
    The Canton Cemetery Assn. v. Slayman.
    
      Cemetery associations — Malicious prosecution —Liability—Execution— Property exempt, when.
    
    1. Under the provisions of Section 10093 et seq., General Code, the legislature of this state has assumed specific control over certain powers exercised by cemetery associations organized thereunder. By various sections of the act it has provided for the exemption of specific property from execution. Under the maxim expressio unius, exclusio alterius, the necessary implication arises that other property is not exempt from execution, and that an action may lie against such association and judgment satisfied by execution against non-exempted property.
    2. In this state an action for malicious prosecution can be.maintained against an association organized under the sections named.
    (No. 15796
    Decided December 10, 1918.)
    Error 'to the Court of Appeals of Stark county.
    Defendant in error, Sarah F. Slayman, sued the Cemetery Association for malicious prosecution, alleging in her petition that the association through James Dewel, its sexton, and J. A. Reed, its secretary and superintendent, without reasonable or probable cause, maliciously charged the plaintiff with having committed the offense of unlawfully removing flowers from the cemetery; that pursuant to said charge- she was arrested and imprisoned, and thereafter acquitted in the criminal court of Canton. Admitting her arrest and acquittal by the criminal court, but otherwise denying generally the allegations of the petition, the defendant pleaded as an avoidance that it was a corporation organized for cemetery purposes, not for profit, and that it was without capital stock; that it was a public and charitable corporation engaged in maintaining a cemetery as a place for the burial of the dead.
    Plaintiff recovered a verdict, which was affirmed by the court of appeals. Error is now prosecuted to this court.
    
      Mr. Lorin C. Wise and Messrs. Amerman & Mills, for plaintiff in error.
    
      Mr. Homer V. Briggle and Messrs. Welty & Burt, for defendant in error.
   Jones, J.

There is a wide divergence of view in the various jurisdictions of this country as to the liability of charitable organizations, to which it is not necessary to allude. Whatever may be the principle adopted in this and other states as to the liability of such associations in general, it is evident that here in Ohio the legislature has taken cognizance of this particular association, and has, by strong implication, recognized its liability to suit, in the legislation contained in the chapter affecting cemetery associations of the character here involved, whether purely charitable or otherwise. This legislation provides for the organization of such associations, for the acquisition and location of burial grounds, for the application of income and receipts, and for specific exemptions from execution.

Section 10093, General Code, provides: “A company or association incorporated for cemetery purposes may appropriate or otherwise acquire and hold, not exceeding one hundred 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 which 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.”

When, therefore, the legislature has thus provided, in this or other sections of the General Code, for specific exemptions of one or more classes of property, it thereby impliedly excludes any other property from exemption. The maxim expressio unius, exclusio alterius applies. The fact that the legislature has provided when exemptions may or may not be had from execution indisputably shows that it did not intend to release these associations wholly from the payment of their civil obligations.

Counsel for plaintiff in error contend that Section 10109, General Code, provides a limitation as to the use which can be made of the funds of the cemetery association. The latter part of this section is as follows: “No part of the proceeds of land sold, or of the funds of such a company or association, shall ever be divided among its stockholders or lot-owners. All its funds must be used exclusively for the purposes of the company or association, as above herein specified, or invested in a fund the income of which shall be so used and appropriated.”

This section was only intended to apply to the application of the funds of the association by the officers entrusted with the control thereof and does not in terms exempt any of its property from civil liability as does the section first above quoted. In the case of Donnelly v. Boston Catholic Cemetery Assn., 146 Mass., 163, 166, a similar provision to the Ohio statute last quoted was found in the Massachusetts statute. In that case Judge Holmes declined to hold that the provision of the Massachusetts statute exempted the property of said association from ordinary civil liabilities.

We hold, therefore, that when the legislature of Ohio assumed to exercise control over the manner of acquisition and the safeguarding of the property of these associations it impliedly recognized their civil liability for a tortious act of the character here involved by providing the specific exemptions from execution found in the chapter relating to cemetery associations. The judgments of. the lower courts are affirmed.

Judgments affirmed.

Nichols, C. J., Wanamaker, Newman, Matthias and Donahue, JJ., concur.

Johnson, J., dissents.  