State ex rel. Asssociation v. LaNge

• Decision Date: 24 February 1885
• Citation: 16 Mo.App. 468
• Parties: STATE OF MISSOURI EX REL. EVANGELICAL LUTHERAN CEMETERY ASSSOCIATION, Appellant v. ROBERT LANGE, ASSESSOR, Respondent.
• Court: Missouri Court of Appeals

16 Mo.App. 468

STATE OF MISSOURI EX REL. EVANGELICAL LUTHERAN CEMETERY ASSSOCIATION, Appellant

v.ROBERT LANGE, ASSESSOR, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 24, 1885.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

W. B. THOMPSON, for the appellant: That a portion of the ground is used by the sexton of the cemetery association will not prevent an application thereto of the grant of exemption.-- The State ex rel. v. Powers, 10 Mo. App. 263; s. c. 74 Mo. 476; North, etc., Society v. Hudson, 12 Mo. App. 342.

LEVERETT BELL, for the respondent: The ground is not used for cemetery purposes under a strict construction of the grant.-- The People v. Cemetery, 86 Ill. 336; Mulroy v. Churchman, 52 Iowa, 238.

ROMBAUER, J., delivered the opinion of the court.

Among the sovereign powers of the modern state, the power of taxation is the most essential. Using the words of Chief Justice Marshall, we may say that “as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the state to abandon it does not appear.” Provident Bank v. Billings, 4 Pet. 561, 562. It necessarily follows from this, that all grants made by the state, be it to individuals or corporations, exempting them or their property from taxation must be construed, though reasonably, yet with the greatest strictness against the grant. Indeed, while courts may sometimes have failed in the correct application of the principle, they have never hesitated to assert it as fundamental, that in grants of this character the grantee can take nothing by intendment or implication, which lies beyond either the letter or spirit of the grant, that courts are not justified to refine for the purpose of resolving any latent doubt in favor of the grantee, but should decide, that if any doubt exists as to the terms or extent of the grant, the benefit of that doubt belongs to the people.

Starting from these premises and applying these unquestioned propositions to the facts of the case before us, we must reach the conclusion that the court below committed no error in denying to the relator a peremptory writ.

This is a proceeding by mandamus to compel defendant who is assessor of the city of St. Louis to cancel his official assessment of a lot of ground, because such lot is exempt from taxation by the terms of relator's charter.

The relator is a cemetery association, and is authorized by its charter to acquire and hold a tract or tracts of land not exceeding forty acres to be appropriated and used for a cemetery or burial ground. Its charter further provides that no sale of lots in said cemetery, or in any additional tract of land, purchased for the purpose aforesaid, shall be made, until at least one-fourth of said cemetery, or any tract of land appropriated by the corporation for the purpose aforesaid shall be laid off in suitable lots, etc. The last section of the charter, under which the exemption is claimed, is in the following words: “Said cemetery is hereby declared exempt from all taxes and assessments so long as the same shall remain dedicated to the purposes of a cemetery.” It must be evident from the terms of the charter herein set out, that the exemption claimed does not attach to the lands, simply because they are owned by the relator, nor does it attach to lands which the corporation may have purchased with a view of making a cemetery thereon. If such would have been the intention of the legislature it would have in express terms exempted all lands owned by the corporation, because the power of the corporation to hold lands is limited to forty acres, and the purpose for which it may acquire them, is limited to cemetery purposes. On the contrary, the charter in express terms draws a distion between the cemetery, which is exempt, and other tracts, which the corporation may acquire for cemetery purposes.

The corporation own two tracts of land divided and separated by a public highway, one consisting of lot 14, in James B. Clay's subdivision, and the other of lots 139, 140, 141, 142, and 143 of North Cote Brilliante subdivision, having acquired both tracts in 1867, about two years after its incorporation. Both tracts together do not exceed forty acres.

On the larger of these two tracts, it has laid out a cemetery, and has subdivided part of it into lots which it has sold for purposes of interment. This tract never was assessed for taxation, it being conceded that it is exempt...