Proprietors of Cemetery of Mount Auburn v. Fuchs

• Decision Date: 27 February 1940
• Citation: 305 Mass. 288,25 N.E.2d 759
• Parties: PROPRIETORS OF THE CEMETERY OF MOUNT AUBURN v. UNEMPLOYMENT COMPENSATION COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 288

25 N.E.2d 759

PROPRIETORS OF THE CEMETERY OF MOUNT AUBURN v. UNEMPLOYMENT COMPENSATION COMMISSION.

Supreme Judicial Court of Massachusetts, Middlesex.

February 27, 1940

October 2, 1939.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & COX, JJ.

Unemployment Compensation. Cemetery. Corporation, Charitable. Mount Auburn Cemetery. A corporation whose dominant purpose and activity were the operation of the

Mount Auburn Cemetery was a private cemetery corporation and not exempted from the operation of the unemployment compensation law, G.L (Ter. Ed.)

c. 151A, as appearing in St.

1937, c. 421, on the ground that it was

"organized and operated exclusively for a religious, charitable . . . or educational purpose . . . or for any combination of such purposes" within

Section 1 (f), (7) although its land and income from the sale of lots must be devoted solely to the cemetery purposes and the purposes of an experimental garden maintained in conjunction with the cemetery for the advancement of horticulture, its proprietors were not entitled to derive profit from it, and there was public interest in the cemetery as a bird sanctuary and in the graves of famous persons buried therein.

TWO ACTIONS OF CONTRACT. Writs in the Superior Court dated November 21 1938.

The actions were heard by O'Connell, J. J. Noble, for the plaintiff.

E. O. Proctor, Assistant Attorney General, for the defendant.

DOLAN, J. These are two actions of contract to recover money paid by the plaintiff to the defendant under protest, as contributions to the unemployment compensation fund under G.L. (Ter. Ed.) c 151A, as it appears in St. 1935, c. 479, Section 5, and St. 1937, c. 421. A prior suit in equity brought by the plaintiff to enjoin the commission from collecting contributions from the plaintiff was dismissed by this court without prejudice to its right "to pursue its appropriate remedy under the statute." Proprietors of the

Cemetery of Mount Auburn v. Unemployment Compensation Commission, 301 Mass. 211, 214.

The present actions were brought after the plaintiff had made application for refunds under c. 151A, Section 8, and the application had been denied. The cases come before us upon the report without decision of a judge of the Superior Court, who heard them upon a statement of agreed facts.

The material facts are in substance as follows: Under St. 1829, c. 22, the Massachusetts Horticultural Society was incorporated for the purpose of "encouraging and improving the science and practice of horticulture" with the right to purchase real estate to the amount of $10,000 and personal estate to the amount of $20,000. By St. 1831, c. 69, the society was authorized to dedicate and appropriate any part of the real estate then owned or thereafter to be acquired by it, "as and for a rural cemetery or burying ground, and for the erection of tombs, cenotaphs, or other monuments for, or in memory of the dead . . . to lay out the same in suitable lots . . . to plant and embellish the same with shrubbery, flowers, trees, walks, and other rural ornaments . . . and to make and annex thereto other suitable appendages and conveniences, as the society shall, from time to time, deem expedient." It was further provided that "whenever the society shall so lay out and appropriate any of . . . [its] real estate for a cemetery, or burying ground, as aforesaid, the same shall be deemed a perpetual dedication thereof for the purposes aforesaid; and the real estate so dedicated shall be forever held by the . . . society in trust for such purposes, and for none other."

