People ex rel. Oak Hill Cemetery Ass'n v. Pratt

• Decision Date: 01 December 1891
• Citation: People ex rel. Oak Hill Cemetery Ass'n v. Pratt, 129 N.Y. 68, 29 N.E. 7 (N.Y. 1891)
• Court: New York Court of Appeals Court of Appeals
• Parties: THE PEOPLE ex rel. OAK HILL CEMETERY ASSOCIATION, Respondent and Appellant, v. LUTHER A. PRATT et al., as Assessors, etc., Appellants and Respondents.

129 N.Y. 68

29 N.E. 7

PEOPLE ex rel. OAK HILL CEMETERY ASS'N

v.PRATT et al., Assessors.¹

Court of Appeals of New York.

Dec. 1, 1891.

Appeal from supreme court, general term, fifth department.Reversed.

Application by the people on the relation of the Oak Hill Cemetery Association for a writ of certiorari to review an assessment of its property, made by Luther A. Pratt and others.The relator claimed that its property was exempt from taxation.The special term decided that the property was not exempt, but reduced the assessment, and the general term affirmed the judgment.Relator appeals.

Martin W. Cooke, for appellant.

C. D. Kichel and Geo. F. Danforth, for respondents.

EARL, J.

The relator, the Oak Hill Cemetery Association, complains that its land, situated in the city of Rochester, was illegally assessed in the year 1890, and it has instituted this proceeding to procure the assessment to be stricken from the assessment roll as illegal and unauthorized.It was incorporated under the act, chapter 133 of the Laws of 1847, on the 16th day of March, 1889.At that time there was an ordinance of the city of Rochester, passed in 1887, prohibiting the burial of dead human bodies within the city limits, except in certain cemeteries specified.On the 19th day of March, 1889, that ordinance was amended so as to authorize the burial of the dead in the relator's cemetery, and thereafter, and while that ordinance was in force, it took a conveyance of 54 1/2 acres of land situated within the city limits.On the 2d day of May, 1889, the ordinance was again amended, so as to prohibit the burial of the dead in any cemetery within the city limits, except in certain cemeteries named, among which was not the relator's, and thus, thereafter, assuming the validity of the ordinance, no burials could be made in the cemetery.

We must assume that no body has been buried in this cemetery, and the important question for us to determine is whether the relator's land, under the act of 1847, is exempt from taxation, although, so long as the ordinance remains in force as at present framed, no burials can be made therein.We have no doubt that the relator was properly incorporated.It was not obliged to obtain the consent of the city of Rochester to its incorporation; nor, as has been contended on the part of the defendants, was it obliged to obtain the consent of the supervisors of the county of Munroe.The acts, chapter 280 of the Laws of 1852,chapter 238 of the Laws of 1854,chapter 164 of the Laws of 1871, andchapter 389 of the Laws of 1889, to which our attention has been called, do not relate to cemeteries in the county of Munroe, and relate only to the counties mentioned in those acts.We have no doubt that the common council had power to pass the ordinance prohibiting the burial of the dead in this cemetery.Under the charter of the city (Laws 1880, c. 14, § 40) it is provided that the common council shall have power to ‘make, modify, and repeal such ordinances, by-laws, and regulations as it shall deem reasonable within the said city for the following purposes,’ and among the purposes specified is, ‘to regulate the burial of the dead.’Under the power to regulate, the common council could prohibit the burial of the dead within the city limits.Cronin v. People, 82 N. Y. 318.This ordinance is a police regulation, which the legislature could authorize the common council to pass.Brick Presbyterian Church v. Mayor, etc., 5 Cow. 538;Coates v. Mayor, etc., 7 Cow. 585;In re Ryers, 72 N. Y. 1.

It is immaterial that at the time the relator took the conveyance of its land it was lawful to use it for cemetery purposes, and to bury the dead therein.The power possessed by the common council to regulate the burial of the dead is a continuing power, and it may be exercised in its discretion, from time to time, as the public health and welfare may require.So we have no doubt that, so long as the ordinance remains in force, no dead body can be buried in this cemetery, and yet we reach the conclusion that its land cannot be taxed under the law of 1847.Section 1 of that act provides that any number of persons residing in this state, not less than seven, who shall desire to form an association for the purpose ‘of procuring and holding lands to be used exclusively for a cemetery or place for the burial of the dead,’ may form a corporation as provided in that and the two following sections.Section 4 provides that any association incorporated under the act may take by purchase or devise, and hold, within the county in which the certificate of its incorporation is recorded, not exceeding 200 acres of land, to be held and occupied exclusively as a cemetery for the burial of the dead; and further provides that ‘such land or such parts thereof as may from time to time be required for that purpose, shall be surveyed and subdivided into lots or plots of such size as the trustees may direct, with such avenues, paths, alleys, and walks as the trustees deem proper; and a map or maps of such surveys shall be filed in the clerk's office of the county in which the land shall be situated.’These surveys and subdivisions and maps thus authorized may be made from time to time, and all this is to be done before cemetery lots can be sold, and the lots are to be sold according to these surveys and maps.The section also provides that any association incorporated under the act may hold personal property, not to exceed $5,000, besides what may arise from the sale of lots.Section 7, as amended by the act, chapter 108 of the Laws of 1879, provides that ‘all lots or plots of ground designated on the maps filed as aforesaid, and numbered as separate lots by the corporation, shall be indivisible, but may be held and owned in undivided shares.* * * One-half at least of the proceeds of all sales of lots or plots shall be first appropriated to the payment of the purchase money of the...