
    The People ex rel. The Oak Hill Cemetery Ass’n, App’lt, v. Luther A. Pratt et al., Ass'rs, Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed December 1, 1891.)
    
    1. Taxes—Cemeteries.
    Relator was incorporated under Laws of 1847, chapter 133, and was authorized to hold lands exclusively for cemetery purposes. The common council passed an ordinance amending a previous ordinance prohibiting the burial of the dead in the city except in certain cemeteries named so as to include the relator, but before any action was taken to prepare the lands for such purposes, the last ordinance was revoked, and the original one re-enacted. Held, that relator’s land in the city under the act of 1847, § 10, was exempt from taxation, although, so long as the ordinance remains in force as at present framed, no burials could be made therein.
    Appeal from jiidgment of the supreme court, general term, ■fifth department, affirming judgment of special term, decreeing that the lands of relator were subject to assessment for general •city taxes.
    
      Martin W. Cooke, for app’lt; C. D. Kiehl and Geo. F. Danforth, for resp’ts.
    
      
       Reversing 38 St. Rep., 598.
    
   Earl, J.

The relator, the Oak Hill Cemetery Association, complains that its land, situated in the city of Rochester, was illegally assessed in the year 1890, and it has instituted this proceeding to procure the assessment to be stricken from the assessment roll as illegal and unauthorized. It was incorporated under the act, chapter 133, of the Laws of 1847, on the 16th day of March, 1889. At that time there was an ordinance of the city of Rochester, passed in 1887, prohibiting the burial of dead human bodies within the city limits, except in certain cemeteries specified. On the 19th day of March, 1889, that ordinance was amended so as to authorize the burial of the dead in the relator’s cemetery, and thereafter, and while that ordinance was in force, it took a conveyance of fifty-four and one-half acres of land situated within the city limits. On the 2d day of May, 1889, the ordinance was again amended so as to prohibit the burial of the dead in any cemetery within the city limits, except in certain cemeteries named, among which was not the relator’s, and thus thereafter, assuming the validity of the ordinance, no burials could be made in the cemetery.

We must assume that no body has been buried in¡¡this cemetery, and the important question for us to determine is whether'the relator’s land, under the act of 1847, is exempt from taxation, although, so long as the ordinance remains in force as at present framed, no burials can be made therein.

We have no doubt that the relator was properly incorporated. It was not obliged to obtain the consent of the city of Rochester to its incorporation, nor, as has been contended on the part of the defendants, was it obliged to obtain the consent of the supervisors of the county of Monroe. The acts, chapter 280 of the Laws of 1852, chapter 238 of the Laws of 1854, chapter 164 of the Laws of 1871, and chapter 389 of the Laws of 1889, to which our attention has been called, do not relate to cemeteries in the county of Monroe, and relate only to the counties mentioned in those acts.

We have no doubt that the common council had power to pass the ordinance prohibiting the burial of the dead in this cemetery. Under the charter of the city (Laws of 1880, chapter 14, § 40), it is provided that the common council shall have power to “ make, modify and repeal such ordinances, by-laws and regulations as it shall deem reasonable within the said city for the following purposes ; ” and among the purposes specified is “to regulate the burial of the dead.” Under the power to regulate, the common council could prohibit the burial of the dead within the city limits. Cronin v. The People, 82 N. Y., 318. This ordinance is a police regulation which the legislature could authorize the common council to pass. Brick Church v. The Mayor, 5 Cowen, 538; Coates v. The Mayor, 7 id., 585; Matter of Ryers, 72 N. Y., 1.

It is immaterial that at the time the relator took the conveyance of its land it was lawful to use it for cemetery purposes and to bury the dead therein. The power possessed by the common council to regulate the burial of the dead is a continuing power and it may be exercised in its discretion from time to time as the public health and welfare may require.

