
    Mount Oliver Borough v. First German Evangelical Lutheran St. Paul’s Congregation of East Birmingham, Appellant.
    
      Municipal liens — Cemeteries—Exemption—Act of June 4, 1901, sec. 5, P. L. 864-
    
    A cemetery is not within the provisions of sec. 5 of the Act of June 4, 1901, P. L. 364, which exempts from tax and municipal claims “places of burial not used or held for private or corporate profit,” when the cemetery is owned by an incorporated church congregation, which sells lots to its members and nonmembers and places the proceeds in its own treasury and uses them for church purposes; and this is the case although it appears that the church was still indebted for a considerable portion of the purchase money of the land and for the cost of improving it for burial purposes and there was evidence of an intention to purchase the land not as an investment, but only and solely as a place of burial.
    Argued April 10, 1912.
    Appeal, No. 30, April T., 1912, by defendant, from order of C. P. No. 1, Allegheny Co., Dec. T., 1905, No. 805, entering judgment for plaintiff non obstante veredicto in case of Mount Oliver Borough v. The First German Evangelical Lutheran St. Paul’s Congregation of East Birmingham.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Affirmed.
    Scire facias sur municipal claim for paving street.
    At the trial the jury returned a verdict for defendant.
    Subsequently on motion to enter judgment for plaintiff non obstante veredicto Macfarlane, J., filed the following opinion:
    There was no contradiction in the testimony offered in this case, nevertheless it was submitted to the jury who found it to be true. They were instructed that if the testimony were true the defendant did not hold or use its cemetery for private or corporate profit. Under the point asking for binding instructions and the motion for judgment non obstante we have presented the question .whether this cemetery is held or used for profit. The church, bought the ground for a cemetery for the purpose of burying the members of the church and congregation and their families, sales of lots being made to such persons, except in the case of poverty, when they were buried in a portion of the cemetery without cost. There have been a few instances of burial of persons who have been attendants but not members of the church. The property cost $18,000 and there was expended upon it in grading, etc., about $7,000. The purchase money has been paid, but the congregation is still in debt upon notes amounting to $16,000. The proceeds of sales of lots are not separate from the funds of the church, but are put into the church treasury, where they are blended with the church moneys. The interest on money borrowed for the pin-chase and expenses for maintenance exceed the revenue, and the cemetery is an expense to the church. Seventy-five per cent of the lots have been sold and the sale of the remainder will not bring the church out of debt. There never has been a balance of profit to the church; on the contrary, as has already been said, there is a loss, and it is plain that the cemetery can never pay for itself.
    The Act of June 4, 1901, P. L. 364, following the language of the constitution of 1874, exempts “places of burial not used or held for private or corporate profit” from tax claim or municipal claims. This claim is for the grading and curbing of the roadway, and that portion of the act was declared constitutional in Pittsburg v. Cemetery Association, 44 Pa. Superior Ct. 289.
    It was argued by counsel for the plaintiff that the cemetery is not within the exemption, under the authority of Brown v. Pittsburg, 1 Monaghan (Pa.), 8. There the facts were that the real estate was purchased by the church. It was paid for by notes given by the church, which are being paid off from time to time out of the sales of the lots, all of the proceeds of which go into the church treasury, and this is the sole revenue, and 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. The sales of lots are to members of the church and no one can be buried in the cemetery until a lot or grave has been purchased for him. This court (Stowe, P. J.) said, “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 the church corporation to escape taxation of its property not used for church purposes, by continually making, improvements, equaling its income, thus continually increasing its value. The result of the defendant’s position, if carried out, would be to allow all 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.” The Supreme Court said that the cemetery in question was held for profit, that while “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 revenues 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 fit, it is obvious that it is not embraced within the statutory provision above mentioned.” This decision was in 18.88, prior to the passage of this act, but that does not affect it. We can see no substantial difference between the two cases. The question is not whether profit has actually been made or can be made under the circumstances. The money received from the cemetery may be put to some other use by the corporation and it is not necessary that it .shpuld be expended upon tbe cemetery, as is tbe case in many cemetery corporations. We are not unmindful that it has been the policy of this commonwealth to treat burial grounds as sacred places, not subject to levy or sale either by individual creditors or by the taxing authorities, Uniondale Cemetery's Appeal, 227 Pa. 1, but we think the Brown case is controlling.
    We are of opinion, therefore, that judgment should be entered in favor of the plaintiff and against the defendant non obstante veredicto for the amount of its claim, and counsel may present an order containing the amount.
    
