Tatman v. Rochester Lodge No. 47
| Decision Date | 30 January 1929 |
| Docket Number | 13,273 |
| Citation | 164 N.E. 718,88 Ind.App. 507 |
| Parties | TATMAN v. ROCHESTER LODGE NO. 47, I. O. O. F. ET AL |
| Court | Indiana Appellate Court |
From Fulton Circuit Court; Frank E. Martindale, Special Judge.
Suit by Alfred A. Tatman against Rochester Lodge No. 47, I. O. O. F and the three trustees of the lodge to enjoin them from enforcing a resolution of the trustees relating to interments in a cemetery maintained by the lodge. From a judgment for defendants, the plaintiff appeals.
Affirmed.
Holman Bernetha & Miller, for appellant.
Selden J. Brown and Campbell & Emmons, for appellees.
This is an action by appellant against Rochester Lodge No. 47, I. O. O. F. and the three trustees of the lodge, to enjoin them from enforcing a resolution of the trustees relating to interments in the I. O. O. F. cemetery at Rochester. A demurrer was sustained to the complaint, hence this appeal.
The complaint alleges that appellee lodge owns a cemetery at Rochester and for more than twenty years has been and is now selling lots therein to the public for burial purposes; that there have been more than 100 lots sold in which no burials have yet been made; that for the last six years appellant has been manufacturing cement vaults for burial purposes, a large number of such vaults having been placed in said cemetery; that the vaults manufactured by appellant comply with all the rules and regulations of appellees with respect to the interment of bodies; that a large number of people have purchased vaults of appellant and placed the same in graves in the cemetery and will continue to do so unless prevented by appellees; that a large number of lot owners will in the future purchase such vaults from appellant unless prohibited by the resolution hereinafter referred to; that appellees, without authority of law, have also been engaged in furnishing vaults for profit to lot owners, such vaults made by appellees not being as salable as the vaults furnished by appellant; that appellees, by reason of a desire to monopolize the sale of vaults and to provide a market for vaults made by them, and for the purpose of increasing the cost of appellant's vaults and preventing competition, in October, 1922, passed a resolution that interments should be made in said cemetery only in brick, stone, cement, metal or slate vaults, and that a charge of $ 5 should be made for the setting of any vault, except those furnished by appellee lodge; that appellees notified appellant of the passage of said resolution and that he would be required to comply with such resolution; that appellees had no authority to pass the resolution in question, which it is alleged was passed for the sole purpose of discriminating against appellant, and compelling him to charge such a price for his vaults as would compel the public to buy vaults furnished by appellees, which would tend to ruin appellant's business and result in great injury to the public; that, since the passage of such resolution, appellant has been compelled to, and has paid to appellees $ 300 for vaults furnished by him, all of which he paid under protest; that the resolution mentioned is void and that appellees will continue to enforce the same and deny appellant the right to place any vaults in the cemetery to his damage. Appellant asks that appellees be enjoined from enforcing the resolution, and for $ 500 damages.
Appellant contends appellee lodge is a quasi-public corporation with such powers only as are conferred by statute; that it cannot engage in business for profit; that the business of selling vaults by appellee is ultra vires; that the resolution tends to create a monopoly by stifling competition and is both unreasonable and against public policy and should be declared void. We cannot agree with the contention that appellee lodge is either a public, or a quasi-public corporation. In determining the sufficiency of the complaint, we must keep in mind that appellant is neither a member of appellee lodge nor does he own a lot in its cemetery. He manufactures a cement vault which he sells to those having the privilege of burial in the cemetery. Appellant concedes appellees had a right to establish rules and regulations governing the management of the cemetery. His contention is that the resolution, in so far as it requires the payment of a fee of $ 5, where the vault used is not furnished by appellee, is unreasonable, is against public policy and tends to create a monopoly.
If it be conceded, as claimed by appellant, that appellee has been selling burial lots to the general public and that the cemetery in question is a public cemetery, appellee, through its trustees, would without doubt have authority to establish reasonable rules regulating interments in such cemetery; to appoint a cemetery brickmason and grave digger, and by resolution prohibit all other persons from digging graves or constructing vaults in its cemetery. City Council of Augusta v. Bredenberg (1917), 146 Ga. 459, 91 S.E. 486. In Roanoke Cemetery Co. v Goodwin (1903), 101 Va. 605, 44 S.E. 769, a rule requiring all graves to be dug and refilled by the superintendent and requiring the payment of a fee for...
To continue reading
Request your trial