27 N.W.2d 916 | S.D. | 1947
Defendant city entered into a contract with the plaintiff for the paving of a portion of Fourth *589 Avenue in the City of Sioux Falls. The contract provided that the city would pay for the work by the issuance of "certificates of special assessment, levied upon the property, in the manner provided by law." After the work was completed, the city issued and delivered to plaintiff contractor an assessment certificate against a ten acre tract belonging to Woodlawn Cemetery. The certificate states that the city made an assessment upon abutting property and that the property in question had been legally assessed in the sum of $1,846.54, payable in five installments. Woodlawn Cemetery declined to pay the assessment on the ground that its property was exempt from special assessments for local improvements. Plaintiff brought this action claiming that the city was primarily liable if it had no authority to make the assessment.
Woodlawn Cemetery was incorporated in July, 1905, as a nonprofit corporation under the provisions of Sections 770 to 779, Civil Code 1903, which with minor changes are now SDC 11.19. It originally acquired a tract of land within the corporate limits of the city of Sioux Falls, consisting of approximately eighty acres. This action has no relation to that property. A zoning ordinance adopted July 20, 1928, prohibits the use of property in a residential or commercial use district for cemetery purposes. Thereafter, and while that ordinance was in effect, Woodlawn Cemetery acquired title to a tract of approximately forty acres adjoining its cemetery grounds. This forty acre tract includes the land described in the assessment certificate and is within a part of the city which is restricted to commercial and residential uses as defined by the zoning ordinance. It has not been subdivided into burial lots or used for cemetery purposes.
The trial court held the property in question to be exempt from special assessment and the assessment thereon for the improvement of the street to be illegal and void. From a judgment rendered for the amount demanded in the complaint, the city has appealed.
[1-3] The statute relating to cemetery corporations provides that "All the property of every such corporation and the lots sold by it to individual proprietors shall be exempt from taxation, assessment, lien, attachment, and *590
from levy and sale upon execution and all such real property shall be exempt from appropriation for streets, roads, or any other public uses or purposes." SDC 11.1911. While an assessment for local improvements, which in this case was the paving of a street, is regarded as a species of taxation and the exercise of the taxing power, yet there is a clear distinction betwen the terms "taxation" and "assessments." Winona St. P.R. Co. v. City of Watertown,
Notwithstanding such construction of the statute, the city contends that there is no good reason for concluding that the legislature intended the exemption to apply to property not held and used by the corporation for purposes for which it was not created. Authority is conferred upon a cemetery corporation to acquire and to hold "real porperty not exceeding one hundred sixty acres for the sole use and purpose *591 of a burial ground." SDC 11.1906. "Whenever an interment is made in any lot transferred to an individual owner by the corporation, the same thereby becomes forever inalienable while any person is buried therein and descends in regular line of succession to the heirs at law of the owner." SDC 11.1905. Whenever the officers of a cemetery corporation find it necessary to acquire additional land for cemetery purposes, they "may proceed to have the land * * * condemned," if they cannot acquire it by purchase. SDC 11.1907. Such corporation has the power to improve its grounds and to prohibit improper use or ornamentation of lots and the duty is imposed upon its officers to adopt by-laws "to the end that all the appliances, conveniences, and benefits of the public and private cemetery may be obtained and secured." SDC 11.1908. Receipts derived from sale of burial lots, after payment of current expenses, must be "exclusively applied, appropriated, and used in protecting, preserving, improving, and embellishing the cemetery and its appurtenances." SDC 11.1910. As we have already pointed out, the property of such corporation is exempt from "taxation, assessment * * * and * * * from appropriation for streets, roads, or any other public uses or purposes." The policy as declared by these provisions had its beginning in territorial laws. Section 49, Chapter 15, Laws 1867, authorized cemetery corporations to "hold land exempt from execution and from any appropriation to public purposes, for the sole purpose of a cemetery, not exceeding one hundred acres, which shall be exempt from taxation if used exclusively for burial purposes, and in no wise with a view to profit." It may be noted incidentally that section 11.1911, supra, in its original form, § 561, Civ Code, Rev. Codes 1877, granted exemption to "such benevolent corporations." The word "benevolent" was omitted from Section 8898, Rev. Code 1919, and with this exception the original section, § 561, supra, has been retained in the several revisions without modification.
[4, 5] The power of the legislature to exempt from special assessments property devoted to cemetery purposes cannot be doubted. See decisions collected in Ann. Cas. 1912A 1047; L.R.A. 1918A 157; 71 A.L.R. 322. The exemption *592 is not restricted to such land as has been actually occupied by graves and used for purposes of interment, but comprehends lands dedicated and set apart for future interment purposes, if not excessive in extent.
[6] It is not claimed that the city had no power to prohibit by ordinance the use of the land in question for cemetery purposes. An ordinance within its proper scope has the same local force and effect as a statute. McCleod v. Tri-State Milling Co., S.D.,
The case of People ex rel. Oak Hill Cemetery Ass'n v. Pratt,
In Minnesota a contrary result under similar statutory provisions was reached. State v. Ritschel,
[7-10] It is contended that the general exemption of "all the property of * * * such corporation" (§ 11.1911, supra) includes property of a cemetery corporation whether *594
used or intended to be used for cemetery purposes or not. Exemptions are based upon considerations of public policy. Constitutional and statutory provisions are to be given a reasonable, natural and practical construction to effectuate the purpose for which an exemption is created. State ex rel. Eveland v. Erickson,
The judgment appealed from is reversed.
All the Judges concur, except POLLEY, J., not sitting. *595