National Cemetery Ass'n of Missouri v. Benson

• Decision Date: 14 June 1939
• Docket Number: 35564
• Parties: National Cemetery Association of Missouri, a Corporation, Plaintiff, Valhalla Cemetery Association, a Corporation, Intervener, Appellant, v. Willis W. Benson, Collector of St. Louis County, and Martin L. Neaf, Assessor of the County of St. Louis, Defendants
• Court: Missouri Supreme Court

129 S.W.2d 842

344 Mo. 784

National Cemetery Association of Missouri, a Corporation, Plaintiff, Valhalla Cemetery Association, a Corporation, Intervener, Appellant, v. Willis W. Benson, Collector of St. Louis County, and Martin L. Neaf, Assessor of the County of St. Louis, Defendants

No. 35564

Supreme Court of Missouri

June 14, 1939

Rehearing Granted, Reported at 344 Mo. 784 at 794.

Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge; Opinion filed at September Term, 1938 April 1, 1939; motion for rehearing filed; motion overruled at May Term, 1939, June 14, 1939.

Affirmed.

Clarence T. Case, David W. Voyles and George L. Stemmler for appellants.

(1) Section 6, Article X of the Constitution, ordaining that "the property, real and personal, of the State, county and other municipalities, and cemeteries, shall be exempt from taxation," extends to cemeteries as such, exclusive of the personal property of cemetery companies. Mo. Const 1875, Art. X, Sec. 6; State ex rel. Mount Mora Cemetery Assn. v. Casey, 210 Mo. 248. (2) This court, in the case of State ex rel. Mount Mora Cemetery Association v. Casey, point (1), supra, has held that all of the land held by cemetery associations for cemetery purposes are exempt from taxation for general purposes, to exclusion of personal property (which character of property is not involved in the case at bar). Where exemptions are based upon the use made of the property they are not limited to property actually indispensable, but may include property obviously appropriate and convenient to carry out the purposes, unless the statute or provision otherwise expressly so provides. 4 Cooley on Taxation, sec. 683; State ex rel. v. Trustees of William Jewell College, 234, Mo. 318; Mayor v. Brenau College, 150 Ga. 156; Peterson v. Stolz, 269 S.W. 117; Metaire Cemetery Assn. v. Board of Assessors, 37 La. Ann. 35. (3) A "cemetery" has been defined to be: "A place or ground set apart for the burial of the dead, -- orig. a Roman Catacomb, later the consecrated yard of a church so used, now any burial ground; a grave yard; a necropolis." Webster, International Dictionary (Merriam 1919). A "Necropolis," by the same authority, as: "Lit., a city of the dead; a cemetery. Chiefly Hist. or used of large cemeteries." "A cemetery is a place set apart, either by municipal authority or private enterprise, for the interment of the dead. The term includes not only lots for depositing the bodies of the dead, but also avenues, walks and grounds for shrubbery and ornamental purposes." 10 Amer. Juris., sec. 2, p. 487; Peterson v. Stolz, 269 S.W. 117. (4) By reasonable implication the words "cemetery" and "burial place" include both public cemeteries and private burial places. Lay v. State, 12 Ind.App. 362, 39 N.E. 769. The term "burial place" means a place dedicated and set apart for the burial of the dead, and is not limited to the narrow import of tenanted graves, spots of ground actually occupied by buried corpses, but is to be interpreted according to the known habits and usages of the people to congregate their dead in places set apart for that sacred purpose. Metaire Cemetery Assn. v. Board of Assessors, 37 La. Ann. 35. The term "cemetery" is synonymous with graveyard, burial ground and place of burial. Peterson v. Stolz, 269 S.W. 117. (5) The public policy to protect and encourage cemeteries is not out of any consideration of the owner, but one which recognizes the common wish of mankind to protect the resting places of the dead, and the necessity for their encouragement, especially in the neighborhood of larger centers of population, for the safety of the living and the saving of the public from the burden to maintain them at public expense. State ex rel. v. Casey, 210 Mo. 247; State ex rel. v. Dist. Court of Ramsey, 114 Minn. 287, 131 N.W. 328; Cave Hill Cem. v. Gosnell, 161 S.W. 983; Evergreen Cem. v. Beecher, 53 Conn. 561, 5 A. 353. (6) In constitutional or statutory provisions exempting cemeteries from taxation, as a matter of public policy, it is not, in the absence of expression of intention to the contrary, a factor which will affect the exemption that the cemetery is being operated by a stock company for profit. Evergreen Cemetery v. Beecher, 53 Conn. 551, 5 A. 353; Metaire Cemetery v. Board, 37 La. Ann. 35; People ex rel. v. Stillwell, 190 N.Y. 284, 83 N.E. 56; United Cemeteries v. Strother, 332 Mo. 977; Normandy School District v. Harrel, 315 Mo. 616. (7) Under constitutional or statutory provision for exemption of cemetery land from taxation, the exemption is not lost by reason of not containing graves, or not being platted into burial lots. Mount v. Yount, 220 Mo.App. 193; State ex rel. v. Dist. Court of Ramsey, 114 Minn. 287, 131 N.E. 329; State v. Lakewood Cem., 101 N.W. 162; Cave Hill v. Gosnell, 161 S.W. 982; City of Wichita v. Schwertner, 130 Kan. 401; St. Stanislau Church v. Erie County, 275 N.Y.S. 86. (8) It has repeatedly been decided that if an assessment on real estate fails to describe it correctly, by its own terms, so as to enable one reasonably skilled in such matters to locate the land, the assessment will be void. State ex rel. v. Lamb, 25 S.W.2d 84; State ex rel. v. Linney, 192 Mo. 52; Ellsberry Dr. Dist. v. Seeley, 329 Mo. 1243; State ex rel. v. Pulliam, 229 Mo. 234; State ex rel. v. Ry. Co., 114 Mo. 10; Dennie v. Robertson, 123 Va. 456, 96 S.E. 808; Black on Tax Titles, secs. 38, 245; 1 Blackwell on Tax Titles (5 Ed.), sec. 223; 2 Blackwell on Tax Titles (5 Ed.), sec. 876.

