
    Evergreen Memorial Park Assn., Appellant, v. Evatt, Tax Commr., et al., Appellees.
    (No. 29097
    Decided January 20, 1943.)
    
      
      Messrs. Miller & Hornbeck and Mr. John H. Ritter, •for appellant.
    
      Mr. Thomas J. Herbert, attorney general, and Mr. .Ferry L. Graham, for appellees.
   Hart, J.

The sole question to be determined in this ■case is whether the entire tract of land of the appellant, the Evergreen Memorial Park Association, is held by it exclusively for burial purposes, and in no wise with a view to profit, and whether being so held it is exempt from taxation.

Section 2, Article XII of the Constitution, provides in part that “Land and improvements thereon shall be taxed by uniform rule according to' value. * * * general laws' may be passed to exempt burying grounds, * * * but all such laws shall be subject to alteration and repeal.”

Pursuant tó the authority thus granted, the General Assembly in 1859 passed an act (56 Ohio Laws, 175, 177, Section 3), a portion of which was substantially in the form of Section 5350, General Code, as it now exists. This section in its present form is as follows:

“Lands used exclusively as graveyards, or grounds for burying the dead, except such as are held by a person, company or corporation with a view to profit, or for the purpose of speculating in the sale thereof, shall be exempt from taxation.”

This section of the statutes was originally enacted to provide for the exemption from taxation of all sorts of burying grounds, including private burying grounds, church, community, township and municipal cemeteries. The only limitation barring such exemption was that the lands must not be held “with a view to profit, or for the purpose of speculation in the sale thereof. ’ ’

Antedating the legislation above referred to, the General Assembly, on February 24, 1848, passed an act (46 Ohio Laws, 97) authorizing the incorporation of cemetery associations. Section 6 of the act provides as follows:

“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.”

It will be noted that under this act, the burial lots, when sold by the association, became exempt from taxation, execution, attachment or any other claim or lien if used exclusively for burial purposes. That act was amended in 1875 (72 Ohio Laws, 113). Section 5 •of the act as amended enlarged the power and privileges of cemetery associations so as to permit them to acquire and “hold, not exceeding 100 acres, ivhich said land shall be exempt from execution, from taxation, and from being appropriated to .any other public purpose, if used exclusively for burial purposes, and in no wise with a view to profit.” (Italics ours.)

It is to be observed that the lands held by such association and not merely the lots sold by it, then became exempt from taxation if used exclusively for burial purposes and in no wise with a view to profit.

This section of the act became Section 10093, General Code. It was amended in 1921 (109 Ohio Laws, 172) and again in 1931 (114 Ohio Laws, 227). The pertinent parts of the section as amended and in force at the time appellant applied to the Board of Tax Appeals for the exemption of its lands from taxation was as follows:

“A company or association incorporated for cemetery purposes may appropriate or otherwise acquire and may hold, not exceeding six hundred and forty acres of land; also, take any gift or devise in trust for cemetery purposes, or the income from such gift or devise according to the provisions of such gift or devise, in trust, all of ivhich shall be exempt from execution and from being appropriated for any public purpose and shall he exempt from taxation, if held exclusively for hurial purposes, and in no ivise ivith a-view to profit.” (Italics ours.)

It will be observed that under the form of the statute as above quoted, appellant or any other cemetery association may acquire and hold not exceeding 640-acres of land all of which shall be exempt from taxation, if held exclusively for burial purposes and in no wise with a view to profit. In other words, it is not-now necessary that all the lands held by a cemetery association be used for burial purposes but only that they be held exclusively for burial purposes. The law on this point is well stated in 7 Ohio Jurisprudence, 62, Section 53, as follows:

“Under General Code Section 5350, and under General Code -Section 10093 as it was originally enacted, this exemption extends to lands ‘used’ exclusively for burial purposes, except such as are held with a view to profit. In 1921, the latter section was amended by changing the word ‘used’ to ‘held,’ so as to exempt lands of a cemetery corporation ‘if held exclusively for burial purposes and in no wise with a view to profit.’ In a case decided before such amendment it was held that a tract of land belonging to a cemetery association was not entitled to exemption where it was not. platted and no lots therein were sold and no interments-made, until after the date upon which the lien for taxes-attached to all taxable real property, even though it was purchased with the intention of using it ultimately as an addition to the existing cemetery of the association and some steps had been taken to prepare it for such use. But under the statute as amended it seems that all lands held by a cemetery corporation exclusively for burial purposes and in no wise with a view to-profit, are exempt from taxation regardless of whether or not they are in actual use, or even in process of preparation, for burial purposes.”

