Greenwood Cemetery v. City of Wayne

110 Neb. 300 | Neb. | 1923

Rose, J.

This is a proceeding to review an assessment of property of a cemetery association for special benefits derived from the paving of a public street. The board of equalization of the city of Wayne made the assessment. The property affected belongs to the Greenwood Cemetery, a private corporation organized under statutory authority for the purposes indicated by its name. Comp. St. 1922, jsec. 588. The proceedings of the city in paving the street and in thus benefiting the cemetery association are conceded to be regular, but the validity of the assessment for special benefits is said to b:e void for the reason that cemetery property is exempted by statute. On petition in error the assessment by the board of equalization was reviewed in the district court,-, where it was held that the cemetery was specially benefited, by tbe pavement to tbe extent of $3,437.76. From an order permitting the payment. of this sum out of general funds available for improvements the association has appealed.

Did the legislature exempt the property of cemeteries from assessments for local improvements? In absence of an exemption the city that paved the street or avenue had power to levy a special assessment on adjacent property of the cemetery' in proportion to the special benefits conferred. Comp. St. 1922, sec, 4283. .The street or avenue improved led to the cemetery and its land was adjacent thereto. A purpose to which funds of the cemetery may be appropriated is the improvement of avenues leading thereto. Comp. St. 1922, sec. 592. A statute invoked to show exemption from assessments for benefits declares:

“Burial lots sold by such association shall be for the sole purpose of interments, and shall be subject to the rules prescribed by the association, and shall be exempt from taxation, execution, attachment, or any other claim, lien or process whatever, if used exclusively for burial purposes, and in no wise with a view to profit.” Comp. St. 1922, sec. 593.

Only “burial lots sold” for the “sole purpose of interments” are exempted, “if used exclusively for burial purposes.” It is shown without dispute that the cemetery has 420 unsold burial lots. It is therefore clear that these lots are not exempted by the statute quoted.

The following legislation, however, is cited to show that unsold burial lots cannot be sold under any form of legal process:

“Lands appropriated and set apart as burial grounds, either for public or private use, and so recorded in the county clerk’s office of the county where such lands are situated, shall not be subject to sale on execution on any judgment to be hereafter recovered, to taxation, to dower, nor to compulsory partition.” Comp. St. 1922, sec. 596.

It is settled law that a municipal assessment for a. special benefit accruing to real estate through a public improvement is not “taxation” as that word is used in the statute.

The “sale” forbidden is a sale “on execution ou any judgment.” The “judgment” to which reference is made by the legislature is a judgment at law in a court of justice, and does not include an assessment by a municipal board of equalization for a special benefit conferred by the paving of a street. Exemption is an exception to the general rule and to be available must be found in the terms of the statute. It seems clear that the unsold lots are not exempt from the assessment for special benefits. It follows that the city board of equalization had power to make an assessment for the proper benefits, which are shown to be $3,437.76.

Happily a forced sale of lots is unnecessary. The cemetery has on hand available funds amounting to $3,799.05 which may legally be applied to the expenses of improvements. Out of this fund the entire assessment may be paid at once or payments may be made as they fall due.

Affirmed.