. Simms, Sp. Asst. Atty. Gen., Robert Bailey, Pros. Atty., Wyoming County, Pineville, for appellee.

CALHOUN, Judge.

The petitioner, Hillcrest Memorial Gardens, Inc., a corporation organized and existing under the laws of the State of West Virginia, has appealed to this Court from a final judgment of the Circuit Court of Wyoming County entered on August 20, 1960, affirming a prior order entered by the county court of that county on March 1, 1960, denying the prayer of the [146 W.Va. 339] petitioner that certain of its personal property be adjudged to be exempt from taxation by reason of the provisions of Code, 1931, 11-3-9, as amended. Apparently the proceeding is prosecuted pursuant to Code, 11-3-25, as amended.

On October 9, 1957, a certificate of incorporation was issued to the petitioner by the Secretary of State of West Virginia. The objects of the incorporation were, among others, to purchase and operate, 'for burial purposes only', one or more cemeteries in Wyoming County, including maintenance of lots, vaults and chapels; to buy and to sell tombstones; to sell lots for grave plots for cash or on an installment plan; and to do all things necessary and incident to the maintenance and operation of a cemetery. Pursuant to its incorporation the petitioner maintains an office at Oceana, Wyoming County, including office furniture and equipment, for the keeping of its records and for the purpose of conducting corporate business. The petitioner also owns, maintains and operates at Matheny in the same county 'a cemetery plot of ground' known as Hillcrest Memorial Gardens. It has sold lots for burial purposes in such cemetery to various individuals, some sales having been for cash and others on an installment plan.

In relation to the property alleged to have been improperly assessed for tax purposes, the petition filed herein states:

'That the Assessor of Wyoming County, West Virginia, secured a signed 'Return of All Personal Property and Real Estate Owned' from the petitioner for the calendar year 1958, upon the face of which it appears that (a) the amount of money on hand or deposit, January 1, 1958, was $400.00,

Page 755

(b) the total of notes and accounts receivable (representing the sale of cemetery lots on an instalment plan) was $70,486.00, and (c) the value of office furniture, fixtures and equipment $500.00.

'That all of said described personal property was properly listed upon the records of the Assessor of Wyoming County, West Virginia.

[146 W.Va. 340] 'That your petitioner made no return for taxes of its money, notes and accounts receivable for the calendar year 1959, but that the Assessor of Wyoming County, West Virginia prepared and filed in his own office an unsigned 'Return of All Personal Property and Real Estate Owned' by Hillcrest Memorial Gardens, as of January 1, 1959, upon the face of which it appears that (a) the amount of notes and accounts receivable (representing the sale of cemetery lots on an instalment plan) was $180,000.00 (the Assessor's estimate) and (b) the value of office furniture, fixtures and equipment was $1,500.00 (the Assessor's estimate.)

'That said Assessor over the informal protest of your petitioner, who claimed said property as exempt from assessment and taxation by virtue of the provisions of Section 9, Article 3, Chapter 11, Code of West Virginia, 1955, as amended, illegally assessed taxes upon said property for 1958 as follows, to-wit: upon $70,485.00 listed as Class No. 1, personal property, $231.21, and upon $500.00 listed as Class 3-4, personal property $6.56, for each half year and for 1959 as follows, to-wit, upon $180,000.00 listed as Class No. 1, personal property, $838.71, and upon $1,500.00, listed as Class 3-4, personal property $27.96, for each half year.'

Separate petitions were filed in the county court for the years 1958 and 1959, respectively. On the joint motion of counsel for the petitioner and the prosecuting attorney in the circuit court, the two proceedings were 'combined and consolidated for further proceedings, the same as if one proceeding only.'

Section 1 of Article X of the Constitution of West Virginia provides that certain property as therein specified 'may by law be exempted from taxation.' A portion thereof, with emphasis supplied, is as follows: 'Subject to the exceptions in this section contained, taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law. * * * but property used for educational, literary, scientific, religious or charitable purposes, all cemeteries, public property * * * may [146 W.Va. 341] by law be exempted from taxation.' For discussions of the historical background of this constitutional provision, see a scholarly article by Albert A. Abel, 55 W.Va. Law Rev., 170, and State v. Kittle, 87 W.Va. 526, 531, 105 S.E. 775, 776.