In 1927, Honorable Edward C. Turner, then Attorney General of Ohio but now a member of this court, had occasion in Ms official capacity to construe Section 10093, General Code. In the course of his opinion on this subject (Opinions of the Attorney General, 1927, page 135) he said:

“Under the provisions of Section 10093, General Code, lands held by a cemetery association exclusively for burial purposes and in no wise with a view to profit, regardless of whether or not said lands are in process of preparation for burial purposes, are exempt from taxation * * *. The conclusion then is that the lands held by The Spring Grove Cemetery Association [Cincinnati] under the provisions of Section 1Ó093 are exempt from taxation if they are held exclusively for burial purposes and in no wise held with a view to profit. This is true regardless of whether or not said lands are in process of preparation for burial purposes.”

Finally, the implications arising from the provisions of the latter part of Section 10093, General Code, would seem to be conclusive of its meaning on this point. It is therein provided that “the trustees of such company or association, whenever in their opinion any portion of such lands is unsuitable for burial purposes, may sell and convey by deed in fee simple, in such manner, and .upon such terms as may be provided by resolution of such trustees, any such portion or portions of said lands, and apply the proceeds thereof to the. general purposes of the company or association; but on such sale or sales being made, the lands so sold shall he returned by the trustees to the auditor of the proper county, to be by him placed tipon the grand duplicate for taxation.” (Italics ours.)

The fact that a cemetery association may sell land which it has acquired but which it has found to be unsuitable for burial purposes, whereupon such lands must be restored to the tax duplicate, can mean only that lands held but not used by the association exclusively for burial purposes, are, while so held, exempt from taxation.

It is quite clear that Sections 5350 and 10093, General Code, have concurrent operation and both must be considered as bearing upon the questions at issue. The Board of Tax Appeals denied the application for the exemption of the 20.01 acres of the tract held by appellant because it found that these acres were not used exclusively for cemetery purposes. The board could deny such exemption only when it found that the acres were not held exclusively for burial purposes, or that they were held with a view to profit. There is nothing in the record to rebut the evidence of the appellant that the lands in question were held by it exclusively for burial purposes, and the Board of Tax Appeals did not find that they were not so held. Appellant, under its articles of incorporation and charter powers, cannot legally hold lands for any other .purpose.

Neither is there any evidence in the record that the lands in question are held by the appellant with a view'to profit. The evidence on this subject is to the contrary. There is no evidence that the land and improvements were sold to the appellant for more than they were worth, and besides the statute must be concerned with the profit that might be made by the appellant as the holder of the property and not the profit which may have been made by the party who sold the property to the association. Furthermore, the Board of Tax Appeals did not deny the application because the property was being held with a view to profit. The evidence that the property is not being held by the appellant with a view to profit is undisputed and there is no issue made in the record on this point.

•The decision of the Board of Tax Appeals is affirmed in part and reversed in part, and the board is directed to exempt from taxation the remainder of the tract in question held by appellant, consisting of approximately 20.01 acres.

Judgment accordingly.

Zimmerman, Bell and Williams, JJ., concur.

Weygandt, C. J., Matthias and Turner, JJ., dissent.

Turner, J.,

dissenting'. I agree with the syllabus and my Attorney General Opinion cited above, but dissent from the judgment for the reason that appellant did not sustain the burden of proving before the Board of Tax Appeals that this real estate was in no wise held with a view to profit. It appears from the record that the organization of Evergreen Memorial Park Association was a real estate promotion entered into for profit by one Albert H. Bramson, the owner of a tract of land upon which the taxes were partly unpaid.

In the case of Stritch, City Aud., v. Budget Commission of Clark County, 140 Ohio St., 495, 45 N. E. (2d), 601, we held:

“Upon an appeal to this court a decision of the Board of Tax Appeals will not be reversed unless the evidence discloses that the decision is unreasonable or unlawful. (Paragraph 2 of the syllabus in the case of Board of Education of Cleveland Heights City School Dist. v. Evatt, Tax Commr., 136 Ohio St., 283, approved and followed.) ”

As said by Judge Matthias in Zindorf v. Otterbein Press, 138 Ohio St., 287, 292, 34 N. E. (2d), 748:

“This court will not interfere with a decision of the Board of Tax Appeals unless it appear from a consideration of the entire record that such decision is unreasonable or unlawful.” (Italics mine.)

This court has held repeatedly that a right to exemption from taxation must appear with reasonable certainty and must not depend upon a doubtful construction of any constitutional or statutory language. (See In re Estate of Taylor, 139 Ohio St., 417, 40 N. E, [2d], 936, and cases there cited; also Incorporated Trustees of Gospel Workers Society v. Evatt, Tax Commr., 140 Ohio St., 185, 42 N. E. [2d], 900.)

The law of the earlier cases is summarized by Judge Matthias in the case of Cullitan, Pros. Atty., v. Cunningham Sanitarium, 134 Ohio St., 99, 100, 16 N. E. (2d), 205, as follows:

' “ * * * There is no presumption favorable to exemption from taxation. On the contrary, the right to such exemption must be shown ‘indubitably to exist.’ ”

With the foregoing in mind, let us examine the record of the proceedings"before the Board of Tax Appeals and see whether appellant established that that part of the real estate which the Board of Tax Appeals refused to exempt from taxation was held in no wise with a view to profit.