      Error assigned was in entering judgment for plaintiff non obstante veredicto.
    
      W. C. Schoyer, with him Lyon & Hunter, for appellant.
    
      Charles A. Poth, for appellee.
    October 14, 1912:
   Opinion by

Head, J.,

The plaintiff borough filed a municipal hen to recover the amount of benefits assessed by a board of viewers against the land of the defendant resulting from the grading and paving of a street on which the said land abutted. The defendant claims that the land, thus sought to be subjected to the lien, is a place “of burial not used or held for private or corporate profit,” and is therefore within the class exempted from such municipal claim under the provisions of the Act of June 4, 1901, P. L. 364, enacted in pursuance of art. IX, sec. 1, of the constitution. In determining the soundness of such claim for exemption, the statute creating an exempt class must be strictly construed against the claimant. If his right to the exemption be doubtful, the doubt must be resolved in favor of the state or the municipality in obedience to that fundamental principle of government which requires that the burdens of taxation be equally borne by all: Cooley on Taxation, 146; Academy of Fine Arts v. Philadelphia, 22 Pa. 496; Com. v. Cover, 29 Pa. Superior Ct. 409.

Interpreting the act of 1901 in the light of the principle stated, has the defendant brought itself clearly and plainly within the exempted class? The land covered by the hen is a tract of about eight acres purchased some years ago by the defendant church. The latter still owes a considerable portion of the purchase money. In addition to that it expended a large sum in grading or otherwise improving the property. Since its purchase the land has been continuously used as a burial ground for the sepulture chiefly of members of the congregation, although not exclusively so. Burial lots have been sold and the right of sepulture is confined to the owners of these lots. Down to the time of the trial it appeared that although the major portion of the property had thus been sold in burial lots, the proceeds of the said sales had not been sufficient to pay the cost of maintenance, the interest on the outstanding debt, or bring about a reduction of its principal. The proceeds of lot sales and of other revenue, if any, derived from this tract, were paid into the general treasury of the church where they mingled with its general funds and were used by it for church purposes. The church in turn, supplied from the same treasury the money necessary to maintain the cemetery property, to pay the interest on the outstanding debt and pay any portion of the principal, if any, that may have been paid. Do these facts necessarily lead to the conclusion that the property was a place “of burial not used or held for private or corporate profit?”

Certainly such conclusion cannot rest on the proposition that down to this time the revenue from the property has not exceeded in amount what it has cost to purchase and maintain it. So much seems to be conceded. But it is strenuously urged upon us that the evidence shows the property was not purchased as an investment but only and solely to be used as a place of burial. But it is to be observed that the status of this property, within or without the exempted class created by the statute, cannot be determined by the mental attitude of those who bought it. Their intention to use it only as a place of burial, if it then, existed, has in no way been stamped upon the property or the title by which it is held. No irrevocable dedication of the property to burial purposes has ever been made. No trust of any character has been seated upon its ownership. Its title does not reside in a corporation created solely and exclusively for the purpose of maintaining a place of burial and bound to devote its revenues to that purpose alone. The defendant congregation is the absolute unqualified owner in fee simple of the land. It may, for anything shown in this record, to-morrow double the prices at which it will sell burial lots and thus produce a corresponding change in its financial condition. It may, without the violation of any trust or the breach of any condition or covenant incident to its ownership, close* the property for burial purposes, and sell the land it still holds at any price it may be able to receive, and put the proceeds of such sale in its church treasury to be used, with other revenues of the church, for purposes wholly apart from the existing cemetery..

In the light of these considerations we feel forced to accept as sound the conclusion reached by the learned court below whose opinion, directing the entry of judgment non obstante veredicto in favor of the plaintiff, shows that he was unable to distinguish the present case in any material respect from that of Brown v. Pittsburg, 1 Mona. (Pa.) 8. The material facts of that case, as stated in the opinion of President Judge Stowe, approved by the Supreme Court, are practically identical with those exhibited by the present record. We are unable to find. any satisfactory distinction between that case and this that would enable us to escape the controlling force of that authority. For these reasons and those well stated in the opinion of the learned court below, we must hold that the defendant has not shown a case which clearly brings its property within the exempted class created by the act of 1901. The assignments of error are overruled.

Judgment affirmed.  