In State v. Kittle, 87 W.Va. 526, 533, 105 S.E. 775, 777, the Court stated: 'The Constitution, however, does not of itself exempt any property from taxation. It merely authorizes legislative exemption thereof.' Pursuant to the constitutional authorization, the legislature, by Code, 1931, 11-3-9, as amended, has provided for certain exemptions as follows: 'All property, real and personal, described in this section, and to the extent herein limited, shall be exempt from taxation, that is to say: Property belonging to the United States, other than property permitted by the United States to be taxed under state law; property belonging exclusively to the State; property belonging exclusively to any county, district, city, village, or town in this State, and used for public purposes; property located in this State belonging to any city, town, village, county or any other political subdivision of another state, and used for public purposes;...

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26 practice notes
  • Cotiga Development Co. v. United Fuel Gas Co., No. 12141
    • United States
    • Supreme Court of West Virginia
    • February 18, 1963
    ...have been applied in the consideration of statutory and constitutional provisions. In re Hillcrest Memorial Gardens, Inc., W.Va., 119 S.E.2d 753, 759; State ex rel. Lambert v. Carman, 145 W.Va. 635, pt. 4 syl., 116 S.E.2d 265; State v. Jackson, 145 W.Va. 51, pt. 3 syl., 112 S.E.2d 452; Stat......
  • State ex rel. Fox v. Board of Trustees of Policemen's Pension or Relief Fund of City of Bluefield, No. 12308
    • United States
    • Supreme Court of West Virginia
    • March 17, 1964
    ...129 S.E.2d 529; Cotiga Development Company v. United Fuel Gas Company, W.Va., 128 S.E.2d 626; In re Hillcrest Memorial Gardens, Inc., 146 W.Va. 337, 119 S.E.2d 753; State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353; Medical Care, Inc. v. Ch......
  • Lester v. Rose, No. 12177
    • United States
    • Supreme Court of West Virginia
    • March 11, 1963
    ...provisions. Cotiga Development Co. v. United Fuel Gas Co., W.Va., 128 S.E.2d 626; In re Hillcrest Memorial, Gardens, Inc., W.Va., 119 S.E.2d 753, [147 W.Va. 606] While I feel that the statutory language in question is clear and unambiguous and that therefore we are not permitted to construe......
  • United Hosp. Ctr., Inc. v. Romano, No. 13–0120.
    • United States
    • Supreme Court of West Virginia
    • May 29, 2014
    ...or charitable purposes ... may by law be exempted from taxation.” W.Va. Const. art. X, § 1; see In re Hillcrest Mem'l Gardens, Inc., 146 W.Va. 337, 341, 119 S.E.2d 753, 755 (1961) (“ ‘Constitution ... does not of itself exempt any property from taxation[;] it merely authorizes legislative e......
  • Request a trial to view additional results
26 cases
  • Cotiga Development Co. v. United Fuel Gas Co., No. 12141
    • United States
    • Supreme Court of West Virginia
    • February 18, 1963
    ...have been applied in the consideration of statutory and constitutional provisions. In re Hillcrest Memorial Gardens, Inc., W.Va., 119 S.E.2d 753, 759; State ex rel. Lambert v. Carman, 145 W.Va. 635, pt. 4 syl., 116 S.E.2d 265; State v. Jackson, 145 W.Va. 51, pt. 3 syl., 112 S.E.2d 452; Stat......
  • State ex rel. Fox v. Board of Trustees of Policemen's Pension or Relief Fund of City of Bluefield, No. 12308
    • United States
    • Supreme Court of West Virginia
    • March 17, 1964
    ...129 S.E.2d 529; Cotiga Development Company v. United Fuel Gas Company, W.Va., 128 S.E.2d 626; In re Hillcrest Memorial Gardens, Inc., 146 W.Va. 337, 119 S.E.2d 753; State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353; Medical Care, Inc. v. Ch......
  • Lester v. Rose, No. 12177
    • United States
    • Supreme Court of West Virginia
    • March 11, 1963
    ...provisions. Cotiga Development Co. v. United Fuel Gas Co., W.Va., 128 S.E.2d 626; In re Hillcrest Memorial, Gardens, Inc., W.Va., 119 S.E.2d 753, [147 W.Va. 606] While I feel that the statutory language in question is clear and unambiguous and that therefore we are not permitted to construe......
  • United Hosp. Ctr., Inc. v. Romano, No. 13–0120.
    • United States
    • Supreme Court of West Virginia
    • May 29, 2014
    ...or charitable purposes ... may by law be exempted from taxation.” W.Va. Const. art. X, § 1; see In re Hillcrest Mem'l Gardens, Inc., 146 W.Va. 337, 341, 119 S.E.2d 753, 755 (1961) (“ ‘Constitution ... does not of itself exempt any property from taxation[;] it merely authorizes legislative e......
  • Request a trial to view additional results

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