Albert H. Bramson testified that he was “generally in the real estate business.” He further testified that he was the owner of the real estate in question prior to the organization of Evengreen Memorial Park Association.

At the time of the application for exemption, the entire property was on the tax duplicate at $5,270 after all the claimed improvements had been made, excepting that the cement block and stone truck garage built in 1939 had not yet been assessed for taxation.

The plan which Mr..Bramson, the real estate dealer, conceived for the sale of his acreage, on which a large portion of the 1938 taxes were unpaid, may be seen from the following excerpts from his testimony:

“The witness: * *• * ' No interest has been paid. I am perfectly contented to wait along until such time as it [the association] can pay it, is able to pay it. * * *
“A. Well, I can give you an idea about that. See, a cemetery business, if you conduct it strictly as a cemetery, and as we are conducting it, and restrict the sales for only immediate use, and — for only that use, rather, and refuse- sales for investment, you cannot derive enough income when you first start, to pay back the original investment of the property; but as time goes along you increase, oh, if you have 100 burials, the first year, you automatically are going to have from the same families, 125, from the same people, the second year, and if you add 125 to the first hundred, you have got 225. So the following year that is increased again, you see. So that while you have a few when you start with, you keep on doubling up as you go along, so that you are first beginning to see sunshine in a cemetery at the end of about a five-year period.”

Mr. Bramson disclosed that the approximately 24% acres' would divide up to some 18,000 to 20,000 graves when developed, at $30 a grave, which would mean a total possible selling price of $600,000 in addition to the charges made by the association for grave digging, etc.

While the majority statement of facts refers to the price of single-grave lots as $13.50, Mr. Bramson testified:

“In our single grave sections the graves averaged about $13.50 to date, plus an interment charge of $15 for each grave used. That interment charge applies to family plot graves, as well as single graves. The family plot section, the price of our graves to date are $37.50 per grave, in the family plot section.”

The Department of Taxation’s investigator found that single-grave lots are priced at $25 and four- or six-grave lots, of which about twenty had been sold, at a smaller price per grave, depending on location.

Inquired of as to his sales method, Mr. Bramson testified:

“They are being sold by church men, by pastors of various churches, and by — through undertakers, and •by application by inquiries which come in.
“Q. How many colored churches do you contact?
“A. All of them.
“Q. Give us some idea. How many are in this ■district?
“A. About a hundred, I guess. Reverend Crable [President of Evergreen Memorial Park Association] is the Moderator of all the Baptist churches of Ohio, .and through him we contact all Baptist churches.”

Exhibit B shows that up to the time of the application for exemption, Evergreen Memorial Park Association had spent $2,368.08 for advertising and :$1,626.18 for sales expense.

Here, then, was Mr. Bramson’s plan with a vieto to profit: To organize.a cemetery association which he would control and to turn over the legal title of his real estate to the association, which would avoid the payment of taxes; no down payment of any kind to be made by the association, as that would involve bringing in outsiders to put up the cash and interfere with control; to secure some prominent churchman to stand at the front of the enterprise and then to gather about this prominent churchman a sales organization of people who believed they were doing a public service.

From the evidence, it is clear that Mr. Bramson expected that at the end of approximately five years he would receive for his non-income-producing tract, on the tax duplicate at $5,270, the principal sum of $60,000 and accumulated interest of $15,000 without -expense of any kind — all advertising and sales expense to be paid out of the cemetery association’s receipts and a tax exemption to be secured through the as-, sociation.

In addition, Air. Bramson provided that he was to draw a salary of $1,200 per year. Even if this salary was not increased as sales grew, he would be set to get a total of $81,000 for this vacant and unproductive land. If he could not get all of this money, he could still foreclose his mortgage and get either the balance or all of his real estate back.

Pursuant to the foregoing plan, which is clearly deducible from the evidence, Air. Bramson did organize the cemetery association; did turn over the naked legal title to the real estate to the association; did become manager, secretary and treasurer; did secure a prominent churchman to head up the association; and is selling the lots not only without any expense to himself but drawing a salary for looking after his own interests.

I am unable to see Evergreen Alemorial Park Association as something separate and apart from Air. Bramson. To me, this association, with not a dollar invested, is a mere agency or instrumentality of Air. Bramson. Evergreen Alemorial Park Association may have no profit, but through it Air. Bramson will have a substantial profit. However, if Air. Bramson’s own figures are verified by experience the association will be able to sell lots to realize in gross ten times the amount of the mortgage which was the sole consideration.

As the refusal of the Board of Tax Appeals to exempt more than 4.4 acres of the land in question is neither unreasonable nor unlawful, its decision should be affirmed.

Weygandt, C. J., concurs in the foregoing dissenting opinion.  