Woodmere Cemetery Ass'n v. City of Detroit

192 Mich. 553 | Mich. | 1916

Lead Opinion

Ostrander, J.

(after stating the facts). It is asserted by complainant that the only method provided by law. for the collection of a paving tax in Detroit is by a sale of the property if the tax is not paid. This assertion is not disputed by defendant. Whether the city may sue the owner of the property as for a debt (see Charter, § 221), in any case where a special .assessment for paving has been laid and is not paid, Is not in this case a material question. It is clear that in the scheme for paying taxes each assessment constitutes “a lien, until paid, upon said lots or parcels of real estate,” and the lien may be enforced by a sale of the property. Whether the defendant city had a lien upon complainant’s property for the particular tax, enforceable by a sale of the property, is a question which is answered by reasoning which necessarily determines whether the property was exempt from the tax. It is impossible to consider whether the property of complainant is exempt from the particular tax or assessment, apart from the remedy provided for the collection of the tax. If the property is exempt from the lien, it is exempt from the tax. In my opinion, the property here in question is exempt from the particular tax. It is exempt from the general taxes by virtue of 1 Comp. Laws, § 3830 (1 Comp. Laws 1915, § 4001); it is exempt from the particular tax by virtue of a settled State policy evidenced by the provisions in the charter of complainant and in other statutes. It was said by this court in Avery v. Cemetery Co., 127 Mich. 125, 129 (86 N. W. 538, 540):

“It is the settled policy of this State, in common with the universal sentiment of mankind, to preserve and maintain the burial places of the dead. The legislature has; by express enactment, prohibited the sale, except for burial purposes, or mortgaging, of lands set apart for cemetery purposes. It has also in express terms provided for the exemption from levy and sale on execution, or upon any other final process of a court, of all cemeteries, etc., while in use as repositories of the dead. This was within the power of the legislature to do, and so careful has the legislature been to preserve such properties for burial purposes that it has also in express terms taken it out of the power of the court of chancery to decree satisfaction of any judgment out of such exempt property.”

With respect to the particular tax the policy of the State is not less clear. Turning to the act, the charter of complainant, it is found that the premises by their dedication are irrevocably set apart for use as a burial place for the dead. The powers of the complainant are limited, and it can sell none of the land except for burial purposes unless “the same shall not be occupied or required for burial purposes, or for the uses of such cemetery.” A laying out of the grounds, a plan, is required. It cannot alter the plan or design for laying out the land in a way to interfere with rights of burial already granted. It can execute no mortgage, lien, or incumbrance upon the land used for burial purposes, nor grant burial rights in any mortgaged lands. It is a duty imposed upon complainant to preserve good order in the grounds, to see that they are well kept and in good condition, and after paying for the land to reserve at least two-thirds of all receipts derived from sale of burial rights, after payment of current expenses, for interest, improvements, and embellishing, until a permanent fund is created sufficient, when invested, to produce an income large enough to meet the expense of keeping the grounds perpetually in good condition. In effect, the complainant is a trustee to sell and convey lots for burial purposes, unable to create debts upon the faith of the property, unable to dispose of the property except for the designated and perpetual use. The land is "wholly exempt from taxation of any kind whatsoever,” and no street, highway, railway, sewer, or canal can be opened or constructed through the grounds without the consent of the board of directors of complainant. By 3 Comp. Laws, § 11711 (3 Comp. Laws 1915, § 15485), injuring tombs, monuments, gravestones, or other memorials to the dead, or any fence or railing intended for protection or for ornament, or mutilating or destroying any tree, shrub, or plant placed or being within any cemetery, is made a misdemeanor. The obvious purpose of the act cannot be accomplished if the land of a cemetery association may be sold in an adversary or adverse proceeding. It is impossible to reconcile the purpose to bestow perpetual burial rights in land, and to punish any interference therewith, with a purpose to disturb those, rights whenever a special improvement is made in the vicinity of the land.

It is the rule that words which exempt property from taxation are strictly construed, and it is familiar doctrine, too, that assessments, or taxes, for local special improvements are sustained upon the theory that the premises are benefited by the improvement. Such assessments are not taxes within the proper meaning of the word “taxes,” but represent a value or betterment added to the land itself. See a collection of cases in note to In re Sixth Avenue West, Seattle, 22 Am. & Eng. Ann. Cas. 1912A, 1047 (59 Wash. 41, 109 Pac. 1052). Applying these rules, it has been many times held that the mere fact that lands of a cemetery association are to be used solely for burial places does not exempt such lands from assessments for local improvements. Frequently, however, no observation has been given to the consequences of an enforced satisfaction of the tax. The power of the legislature to exempt cemeteries from assessments for local improvements cannot be doubted. In re Starr Street, 73 Misc. Rep. 380 (131 N. Y. Supp. 71); City of Pittsburg v. Cemetery Ass’n, 44 Pa. Super. Ct. 289; Harvard College v. City of Boston, 104 Mass. 470; Illinois Cent. R. Co. v. City of Decatur, 147 U. S. 190, 203 (13 Sup. Ct. 293), and cases cited. I construe our statutes as an exercise of this power, extending to every case in which the tax or assessment is by law made a lien upon the land enforceable by sale thereof. In this view, an answer to the defendant’s prayer that a sale be now ordered by the court is found in the opinion given in City of Louisville v. Nevin, 10 Bush (Ky.), 549 (19 Am. Rep. 78), in which case an order for a sale of a cemetery to enforce a special assessment for street improvement was denied. In that case, unlike the one at bar, the lots in the cemetery were completely filled with graves from which no revenue was derived, and the trustee had no funds to pay the assessment. In the case at bar it is apparent that the corporation complainant will yet derive from sale of lots, or burial permits, a revenue. But, in view of the provisions of the act under which complainant exists, the principle to be applied in each case is, in my opinion, the same. The court said:

