Locust Grove Cemetery Ass'n of Philo v. Rose

• Decision Date: 23 January 1959
• Docket Number: No. 35025,35025
• Citation: 16 Ill.2d 132,156 N.E.2d 577
• Parties: LOCUST GROVE CEMETERY ASSOCIATION OF PHILO, Illinois, Appellee, v. Ralph ROSE, County, Collector, Appellant.
• Court: Illinois Supreme Court

Page 577

156 N.E.2d 577

16 Ill.2d 132

LOCUST GROVE CEMETERY ASSOCIATION OF PHILO, Illinois, Appellee, v. Ralph ROSE, County, Collector, Appellant.

No. 35025.

Supreme Court of Illinois.

Jan. 23, 1959.

As Modified on Denial of Rehearing March 18, 1959.

Robert W. McDonald, State's Atty., Urbana, for appellant.

John H. Finfrock and Robert W. Finfrock, Urbana, for appellee.

BRISTOW, Justice.

The defendant, as county collector of Champaign County, appeals to this court from an injunction order issued by the circuit court of Champaign County restraining him from collecting or attempting to collect real-estate taxes extended against certain property of plaintiff cemetery association.

Revenue and the constitutionality of certain statutes being involved, this court property has jurisdiction on direct appeal.

The plaintiff is a cemetery association organized on November 24, 1936, under the Cemetery Act of 1903, as amended. Ill.Rev.Stat.1957, chap. 21, pars. 35-55. On February 26, 1937, the association duly adopted bylaws electing to receive and hold property in perpetual trust pursuant to the provisions of section 2 of 'An Act in regard to Cemeteries and to Authorize Perpetual Trusts for the Repair, Maintenance, Upkeep and Ornamentation of Cemeteries and Lots and Graves in Cemeteries and to provide for the management of such trusts,' approved July 8, 1927. Ill.Rev.Stat.1957, chap. 21, par. 64. On December 30, 1948, the association was duly licensed by the Auditor of Public Accounts of the State of Illinois to accept and hold in perpetuity care funds under the Illinois Cemetery Care Act. Ill.Rev.Stat.1957, chap. 21, pars. 64.1-64.24.

Under the last will of Lymen E. Hazen, admitted to probate in the county court of Champaign County on April 18, 1952, the cemetery association acquired title to approximately 80 acres of farm land in Champaign County, by paragraph 9 thereof, which provided as follows:

'Ninth: I give and devise unto the Locust Grove Cemetery Association organized under the laws of the State of Illinois, the following described real estate, to-wit: (property in question and other real estate) to be added to and become a part of the endowment fund or property of said Cemetery Association, the income only to be used for the benefit and maintenance of the cemetery of said Cemetery Association, in such manner as the trustees shall in their discretion deem best suited to carry out the purpose for which the Association was organized.'

No part of said property is used as a cemetery or for burial purposes, but it is rented and the income is used as other income in the association trust or care funds.

For the revenue year 1956 a tax in the amount of $360.54 was extended against this property. When the defendant threatened to take steps to effect collection thereof, the plaintiff association filed its complaint for injunction. On a stipulation of the facts, the injunction order was entered from which this appeal is taken.

Defendant's position is that the land in question is not exempt from taxation because it is not used for burial purposes and, also, that if the statutes in question exempt the land in question they are unconstitutional.

Plaintiff contends that the property in question is validly exempted from taxation by three separate statutes: section 14 of the Cemetery Act of 1903, section 2 of the act of 1927 relating to perpetual trusts, and section 6 of the Cemetery Care Act; that the said property is used exclusively for cemetery purposes; and that plaintiff association is exempt from taxation as a municipal corporation.

Section 1 of article IX of the Illinois constitution of 1870, S.H.A., provides: 'The general assembly shall provide such revenue as may be needful by levying a tax, by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property * * *.' Section 3 of the same article of the constitution authorizes tax exemptions as follows: 'The property of the state, counties, and other municipal corporations, both real and personal, and such other property as may be used exclusively for agricultural and horticultural societies, for school, religious, cemetery and charitable purposes, may be exempted from taxation; but such exemption shall be only by general law.'

Section 14 of the Cemetery Act of 1903 (Ill.Rev.Stat.1957, chap. 21, par. 49) under which plaintiff association is organized provides: 'The property, both real and personal, of any association organized under this act, shall be forever exempt from taxation for any and all purposes.'

Section 2 of an act concerning perpetual trusts of cemeteries, approved July 8, 1927 (Ill.Rev.Stat.1957, chap. 21, par. 64), under which plaintiff association has adopted the necessary bylaws and under which it has accepted property in perpetual trust, provided, among other things, as follows: 'The trust funds, gifts, devises and bequests mentioned in this section and the income arising therefrom shall be exempt from taxation and from the operation of all laws of mortmain, and the laws against perpetuities and accumulations.'

