Parker v. Proprietors of Cemetery of Mt. Auburn

• Decision Date: 31 March 1914
• Citation: 104 N.E. 750,217 Mass. 286
• Parties: PARKER, Tax Collector v. PROPRIETORS OF CEMETERY OF MT. AUBURN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 286

104 N.E. 750

PARKER, Tax Collector v. PROPRIETORS OF CEMETERY OF MT. AUBURN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 31, 1914

COUNSEL

Jos P. Lyons, Asst. Corp. Counsel, of Boston, for plaintiff.

Alfred Hemenway and Henry Wheeler, both of Boston, for defendants.

OPINION

RUGG C.J.

This is an action to recover taxes assessed by the city of Boston upon personal property of the defendant. The tax was laid upon the defendant as an 'inhabitant' of Boston. St 1909, c. 490, pt. 1, § 23. The defendant was incorporated by St. 1835, c. 96, whereby it was authorized to take and hold 'the garden and cemetery at Mt. Auburn now held by the Massachusetts Horticultural Society, and any other lands adjacent thereto * * * upon the same trusts, and for the same purposes and with the same powers and privileges as the said Massachusetts Horticultural Society now hold the same.' By section 1 of this act it is recited that the cemetery at Mt. Auburn is located in the towns of Cambridge and Watertown, in the county of Middlesex. The area which it might acquire for its purposes was increased by St. 1850, c 271, and by St. 1869, c. 179. The real estate of the corporation is exclusively situated in Cambridge and Watertown, and up to the 1st of January, 1913, there have been 38,905 interments. The character of the defendant corporation and the scope of its powers have been referred to in several cases. In Mt. Hope Cemetery v. Boston, 158 Mass. 509, at page 516, 33 N.E. 695, at page 697 (35 Am. St. Rep. 515), it was said by Mr. Justice Allen:

'The first private incorporated cemetery company, so far as ascertained, was the Massachusetts Horticultural Society, which by St. 1831, c. 69, was authorized to appropriate a part of its land for a rural cemetery or burying ground, to lay out lots for family and other burying places, and to grant exclusive rights of burial. This was the origin of the cemetery at Mt. Auburn, * * * which succeeded to the property, powers, and privileges of the Horticultural Society in respect to the cemetery, with the restriction, however, that all the proceeds of sales of lots which said proprietors were allowed to retain should be forever devoted and applied to the preservation, improvement, embellishment, and enlargement of the cemetery and garden, and the accidental expenses thereof, and for no other purpose whatsoever. This would effectually cut off all right to declare dividends.'

In Mt. Auburn Cemetery v. Cambridge, 150 Mass. 12, at page 16, 22 N.E. 66, at page 68 (4 L. R. A. 836), it was said respecting the cemetery: 'The land in question is perpetually devoted by law to the burial of the dead, and it cannot be sold or appropriated to any other use until the law shall be changed;' and further that 'the Legislature had appropriated certain land for a burying ground and forbidden that it should ever be sold or used for any other purpose, and had forbidden that moneys received from it should be devoted to any purpose except its preservation and improvement as a burying ground.' It is apparent from these decisions that the defendant is not a business corporation. It has and can have no capital stock, and can neither declare dividends nor sell its cemetery property. It has been from the first a corporation established, and developed under special legislation, and has been regarded, as appears from the quotations from opinions, as a corporation sui generis.

The domicile of a corporation depends upon various considerations. A business corporation commonly is said to have its residence where its chief corporate activities are conducted. Questions of nicety may arise where executive and financial operations are carried on in one place and the mechanical or manufacturing in another. But the defendant is not a business corporation in any commercial sense. Its land is perpetually devoted by its charter to the burial of the dead. Thousands of people, in reliance upon this legislative declaration and pledge, have performed the sacred rites of interment for kindred and friends in this plot of ground. The defendant is prohibited by law from making any profit out of the sale of lots in its cemetery, but must forever expend its resources derived through this channel in the adornment and beautifying and improvement of its cemetery property in these two municipalities of Watertown and Cambridge. It never can dispose of the land described in its charter nor divide its assets in whole or in part among its corporators. Nor can it sell its land even for the purpose of removal to another location. It is distinguished in some respects at least from the ordinary cemetery corporation of which types may be found in Donnelly v. Boston Catholic Cemetery Ass'n, 146 Mass. 163, 15 N.E. 505, and Milford v. County Com'rs, 213 Mass. 162, 100 N.E. 60. Its single function is to furnish a burial place for the dead at this particular place known as Mt. Auburn. The performance of its corporate function is indissolubly linked with this definite spot. At least until there is a radical legislative change in the charter, rights and powers of the defendant, it is impossible for it to surrender the duties...