State ex rel. Willow Monument Works, Inc. v. Mountain Grove Cemetery Ass'n

• Decision Date: 13 May 1975
• Citation: 168 Conn. 447,362 A.2d 1341
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. WILLOW MONUMENT WORKS, INC. v. MOUNTAIN GROVE CEMETERY ASSOCIATION. WILLOW MONUMENT WORKS, INC. v. MOUNTAIN GROVE CEMETERY ASSOCIATION et al.

Page 1341

362 A.2d 1341

168 Conn. 447

STATE ex rel. WILLOW MONUMENT WORKS, INC. v. MOUNTAIN GROVE CEMETERY ASSOCIATION.

WILLOW MONUMENT WORKS, INC. v. MOUNTAIN GROVE CEMETERY ASSOCIATION et al.

Supreme Court of Connecticut.

May 13, 1975.

A. Reynolds Gordon, Bridgeport, with whom, on the brief, was Arthur A. Hiller, Bridgeport, for appellant (plaintiff) in both cases.

Frederick L. Conley, Bridgeport, with whom, on the brief, was James B. Stewart, Bridgeport, for appellee (named defendant) in both cases.

Richard J. Lynch, Asst. Atty. Gen., for appellee (defendant Atty. Gen.) in the second case.

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

LOISELLE, Associate Justice.

The defendant Mountain Grove Cemetery Association, hereinafter referred to as Mountain Grove, is a cemetery open to the public, located on North Avenue, the Bridgeport-Fairfield town line. It was organized in 1849 as a private enterprise for cemetery purposes and in 1889, by special act, it became a nonstock corporation organized and existing for the purpose of a cemetery. It now has in excess 125 acres of land. Mountain Grove has on its premises one of the two crematories existing in Connecticut. The crematory, opened pursuant to No. 85 of the 1949 Special Acts, serves the public at large. In 1967, Mountain Grove commenced, and to this day continues to sell bronze markers for profit to its cemetery lot holders. It receives its gross income from various sources including the sale of lots, charges for digging graves, tent fees, income from securities, crematory income, sale of crypts in its mausoleum, sale of space in the columbarium, sale of bronze urns for crematory remains and face plates in the mausoleum, in addition to the sale of bronze markers. Except for crematory services, Mountain Grove's sales and services are limited to lot holders in its cemetery. It alone supplies canopies or tents for funerals and does all necessary foundations on installations of markers and stones in order to avoid damage and to ensure proper maintenance.

The plaintiff in both cases, Willow Monument Works, Inc., hereinafter referred to as Willow Monument, brought these actions for forfeiture of Mountain Grove's charter and for an injunction to restrain Mountain Grove from selling bronze markers to its lot holders. Willow Monument is located across North Avenue from Mountain Grove. It has been in business since 1942. Of the total markers, either bronze or stone, sold and installed by anyone at Mountain Grove, including monument dealers and Mountain Grove itself, Willow Monument does about 40 to 45 percent of this business. Since 1967, out of 135 bronze markers installed at Mountain Grove, 13 were sold by Willow Monument, 4 by other private marker dealers, and 118 by Mountain Grove. Mountain Grove does not solicit or advertise the sale of bronze markers other than at the cemetery itself. A lot holder is told that Mountain Grove has the bronze markers or that they may be bought elsewhere. No extra charge is made to lot holders who purchase bronze markers elsewhere, and no representation is made that there is any advantage in buying a bronze marker from Mountain Grove over buying one from another source. The only requirement in Mountain Grove's regulations concerning bronze markers is the dimension. The proceeds of the sale of bronze markers go into a general fund which is used exclusively for the maintenance of the cemetery. Mountain Grove attempts to make a profit on all its services and operations so as to pay for the cost of maintaining the cemetery and to establish a perpetual fund which will be adequate to provide for the maintenance of the cemetery after it is full and derives no further income from the sale of grave spaces.

In its combined appeal from the judgment rendered for Mountain Grove in each case, Willow Monument claims that inasmuch as Mountain Grove is a public cemetery it is a charitable organization devoted to a charitable public use and that by virtue of the statute of charitable trusts; General Statutes § 45-79; and the statute of charitable uses; General Statutes § 47-2; ¹ lands and property owned by it may not be used for commercial purposes unless reasonably necessary to continue that charitable purpose. It is conceded that the sale of bronze markers for a profit is not reasonably necessary to the operation of the cemetery.

Section 2 of part 1 of chapter 6 of title 18 of the General Statutes (Rev.1875) ² reads as follows: 'All estates that have been or shall be granted for the maintenance of the ministry of the gospel, or of schools of learning, or for the relief of the poor, or for any other public and charitable use shall forever remain to the uses to which they have been or shall be granted according to the true intent and meaning of the grantor, and to no other use whatever.' The marginal note designates this statute as '(l)ands given to charitable uses.'