So, we have no doubt that so long as the ordinance remains in force no dead body can be buried in this cemetery, and yet we reach the conclusion that its land cannot be taxed under the law of 1847. Section one of that act provides that any number of persons residing in this state, not less than seven, who shall desire to form an association for the purpose “ of procuring and holding lands to be used exclusively for a cemetery, or place for the burial of the dead,” may form a corporation as provided in that and the two following sections. Section four provides that any association incorporated under the act may take by purchase or devise, and hold within the county in which the certificate of its incorporation is recorded not exceeding two hundred acres of land, to be held and occupied exclusively as a cemetery for the burial of the dead, and further provides that “such land, or such parts thereof as may from time to time be required for that purpose, shall be surveyed and subdivided into lots or plots of such size as the trustees may direct, with such avenues, paths, alleys and walks as the trustees deem proper; and a map or maps of such surveys shall be filed in the clerk’s office of the county in which the land shall be situated.” These surveys and sub-divisions and maps thus authorized may be made from time to time, and all this is to be done before cemetery lots can be sold, and the lots are to be sold according to these surveys and maps. The section also provides that any association incorporated under the act may hold personal property not to exceed $5,000 besides what may arise from the sale of lots. Section seven, as amended by the act, chapter 108 of the Laws of 1879, provides that, “ all lots or plots of ground designated on the maps filed as aforesaid, and numbered as separate lots by the corporation, shall be indivisible, but may be held and owned in undivided shares. * * * One half, at least, of the proceeds of all sales of lots or plots shall be first appropriated to the payment of the purchase money of the lands acquired by the association until the whole purchase money shall be paid,' and the residue thereof to preserving, improving and embellishing the said cemetery grounds and the avénues or roads leading thereto, and to defraying the incidental expenses of the cemetery establishment. And after the payment of the purchase money, and the debts contracted therefor, and for surveying and laying out the land, the proceeds of all future sales shall be applied to the improvement, embellishment and preservation of such cemetery, and for incidental expenses and to no other purpose or object unless expressly authorized by law,” etc. Section ten provides that “ the cemetery lands and property of any association formed pursuant to this act shall be exempt from all public taxes, rates and assessments, and shall not be liable to be sold on execution, or be "applied in payment of debts due from any individual proprietor.” Section eleven provides that, “ whenever the said land shall be laid off into lots or plots or any of them shall be transferred to individual holders, and after there shall have been an interment in a lot or plot so transferred, such lot or plot from the time of such firsl; interment shall be forever thereafter inalienable, and shall, upon the death of the holder or proprietor thereof, descend to the heirs at law of such holder or proprietor and to their heirs at law forever.”

It is thus seen, by this brief review of the provisions of the act, that the land of the relator is held exclusively for cemetery purposes, and that it cannot be devoted to or used for any other purpose. It has no power to sell any of its land except to persons who desire it for burial purposes, and all of its land, the moment it acquires it, and before a dead body is buried therein, is absolutely exempt from all taxation. The cemetery land of such a corporation not only, but all its property, is thus exempt So long as Oak Hill cemetery exists as a corporation, it must hold its property exclusively for cemetery purposes, and while burials cannot now be made therein, the ordinance prohibiting them may be repealed or modified at any time so as to allow them. There is no provision in the statute that its land shall be exempt from taxation only so long as burials are authorized to be made therein. The exemption is absolute.

There is nothing in the act, chapter 708 of the Laws of 1869, or chapter 310 of the Laws of 1879, which affects the exemption from taxation conferred by § 10 of the act of 1847. By the act of 1869/ § 10 is amended only in reference to the rights of individual proprietors of lots, and it in no way changes the exemption of the corporation from taxation as provided in § 10 of the act of 1847. The act of 1879 is not an amendment of the act of 1847, and does not relate to cemeteries owned by corporations organized under that act It relates to other cemeteries not established under that act. This fully appears from § 2, which is as follows: “ Whenever any such land shall cease to be used for cemetery purposes, any judgment, tax or assessment which, but for the provisions of this act, would have been levied, collected or imposed, shall thereupon forthwith, together with interest thereon, become and be a lien and charge upon such land, and collectible out of the same.” That section plainly has no reference to a corporation organized under the act of 1847, for the reason that independently of the act of 1879 no tax could be levied upon the lands of such a corporation, the exemption from taxation being due to the act of 1847, and not to that of 1879. The purpose of that act was to secure to cemeteries not established under the act of 1847 exemption from taxation and other immunities which they did not before possess.

It cannot be well contended that the cemetery land exempted from taxation under the act of 1847 is only such portions of the land purchased for cemetery purposes as are surveyed, mapped and laid out into lots under § 4. The purpose of those provisions is the convenience of sale, the security of titles and the benefit and protection of lot owners. We have no reason to suppose from any language used in the act that it was the intention of the legislature that any portion of the cemetery land not laid out into lots, but which must nevertheless be held exclusively for cemetery purposes, should be subject to taxation.

The question may be asked, what is to become of the land of this corporation if it cannot be used under the ordinance of the city for cemetery purposes, and if the corporation cannot devote it to any other purpose ? The answer is that unless the corporation can secure a repeal of the ordinance it can do none of the business for which it is organized, and it may apply for a voluntary dissolution, and then dispose of its land in the mode provided in the case of the dissolution of corporations. In case it should refuse to take proceedings for a voluntary dissolution, the attorney-general, in behalf of the people, may, after it has suspended its ordinary and lawful business for a year, institute an action for its dissolution. And, in any event, the legislature may provide by an amendment of the act of 1847 for the taxation of cemetery lands thus situated. Until the legislature shall take action in that, direction, we must follow the plain language of the statute as it now is. The common council of the city cannot take away from this corporation its exemption from taxation by simply prohibiting the burial of the dead in its land. All its land and property are exempt from taxation, and we must give force and effect to the statute.

The orders of the general and special terms should be reversed, and the assessment upon the relator’s property ordered to be vacated, and stricken from the assessment roll, with costs to the appellant in all the courts.

All concur.  