Section 6 of the Illinois Cemetery Care Act, approved July 21, 1947 (Ill.Rev.Stat.1957, chap. 21, par. 64.6), under which plaintiff association is licensed by the State and is administering its care funds, provides: 'The trust funds authorized by the provisions of Section 3 of this Act, and the income therefrom, and any funds received under a contract to furnish care of a burial space for a definite number of years, shall be exempt from taxation and the trust funds authorized by the provisions of Section 3 of this Act, and the income therefrom, shall be exempt from the operation of all laws of mortmain and the laws against perpetuities and accumulations.'

None of these statutes are ambiguous, requiring an interpretation or construction thereof as to the legislative intention or meaning. A reading thereof discloses a clear legislative intent to exempt from all taxation all cemetery property, including income producing trust, endowment and care funds. The sole question presented for decision is whether or not the Illinois constitution of 1870 permits the legislature to exempt from taxation property owned by or held in trust for a cemetery, the income from which can be used only for the benefit and maintenance of the cemetery.

It has long been held that section 3 of article IX of the Illinois constitution of 1870 is not self-executing and requires a statute to provide the exemption. However, the statute cannot be made broader than the provisions of the constitution and no property except that mentioned in the section can be exempted by any law passed by the legislature. Oak Ridge Cemetery Corp. v. Tax Comm., 299 Ill. 430, 132 N.E. 553; Consolidated Coal Co. of St. Louis v. Miller, 236 Ill. 149, 86 N.E. 205.

No cases have been cited or called to our attention, nor have we found any, which pass directly on these statutes. The defendant has referred to numerous cases involving claimed tax exemption of property, but none have involved these statutes. Many of such cases involved construction of the exemption statute appearing in section 19 of the Revenue Act of 1939 (Ill.Rev.Stat.1957, chap. 120, par. 500), and in each such case in which the court held the property subject to tax it was on the basis that the property did not fall within the terms of the statute granting exemption. No question of constitutional construction was involved. People ex rel. Paschen v. Hendrickson-Pontiac, Inc., 9 Ill.2d 250, 137 N.E.2d 381; International College of Surgeons v. Brenza, 8 Ill.2d 141, 133 N.E.2d 269, 61 A.L.R.2d 1027; Rogers Park Post No. 108, etc. v. Brenza, 8 Ill.2d 286, 134 N.E.2d 292; City of Lawrenceville v. Maxwell, 6 Ill.2d 42, 126 N.E.2d 671; People ex rel. Lloyd v. University of Illinois, 357 Ill. 369, 192 N.E. 243; People ex rel. Pearsall v. Methodist Episcopal Church, 315 Ill. 233, 146 N.E. 165. Section 19 of the Revenue Act of 1939 exempts from taxation 'all lands used exclusively as graveyards or grounds for burying the dead.' This limitation is not involved in the present case and exemption of the property in question is not sought under its provisions.

Two of the cases cited by defendant involved cemeteries created by special charter in each of which the court held the property did not fall within the exemption granted, and no constitutional issues were passed upon. Bloomington Cemetery Association v. People ex rel. Baldridge, 170 Ill. 377, 48 N.E. 905; Rosehill Cemetery Co. v. Kern, 147 Ill. 483, 35 N.E. 240. In Glen Oak Cemetery Company v. Board of Appeals, 358 Ill. 48, 192 N.E. 673, a cemetery corporation organized for profit unsuccessfully sought exemption under the Revenue Act, and no constitutional issue was raised. Concordia Cemetery Association v. Minnesota & Northwestern R. Co., 121 Ill. 199, 12 N.E. 536, was an eminent domain proceeding and did not involve any tax issues.

The question here presented is solely one of constitutional power of the legislature. The Illinois legislature does not look to the State constitution for power to act, but looks to it and the Federal constitution only for restrictions upon its powers to act. Fenske Bros., Inc. v. Upholsterers' International Union, 358 Ill. 239, 193 N.E. 112, 97 A.L.R. 1318; Nielsen v. City of Chicago, 330 Ill. 301, 161 N.E. 768; Taylorville Sanitary Dist. v. Winslow, 317 Ill. 25, 147 N.E. 401. Every subject within the scope of civil government which is not within some constitutional inhibition may be acted upon by the General Assembly. Sutter v. People's Gas Light & Coke Co., 284 Ill. 634, 120 N.E. 562. Thus the question is narrowed to an inquiry whether or not the statute contravenes any constitutional provision. The party challenging the constitutionality of an act has the burden of clearly showing wherein it...