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

Reported at 344 Mo. 784 at 794.

Original Opinion of June 14, 1939, Reported at 344 Mo. 784. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

OPINION

Douglas, J.

On Motion for Rehearing.

Appellants and amici curiae have filed briefs urging this Court on the one hand to find cemeteries exempt when conducted wholly or in part by private enterprise and on the other when conducted by benevolent and religious corporations. In this opinion we have held that cemeteries as such are exempt. This is so regardless of the character of ownership. In United Cemeteries Co. v. Strother, supra, it was expressly stated that the statute (Sec. 14052, R. S. 1929, 1 Mo. Stat. Ann., p. 814) implies that cemeteries may be managed and conducted for profit. This is in nowise inimical to the constitutional exemption. The opinion in that case which gave a preference to the holder of the note secured by a deed of trust on a cemetery, upon a foreclosure sale of the assets (but not the land) of the cemetery company, says a sale under a power of sale in a deed of trust is not permitted where the land is "platted and used" as a cemetery.

It is also argued that we have overlooked the decision in Tracy v. Bittle, 213 Mo. 302, 112 S.W. 45, which restrained the defendant from desecrating a public graveyard. The facts in that case show in 1860 the owner of a tract of land staked off a half-acre of land for a neighborhood graveyard for use by the public as well as by his own family. In that case we ruled that a common law dedication of lands for such use was recognized in this State and the half-acre was dedicated for a public and charitable use. We quoted Campbell v. The City of Kansas, 102 Mo. 326, 13 S.W 897, a case involving land dedicated to public use for a graveyard in 1847, where we ruled that land may be dedicated to pious and charitable purposes as well as for public ways, commons and other easements in the nature of ways. We must bear in mind that at that time the modern cemetery was unknown here. The dedicator was, in a degree, a donator. In the above case the words "donated for...