In 1884, the case of Coit v. Comstock, 51 Conn. 352, 386, held that 'bequests for the purpose of keeping burial lots or cemeteries in good order or repair, are not given in charity, and, therefore, are not protected by the statute of charitable uses.' This decision indicates the rule in this state that cemeteries were not charitable operations.

In 1885, apparently as a result of the case of Coit v. Comstock, supra, by public act, chapter 36, the General Assembly enacted the following: 'All estates that have been or shall be granted for the preservation, care and maintenance of any cemetery, cemetery lot, or of the monuments thereon, shall forever remain to the uses to which they have been or shall be granted, according to the true intent and meaning of the grantor, and to no other use whatever.' This act was entitled 'An Act relating to Charitable Uses.' The marginal note states: 'Estate granted for care of cemetery or monument, to remain to the use for which granted.' Although the title of the act referred to charitable uses, this act made no distinction between public and private cemeteries; FitzGerald v. East Lawn Cemetery, Inc., 126 Conn. 286, 291, 10 A.2d 683; and 'did not purport to, nor did it, denominate, as charitable, such a clearly noncharitable bequest.' Clark v. Portland Burying Ground Assn., 151 Conn. 527, 532-33, 200 A.2d 468, 471; cf. Bronson v. Strouse, 57 Conn. 147, 149, 17 A. 699.

In the revision of the General Statutes of 1887, the revisers combined the 1885 act with the statute of charitable uses so that it read as it does in the present General Statutes § 47-2 except for slight inconsequential wording. This combining was probably made because of the misleading title given to the 1885 act. Clark v. Portland Burying Ground Assn., supra, 151 Conn. 533, 200 A.2d 467. "There is a presumption that a general revision of the statutes does not change the law'; Miller v. Phoenix State Bank & Trust Co., 138 Conn. 12, 16, 81 A.2d 444, 447; and in the absence of anything evincing a contrary intent, the meaning and the effect of the statute were unchanged. State ex rel. Rundbaken v. Watrous, 135 Conn. 638, 648, 68 A.2d 289; Bassett v. City Bank & Trust Co., 115 Conn. 393, 400, 161 A. 852.' Southington v. Francis, 159 Conn. 64, 70, 266 A.2d 387, 391. It is apparent from this history that the provision in § 47-2 concerning grants, devises or bequests to a cemetery prevents such grant, devise or bequest from invalidity under the rule against perpetuities but that it does not make such transfer a charitable one. Nor does the statute either directly or by implication make the operation of a cemetery a charitable one. In Weed v. Scofield, 73 Conn. 670, 678-79, 49 A. 22, 26, decided a considerable time after the enactment of the 1885 act and its being combined with the statute of uses by the revision of 1887, it was unequivocally stated that a cemetery association 'is neither a religious nor a benevolent society or institution.'

Willow Monument points out that a cemetery has the right of eminent domain and is exempt from property and succession taxes as are all charitable uses. The right of eminent domain is specifically given to the owner of any cemetery by virtue of General Statutes § 19-147 and § 48-18. The fact that the right to acquire land as a public burying ground for public use is granted to a cemetery does not make it a charitable use any more than a right of eminent domain granted to a public utility makes it a charitable use. Property held for cemetery use is specifically exempt from taxation under General Statutes § 12-81(11). This is separate and distinct from the tax exemption of property used for charitable purposes under § 12-81(7). According to the facts found and conclusions reached by the court, Mountain Grove is exempt from succession taxes. Willow Monument claims that as no specific statute grants such exemption, the cemetery must come under the provision for charitable organizations in General Statutes § 12-347. Although there is no specific exemption for cemeteries generally, § 12-347 does make exemption for a trust for the care of any cemetery lot. And it must be noted that gifts for charitable purposes do not lose their charitable nature because a cemetery may be involved. See FitzGerald v. East Lawn Cemetery, Inc., 126 Conn. 286, 10 A.2d 683, where a bequest to a trust to build and maintain a chapel in a private cemetery open to the public, such as Mountain Grove, was held not to be a bequest to the cemetery but for a chapel to be erected in the cemetery which sufficiently served the public interest so as to be a bequest for a charitable use. Id., 290, 291, 10 A.2d 683.

Willow Monument seems to argue that if the use is public it necessarily becomes a charitable use. ³ It also relies upon the language in such cases as FitzGerald v. East Lawn Cemetery, Inc., supra; Mitchell v. Reeves, 123 Conn. 549, 196 A. 785; Corbin v. Baldwin, 92 Conn. 99, 101 A. 834; Connecticut College for Women v. Calvert, 87 Conn. 421, ...