“The lot having been completely filled with graves, and thus rendered useless for any other purpose than as a resting place for the dead, unless their graves are to be desecrated by being built over or dug up, or by the use of the property for the ordinary purposes of town lots, the chancellor would hesitate to lend his aid to subject it to sale. We know it has been intimated by courts'for whose opinions we have a high regard that this is a matter of sentiment with which courts have nothing to do; but fortunately we are not reduced to the alternative to decree the sale of a graveyard already filled with the ashes of the dead, or of seeming to refuse to carry out the commands of the law. The chancellor will not decree that to be sold which cannot be lawfully used for the ordinary purposes to which property of a like character is commonly applied, and especially when there is no imaginable beneficial use to which it can be put by the purchaser which would not subject him to punishment under the penal statutes of the State.”

See, also, Mount Auburn Cemetery v. Cambridge, 150 Mass. 12 (22 N. E. 66, 4 L. R. A. 836).

The defendant city had and has no lien upon the complainant’s property resulting from the paving assessment, the sale of it cannot be sustained, and the deeds issued upon the sales and the records thereof must be canceled and set aside. Nor can a sale of the premises be now decreed by the court.

I have considered, although counsel for defendant has not suggested it, whether as a condition to granting the equitable relief asked for by complainant, in view of revenue to be derived by it from the continued sale of lots, and of a possible, if not probable, enhancement of values brought about by the improvement itself, complainant should be decreed to pay the tax, the decree to be enforced by sequestration of a part or of all of the current or future net profits of complainant. Objections to such a course are obvious. Defendant is insisting upon its rights under the proceedings taken in alleged conformity with its charter. As has been pointed out, it has acquired no rights in or to the land here involved. Complainant is entitled to relief, not by reason of equitable considerations merely, but of right. Its land, as I have attempted to show, was exempt from the particular tax.

Without considering the other objections made to the tax, or to the method of levying it, the decree of the court below must be, and is, affirmed, with costs to complainant.

Stone, C. J., and Moore, and Person, JJ., concurred with Ostrander, J.

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Dissenting Opinion

Brooke, J.

(dissenting). I quite agree with my Brother Ostrander in holding that the lands of complainant devoted to cemetery purposes'cannot be sold for the purpose of collecting a special assessment. To permit the title to be alienated for the collection of a special assessment would be to work exactly the same evils as would follow for the purpose of collecting a general assessment.

I do not agree, however, that 3 Comp. Laws, § 8406 (3 Comp. Laws 1915, § 11161), should be construed as relieving the lands of complainant, devoted to cemetery purposes, from a special assessment for street improvement. See 1 Cooley on Taxation (3d Ed.), p. 362 et seq.; also 2 Cooley on Taxation (3d Ed.), pp. 1234, 1235; 28 Cyc. p. 1132. The courts have very generally held that statutes exempting cemeteries from taxation do not exempt them from special assessments for the cost of paving streets abutting their property. See In re Broad Street, 165 Pa. 475 (30 Atl. 1007); Newcastle City v. Stone Church Graveyard, 172 Pa. 86 (33 Atl. 236); City of Philadelphia v. Union Burial Ground Society, 178 Pa. 533 (36 Atl. 172, 36 L. R. A. 263); Illinois Cent. R. Co. v. City of Decatur, 147 U. S. 190, 197 (13 Sup. Ct. 293); Lefevre v. Mayor, etc., of Detroit, 2 Mich. 587; Buffalo Cemetery Ass’n v. City of Buffalo, 118 N. Y. 61 (22 N. E. 962), affirming 43 Hun, 127; Baltimore v. Green Mount Cemetery, 7 Md. 517; City of Lima v. Cemetery Ass’n, 42 Ohio St. 128 51 Am. Rep. 809); In re Sixth Avenue West, Seattle, 22 Am. & Eng. Ann. Cas. 1912A, 1047 (59 Wash. 41, 109 Pac. 1052), and cases cited in note on page 1051, decided June 14, 1910.

Our general tax law covering the subject (1 Comp. Laws, § 3830, subd. 6 [1 Comp. Laws 1915, § 4001, subd. 6]), while providing that the lands used exclusively as burial grounds, etc., shall be exempt, provides:

“The stock of any corporation owning such burial grounds shall not be exempt.”

Defendant by the second prayer in its cross-bill asks alternative relief to the following effect:

“That it be decreed by the court that said special assessment * * * is a debt due from said complainant to said city.”

Section 221 of the charter of the city of Detroit provides in part:

“And the said receiver shall have power in the name of the city of Detroit to prosecute any person refusing or neglecting to pay such taxes or any special assessment by a suit in the circuit court for the county of Wayne, and he shall have, use, and take all lawful ways and means provided by law for the collection of debts, to enforce the payment of any such tax or any special assessment.”

Section 231 in part provides:

“After which warrants for the collection of the same may be issued, and such proceedings for the collection thereof be had as are or shall be prescribed by law, or by any ordinance or resolution of the common council.”

The relief prayed for I think should be granted; and, there being no dispute as to the amount of the tax or the penalty and interest, a decree in favor of the defendant city should be entered in this court.

The money may not be realized upon this decree from a sale of the lands of complainant, devoted to cemetery purposes, but any other assets of complainant which could be reached by execution would be liable. Under this disposition of ;the case the rights of the holders of burial privileges in the cemetery proper would be protected, and complainant should be compelled to bear its just proportion of the municipal burden caused by the special improvement.

The decree of the court below should be modified as indicated, but without costs to either party.

Kuhn, Bird, and Steere, JJ., concurred with Brooke, J.