
    No. 18261
    The Board of Education of the City of Akron, Ohio, v. The Properties of The Akron Rural Cemetery.
    Error to the Court of Appeals of Summit County.
    313. CORPORATIONS — A cemetery corporation under special act comes under general law by exercising power to appropriate —No second appropriation — Power to take land exempted from appropriation — Holding land in excess of 50 acre statutory limitation.
   ALLEN, J.

1. Under Section 8736 of the General Code, a cemetery corporation incorporated in 1839 under, special act, which exercises the power of appropriation given to cemetery corporations under the general law, and not given under the special act, takes action in pursuance of Part II, Title 9, Division VI, Chapter VII, of the General Code, and thereby consents to be governed by the general law and to have and exercise all its franchises under the constitution of 1851 and the law passed in pursuance thereof and not otherwise.

2. Property already appropriated in the proper exercise of the power of eminent domain, cannot be taken for another public use which will wholly defeat or supersede the former use unless power to make such second appropriation be expressly granted. Railroad v. Belle Center, 48 Ohio St., 273, approved and followed.

3. When power to make an appropriation is granted only in general terms, land exempt from appropriation cannot be taken under such general power. Power to take land exempted from appropriation must be expressly granted in order to authorize such appropriation.

4. A cemetery corporation incorporated in 1839 under a special act which provided that the said corporation should have “the power to purchase and hold land for cemetery purposes not exceeding fifty acres,” but which did not grant to the said corporation the power of appropriating land, appropriated land in excess of the fifty acre limitation and held the same for cemetery purposes. A Board ofEd-ucation instituted proceedings under Section 7624, General Code, to appropriate part of the said land held by the cemetery corporation in excess of the 50 acre limitation. Held:

That the cemetery corporation was entitled under General Code 10093 to hold land in excess of fifty acres but not in excess of the statutory limitation, and to secure an injunction preventing the Board of Education from appropriating any part of said land.

Judgment affirmed.

Marshall, C. J., Jones, Matthias and Day, JJ., concur. Wanamaker, J., not participating.  