Mullins v. Mt. St. Mary's Cemetery Ass'n

• Decision Date: 14 November 1911
• Citation: 144 S.W. 109,239 Mo. 681
• Parties: MULLINS v. MT. ST. MARY'S CEMETERY ASS'N et al.
• Court: Missouri Supreme Court

144 S.W. 109

239 Mo. 681

MULLINS v. MT. ST. MARY'S CEMETERY ASS'N et al.

Supreme Court of Missouri, Division No. 2.

November 14, 1911.

Rehearing Denied February 6, 1912.

1. MUNICIPAL CORPORATIONS (§ 434)—PUBLIC IMPROVEMENTS—ASSESSMENTS—EXEMPTION.

Under Kansas City Charter, § 10, providing that the cost of a district sewer shall be assessed against the lots in the district in the proportion that their respective areas bear to the area of the whole district, cemetery land situated in a sewer district is liable for its proportion of the cost of the sewer, notwithstanding the provisions of Rev. St. 1909, § 2181, that burial grounds shall be exempt from execution, since this does not refer to a special execution on an assessment for a local improvement.

2. MUNICIPAL CORPORATIONS (§ 434)—PUBLIC IMPROVEMENTS—ASSESSMENTS—EXEMPTION.

The provision of Const. art. 10, § 6, that cemeteries shall be exempt from taxation, applies only to general taxes, and not to special taxes assessed for local improvements.

3. TAXATION (§ 204)—EXEMPTION—STATUTES —STRICT CONSTRUCTION.

Statutes creating exemption from taxes are strictly construed, and the right to exemption, except in the case of strictly public property, exists only when expressed in explicit terms.

Appeal from Circuit Court, Jackson County.

Action by W. C. Mullins against the Mt. St. Mary's Cemetery Association and others. From a judgment sustaining a demurrer to plaintiff's petition, he appeals. Reversed and remanded.

Fyke & Snider, for appellant. McCune, Harding, Brown & Murphy and Wm. Moore, for respondents.

KENNISH, P. J.

This action was brought in the circuit court of Jackson county upon two special tax bills in the total sum of $17,598.28, issued to the appellant by the city of Kansas City in payment for the construction of a sewer. Respondent is an incorporated public cemetery association, and owns about 35 acres of land in said city, dedicated, used, and to be used for cemetery and burial purposes. About 10 acres of this land, particularly described in the petition, has not been sold by the respondent, and no interments have been made therein. In accordance with the provisions of the charter and ordinances of said city, a sewer district was established, embracing the lands benefited by the construction of the sewer, and made liable to assessment for the payment of the cost of the construction thereof. Respondent's cemetery property is situated within the limits of said sewer district. The tax bills in suit were issued against respondent's property as in the case of other real property within the benefited area. Respondent filed a general demurrer to plaintiff's petition, which was sustained by the court, and, plaintiff declining to plead further, judgment was rendered against him, from which he appealed to this court.

It is contended by respondent that land used for a public cemetery and for burial purposes is not subject to special taxes assessed to pay for local improvements, such as the sewer, for which the tax bills in suit were issued. That contention was upheld by the trial court, and the correctness of that ruling is the decisive question on this appeal. The sewer referred to in the petition was constructed by appellant under the provisions of the city charter, and an ordinance enacted for that purpose. The sections of the charter providing for the payment of the cost of sewers are the following:

"Sec. 10.—As soon as the work of constructing * * * any district sewer shall have been completed under a contract let for the purpose, the board of public works shall compute the whole cost thereof, and apportion and charge the same as a special tax against the lots of land in the district, exclusive of the improvements, and in the proportion that their respective areas bear to the area of the whole district, exclusive of the streets, avenues, alleys and public highways, and shall, except as hereinafter provided, make out and certify in favor of the contractor or contractors to be paid, a special tax bill for the amount of the special tax against each lot in the district."

"Sec. 14.—When the city shall own in fee simple absolute any lot or parcel of land, or hold any land not used as a street, avenue, alley or public highway, it shall out of the general fund pay its proper share of the cost of any such work to be paid for in special tax bills as though a private owner of such land, but there shall be no tax bill against any land so owned or held by the city. The board of public works shall ascertain the share for which the city shall be justly liable and the amount so ascertained shall be certified to by the board of public works."

It is provided by section 6, art. 10, of the Constitution of this state, that "the property, real and personal, of the state, counties and other municipal corporations, and cemeteries, shall be exempt from taxation * * *." The law is too well established to require the citation of authorities that the exemption from taxation in the foregoing section of the Constitution has reference to general taxes levied and collected for the support and maintenance of the state, and not to special taxes assessed to pay the cost of local improvements. The correctness of this proposition is not contested by respondent. It rests its claim that its property is exempt from liability for the taxes sued for upon a statute hereinafter discussed.

The charter provisions above set forth leave little doubt that the framers of that instrument intended that the whole cost of the improvement should be charged against all the land in the district benefited, exclusive of public thoroughfares, and in the proportion that the respective areas bear to the area of the whole district. That no property within the district was intended to be exempted from liability is made clear by said section 14 of the charter, which provides that, when the city owns property in the benefited district, it shall pay out of the general fund "its proportionate share of the cost of any such work * * * as though a private owner of said land." And as no lot of land in the district is liable for more than its proportionate part of the total cost, according to its area, it is apparent that, if any part of the land included be exempt, then the payment of the corresponding part of the cost of the improvement is entirely unprovided for in the charter. These considerations and the provisions of the charter, by authority of which this improvement was made, plainly indicate that it was not intended or contemplated that respondent's cemetery property should be exempt from the payment of its proportionate part of the cost of the sewer. It follows that the special tax bills in suit must be held to be a valid charge against respondent's land, unless the charter provisions under which they were issued are in conflict with the Constitution or a dominant statutory provision. The only provision of the Constitution upon the subject has already been referred to, and, as it has been construed by the courts not to refer to local assessments, it need not be further considered.

It is settled law that statutes creating exemptions from taxes, whether general or special, are strictly construed, and the right of exemption exists only when expressed in explicit terms and must be established beyond a reasonable doubt. State ex rel. Mt. Mora Cemetery Association v. Casey, 210 Mo. 235, 109 S. W. 1; State ex rel. v. Johnston, 214 Mo. 256, 113 S. W. 1083, 21 L. R. A. (N. S.) 171; 1 Cooley on Taxation (3d Ed.) 362. An exception is made by the courts to the foregoing rule in the case of strictly public property, but this exception does not extend to such property as cemeteries or burial grounds.

The principle of law applicable in the case of strictly public property is that while it is within the power of the Legislature, in the absence of a constitutional restriction, to make such property liable for the payment of local improvements, an enactment providing for such improvements will not...