A tract of land bordering on the Charles River and known as "Sweet Auburn" was purchased by the society. Dedication exercises were held upon the grounds on August 31, 1831, at which Mr. Justice Story "of the Supreme Court" delivered an address, extracts from which are included in the agreed facts. It was the purpose of the incorporators who conceived the idea of a rural cemetery in 1825 to combine with it a public memorial garden. "The operation of the Experimental Garden in conjunction with the cemetery having proved difficult, arrangements were made within the Society for placing them under separate management." These arrangements culminated with the passage of c. 96 of the Acts of 1835, creating the plaintiff corporation under the name of the "Proprietors of the Cemetery of Mount Auburn." Under the terms of the statute the powers and privileges conferred upon the society by St. 1831, c. 69, were conferred upon the plaintiff. It was authorized to take and hold the garden and cemetery "and any other lands adjacent thereto, not exceeding fifty acres . . . upon the same trusts, and for the same purposes" as the society then held the same, and to take and hold any personal estate not exceeding in value $50,000. It was also provided that as soon as the plaintiff should have received a conveyance of the "garden and cemetery" the society should cease to have any rights, powers and authorities over the same. Authority was also granted to take and hold any grant, donation or bequest of property upon trust to apply the income thereof for the improvement or embellishment of the cemetery "or of the garden adjacent thereto, or of any buildings, structures or fences, erected or to be erected upon the lands of the . . . [plaintiff], or of any individual proprietor of a lot in the cemetery . . . or for the planting and cultivation of trees, shrubs, flowers or plants, in or around any cemetery lot, according to the terms of such grant, donation or bequest . . . ." It was also provided that sales of cemetery lots should be made at a price not less than the sum of $60 for every lot containing three hundred square feet, and so in proportion for any greater or less quantity, "unless the said horticultural society, and the . . . [plaintiff] shall mutually agree to sell the same at a less price." The proceeds of the first sales of lots, after deducting the annual expenses of the cemetery establishment, were provided to be applied to the extinguishment of the debts then due by the society on account of the "garden and cemetery," and after "the extinguishment of the said debts, the balance of the said proceeds, and the proceeds of all future sales," were provided to be divided "on the first Monday in every year," as follows: "fourteen hundred dollars shall be first deducted from the gross proceeds of the sales of lots, during the preceding year, for the purpose of defraying the superintendent's salary and other incidental expenses of the cemetery establishment, and the residue of the said gross proceeds shall be divided between the said horticultural society and the corporation created by this act, as follows, namely: one fourth part thereof shall be received by and paid over to the said horticultural society, on the first Monday of January, of every year, and the remaining three fourth parts shall be retained and held by the corporation created by this act, to their own use forever. And if the sales of any year shall be less than fourteen hundred dollars, then the deficiency shall be a charge on the sales of the succeeding year or years. Fourthly, the money so received by the said horticultural society shall be forever devoted and applied by the said society, to the purposes of an experimental garden, and to promote the art and science of horticulture, and for no other purpose. And the money so retained by the corporation created by this act, shall be forever devoted and applied to the preservation, improvement, embellishment and enlargement of the said cemetery . . . . Fifthly, a committee of the said horticultural society, duly appointed for this purpose, shall, on the first Monday of January, of every year, have a right to inspect and examine the books and accounts of the treasurer, or other officer acting as treasurer of the corporation created by this act, as far as may be necessary to ascertain the sales of lots of the preceding year." The final section of the act reads as follows: "Be it further enacted, That the said cemetery shall be, and hereby is declared exempted from all public taxes, so long as the same shall remain dedicated to the purposes of a cemetery."

The lands of the plaintiff have been embellished by the planting of rare and ornamental trees, flowering shrubs and plants. Driveways and paths have been laid out, marshes have been made into attractive ponds. A program of planting arranged by the Audubon Society has made the "place" a bird sanctuary. Members of natural history societies visit the grounds to study migratory birds. Monuments have been erected upon the grounds "to commemorate famous persons and important events in the history of the State and Nation." The remains of many notable persons are interred in the cemetery. Their graves are of interest to many, and "The public are freely admitted to the grounds. The number of visitors exceeds 75,000 annually . . . not counting relatives of persons buried in the cemetery, and persons who live in the neighborhood."

The plaintiff "employs, on an average, about one hundred persons whose work is performed exclusively in the upkeep, maintenance and operation of the cemetery, -- care of grounds, trees, planting, paths and drives. It employs no one for any other purpose or in any other work."

Under the provisions of c. 151A, 1 (f), (7), as it appears in St. 1937 c. 421, there is excepted from its operations "Service performed in the employ of a corporation . . . organized and operated...