Arthur V. Lashly, Arthur U. Simmons and John E. Mooney for respondents.

(1) Trial court did not err in refusing appellants the equitable relief sought, namely, that certain tax assessments made against land of appellant cemetery associations be adjudged null and void and ordered canceled and that respondent taxing authorities be permanently enjoined from offering to sell or from selling any of said land under said assessments or tax bills issued thereon. (a) Because Article X, Section 6, of the Missouri Constitution, providing, among other things not material here, that "the property, real and personal, of the State, counties and other municipal corporations, and cemeteries, shall be exempt from taxation. . . . Provided that such exemptions shall be only by general law," should not be interpreted as self-executing. Mo. Const., Art. X, Sec. 6; Fusz v. Spannhorst, 67 Mo. 256; State ex rel. Burns v. Gibson, 195 Mo. 251, 94 S.W. 515; State ex rel. Wayland v. Herring, 208 Mo. 708, 106 S.W. 984; Gaunt v. Brown, 244 Mo. 271, 149 S.W. 644; McGrew Coal Co. v. Mellon, 315 Mo. 798, 287 S.W. 454; State ex rel. v. Riedel, 329 Mo. 616, 46 S.W.2d 131; Elsas v. Montgomery Elevator Co., 330 Mo. 596, 50 S.W.2d 130; State ex rel. Crutcher v. Koeln, 332 Mo. 1229, 61 S.W.2d 755; Engstad v. Grand Forks County, 10 N.D. 54, 84 N.W. 577; Glen Oak Cemetery Co. v. Board of Appeals, Cook County, 358 Ill. 48, 192 N.E. 674; Reuter v. Board of Suprs. of San Mateo Co., 220 Cal. 314, 30 P.2d 417; San Francisco v. Industrial Acc., 183 Cal. 273, 191 P. 26; Scroggie v. Scarborough, 162 S.C. 218, 160 S.E. 596; C. G. W. Railroad Co. v. Farmers Shipping Assn., 59 F.2d 657; Fargo v. Powers, 220 F. 697. (b) Because, even assuming that the aforementioned Article X, Section 6, of the Missouri Constitution is self-executing (which is denied by reason of the authorities referred to under (a), supra), it does not exempt from taxation land owned by a cemetery association where (as here) it appears that the land involved was "unplatted" and that no interments had been made thereon at the time the tax assessments were made. Land owned by a cemetery association which is "unplatted" and upon which no burials have been made does not come within the meaning of the word "cemetery" as employed in Article X, Section 6, of the Missouri Constitution. State ex rel. Mount Mora Cemetery Assn. v. Casey, 210 Mo. 235, 109 S.W. 1; Mullins v. St. Mary's Cemetery Assn., 239 Mo. 681, 144 S.W. 110; State ex rel. Lutheran Cemetery Assn. v. Lange, 16 Mo.App. 468; Spear v. Locust Wood Cemetery, 72 N. J. 821, 66 A. 1068. (c) Because even assuming that the aforementioned Article X, Section 6, of the Missouri Constitution is subject to the interpretation that it is self-executing (which is denied by reason of the authorities referred to under (a), supra) it is not susceptible to the construction that it exempts from taxation property owned by a cemetery association, where (as here) the proof shows conclusively, and it is admitted, that the particular property against which the tax is assessed is owned and held by the Cemetery Association for pecuniary profit; not susceptible to this construction for the reason that the rule is well established to the effect that an alleged constitutional grant of exemption from taxation will be strictly construed against the exemption, that such immunity cannot be made out by inference or implication, but must be conferred in terms too clear and plain to admit of no reasonable doubt, and that this rule of construction is applicable where an exemption from taxation is claimed as to property owned by a cemetery association, and that it obtains with exceptional force where (as here) the corporations involved were organized for pecuniary profit. Mo. Const., Art. X, Sec. 6; State ex rel. Mount Mora Cemetery v. Casey, 210 Mo. 235, 109 S.W. 1; Mullins v. Mt. St. Mary's Cemetery, 239 Mo. 681, 144 S.W. 109; State ex rel. Van Raalte v. Board of Equalization, 256 Mo. 455, 165 S.W. 1047; State ex rel. St. Louis Young Men's Assn. v. Gehner, 320 Mo. 1172, 11 S.W.2d 30; St. Louis Young Men's Assn. v. Gehner, 329 Mo. 1007, 47 S.W.2d 776; State ex rel. Waller v. Trustees, 234 Mo. 299, 136 S.W. 397; State ex rel. Lutheran Cemetery Assn. v. Lange, 16 Mo.App....