90 N.J.L. 163 | N.J. | 1917
The opinion of the court was delivered by
This is an appeal from a judgment of the Supreme Court in a certiorari proceeding brought to test the validity of a tax* assessed by the borough of Totowa upon a building erected- by the “Mausoleum Builders of Xew* Jersey” for purposes of sepulture. The claim of the owners of the building, who were the prosecutors below and are the appellants here, was and is that this property is immune from taxation under section 3, paragraph 6, of the General Tax act of 1903 (('omp. tUat., p. 5083), which exempts “graveyards not exceeding* ten acres of ground, cemeteries and buildings for cemetery use erected thereon.”
It is to be borne in mind that a grant of exemption from taxation, even though made in respect to some particular property, is a personal privilege conferred upon the grantee. Morgan v. Louisiana, 93 U. S. 217; Wilson v. Gaines, 103 Id. 417; Memphis, &c., R. R. Co. v. Commissioners, 112 Id. 609; Mercantile Bank v. Tennessee, 161 Id. 161; State Board of Assessors v. Morris and Essex Railroad Co., 49 N. J. L. 193. The immunity, therefore, provided by the supplement of 1866 was granted to the owners of churchyards and to the owners of cemeteries; that is to say, to church organizations which maintain graveyards as appurtenances to their respective churches, and to 'cemetery associations and the owners of burial lots within the cemetery tract.
The Laurel Grove Cemetery Company, a specially chartered corporation of this state, was created for the purpose of acquiring land in Passaic county to he devoted to cemetery uses. It exercised the power conferred upon it, and located a cemetery in what is now know'll as Totowa borough. The tract was laid out in lots and plots, with walks and avenues running through it. The Mausoleum Builders of New Jersey is an organization incorporated under the General Corporation act of this state. Some of the objects of its creation, as set forth in its certificate of incorporation, are the building of mausoleums; the manufacture of every kind of material, and dealing in the same; the acquisition, holding and disposing of stocks and bonds, and other personal property; the acquisition and holding, leasing and convoying, of real estate in New Jersey and elsewhere, and the purchasing, owning, chartering and operating of steamboats, tugs, barges and other boats. Some time prior to the assessment of the tax under review' (but just when the return does not show), these two corporations entered into an agreement by the terms of which the cemetery company agreed to sell to the Mausoleum Builders a plot of ground within the limits of the.cemetery, one hundred by one hundred and fifty feet, for the sum of $10,000, for the purpose of enabling the purchaser to (>recl a mausoleum for the reception of the dead. The purchase-money was to he paid in installments, the first payment. to he made -when ground was broken for the erection of the building, the amount being $1,000, and each succeeding month $1,000 was to he paid until the whole sum was discharged. Pursuant to the provisions of this contract, the niausoleum company entered into possession of this plot and erected thereon the building which has been subjected to the tax.
It has already been pointed out that immunity from taxation, even though granted with respect to some particular property, is a personal privilege; and it is entirely settled that such immunity does. not pass to a purchaser of the property in the absence of an indication by the legislature, so clear and unmistakable as’to leave no doubt of its purpose, that it shall so pass. The authorities from the United States Supreme Court already cited, and our own decision in 49 N. J. L. 193, supra. fully recognize this principle. See, also, Picard v. East Tennessee, &c., Railroad Co., 130 U. S. 637.
Neither the language of the tax enactment, nor its history, suggests that in passing it the legislature intended to confer immunity from taxation upon business corporations that should see fit to devote a part of their capital to the erection of mausoleums for purely commercial reasons, and in the hope of making a profit out of the transaction. FTor any purpose to authorize the corporations to whom such immunity is granted to transfer the exemption to corporations of the character just described.
The judgment under review will be affirmed.
For affirmance—The Chief Justice, Parker, Minturn, Kaliscii, White, Heppexiieuieu, Wili.iaais, JJ. 7.
For reversal—The Chancellor, Swayzh, Bergen, Gardner, JJ. 4.