
    Brown’s Heirs v. Pittsburgh.
    Under the Act of May 14,1874, providing for exemption from taxation, of, inter alia, all burial grounds not used or held for private or corporate profit, a cemetery otvned by a church, which sells lots therein to members only, the proceeds being paid into the church treasury, is not exempt from taxation, although the income derived therefrom is less than the expenditure. ■
    
      It seems that a judgment will not be reversed because a point of law was . reserved whether, under all the evidence, the plaintiff is entitled to recover— where the defendant did not except to the reservation at the trial, and where judgment has subsequently been entered for the plaintiff.
    Oct. 24, 1888.
    Errors, Nos. 111, 112 and 113, Oct. T. 1888, to O. P. No. 1, Allegheny Co., to review judgments for the plaintiff on points reserved in three actions of' scire facias sur claims for municipal taxes, at March T. 1882, No. 1303; Dec. T. 1883, No. 717; and Dec. T. 1884, No. 253, D. T. D.
    These three cases were tried together. The defendant requested the court to charge the jury, “ That, under all the evidence, the plaintiff is not entitled to recover.” Refused. Under the instructions of the court, the jury found for the plaintiff, subject to this reserved point: “ Whether, under all the evidence, the plaintiff is entitled to recover?” No exception was taken to this reservation. Subsequently the court entered judgment for the plaintiff on the point reserved, in the following opinion, by Stowe, P. J.:
    “ The plaintiff shows liens filed by the collector of delinquent taxes of the city of Pittsburgh, against Jacob Brown’s heirs, on twenty-eight acres of land in the 21st ward, city of Pittsburgh, amountiug to $52.47, and $52.16 and sci. fas. thereon.
    “ The evidence showed a case for the plaintiff for the taxes claimed, unless, as contended by defendant, the Act of May 14, 1874, exempting ‘all burial grounds not used or held for private or corporate profit,’ relieves the property in question from the payment of the taxes claimed by the plaintiff. This is the question reserved, under the evidence offered by defendant, which the jury found to be true, in its verdict. The real estate, against which the liens are filed, was purchased by the German Lutheran St. Peter’s Church, East Liberty, some time in 1878, for cemetery purposes. It contains some twenty-eight acres and sixty-five perches, and is all enclosed. It was paid for by notes given by the church, which are being paid off from time to time out of the sales of lots in the cemetery, all the proceeds of which go into the church treasury. The sole revenue is from these sales of lots made to members of the church, and this has not paid expenses and interest on the notes, and the church is compelled to make up the deficiency in the receipts necessary to pay the expenses of the church and cemetery, the whole income going into the church treasury, and, out of it all, improvements being paid, so far as it will reach. No church member can be buried in the cemetery until a lot or grave has been purchased for him.
    “ The question now arises, is this a place of burial not used or held for corporate profit ? It seems to me that it is not. It is urged by defendant’s counsel that there can be no profit within the meaning of the Act unless the revenues exceed the expenses. In other words, that, until it appears the income derived from a place of burial is greater than the expenses incident to its improvement, it cannot be taxed. But this is' confounding profit, in its enlarged sense, with net profits, or the difference between expenses and income. I do not think it was intended to allow a church corporation to escape taxation of its property not used for church purposes, by continually making improvements equalling its income, thus continually increasing its value. The result of the defendant’s position, if carried out, would be to allow all the expenses of a church to be paid out of the profit of its cemetery property which would be free from taxation. Every dollar realized by the church, after paying the expenses of carrying on the cemetery as such, is for corporate profit.
    “ Judgment is now directed to be entered in favor of plaintiff and against defendant upon the verdict rendered in these several cases.”
    Defendant’s attorneys excepted and subsequently took this writ.
    
      The assignments of error specified the action of the court, 1, in declining to charge as requested; 2, in directing judgment for the plaintiff on the reserved point, quoting it; and, 3, in reserving, as a question of law, the point reserved, quoting it.
    
      Thos. C. Lazear, with him C. P. Orr, for plaintiff in error. — •
    Profit is defined by Webster to be “ acquisition beyond expenditure.” If the word “ profit,” in the Act, is synonymous with income or revenue, why did not our law-makers use it ? That they knew the difference between the words, appears from the proviso of the Act, which, although declared unconstitutional, can be considered for the purpose of discerning the meaning of the Legislature: “All other property, other than that which is in the actual use and occupation for the purpose aforesaid, and from which any income or revenue is derived, shall be subject to taxation.” If the word “ income ” be substituted for “ profit,” every cemetery in Pennsylvania which sells a lot, or otherwise procures money to pay its expenses, must be subject to taxation, even though no one receives any benefit.
    In connection with the word “ profit,” we contend that, by the words “private or corporate,” was intended a pecuniary benefit to a person as an individual or as a member of a corporate body.
    It is not a good reservation of a point to reserve on all the evidence. Ferguson v. Wright, 61 Pa. 258; Wilson v. Tuscarora, 25 Pa. 317; and Central Bank v. Earley, 113 Pa. 477 [Cf. s. c., 115 Pa. 359.—Ed.].
    There was nothing on the record to which we could except.
    
      Thos. D. Carnahcm, with whom was Wm. C. Moreland, for defendant in error.
    No exception was taken to the reservation at the trial. But suppose the question was not properly reserved. If there was nothing in the evidence upon which a point could have been reserved that would have entitled the defendant to a judgment non obstante veredicto, they are not entitled to relief from this court. Clark v. Wilder, 25 Pa. 314.
    The question here is not whether any profit has actually been made out of the burying ground, but whether the purpose of holding said ground is eventually to make a profit ? The charters of some cemetery corporations confine the application of the revenues to the maintenance and improvement of the grounds. That being the case, it is clear there could be no individual or corporate profit to the owner, for the term “ corporate profit ” means profit to the corporation and generally to the individuals composing it, but not necessarily to such individuals. That the money here may be put to some other use by the corporation than to cemetery purposes, places the case beyond the Act of 1874.
    Nov. 6, 1888.
   Per Curiam,

It appears very clearly from the evidence, that the cemetery in question is held for the profit of the church corporation; hence, it does not come within the exemption of the Act of May 14, 1874. It may be true that it is not at present profitable, and may never be so, but as it seems to have been bought as an investment for the church, and, as whatever revenues are derived from it are for the use of the church, and by it may be appropriated to any purpose which to the said church may seem fitting, it is obvious that it is not embraced within the statutory provision above mentioned.

The judgments are affirmed. J. C. S.  