Cave Hill Cemetery Co. v. Scent ( 1961 )

WILLIAMS, Judge

(dissenting).

When Cave Hill Cemetery Company was incorporated by the Legislature in 1848 the City of Louisville was given the power to convey 50 acres to the Cemetery Company for the purpose of a rural cemetery. The mayor and city council were authorized to fill vacancies on the Board of Managers. A portion of the proceeds of the sale of lots was to be used to refund moneys advanced by the City of Louisville for improvement of grounds and the surplus when otherwise not appropriated was to be paid into the city treasury as a permanent improvement fund. In 1882, the Legislature amended the charter of Cave Hill Cemetery Company providing that the managers be elected by the lot owners and vacancies filled by the Board of Managers. Also the requirement that the surplus of the sale of lots be paid into the city treasury was repealed. By separate Act that same year the Legislature incorporated Cave Hill Investment Company and gave it authority to receive any income or other funds for the Cemetery Company. The funds received were to be invested and held for the improvement of the cemetery. Thus beginning in 1882 Cave Hill Cemetery Company ceased to have any connection with the City of Louisville and became by legislative act simply a non-stock, non-profit corporation.

The majority opinion stresses the fact that the legislative Act of 1848 created the Cemetery Company as “a body politic and corporate,” and, consequently, the corporation is said to be a public corporation as distinguished from a private corporation. That question was decided many years ago to the contrary in Commonwealth v. Lexington Cemetery Company, 114 Ky. 165, 70 S.W. 280, 281. The Lexington Cemetery Company was incorporated by the Legislature in 1848, the same year Cave Hill Cemetery Company was incorporated. The Act incorporating Lexington Cemetery Company also specifically stated that it was made “a body politic and corporate.” This Court said in the above-cited case:

“ * * * Whilst we fully appreciate and approve the well-nigh universal sentiment that the graves of the dead should be decently and tenderly cared for, there can be no escape from the conclusion that appellee is not an institution of purely public charity, as contemplated by the constitution and statute. And whilst their place of burial is expressly exempted, we are of the opinion that the money and notes held and owned by them are liable to taxation.”

Section 170 of the Kentucky Constitution provides certain specific exemptions from taxation. Places of burial not held for private or corporate profit are exempt. Thus Cave Hill Cemetery Company grounds are not taxed. The two funds in question here should be taxable under authority of the Lexington Cemetery case. The only way in which they might be exempt is to declare them to be “public property used for public purposes,” which is exempt under the Constitution, section 170. The Cave Hill Cemetery Company is not a public corporation. It is controlled and managed by those individuals who have purchased lots. Furthermore, the sale of lots and maintenance of cemetery grounds is not a public purpose per se. The funds are neither public property nor are they used for public purposes. Most especially is this true of the Endowment Fund, which is derived from donations of individuals for the purpose of maintaining and beautifying specific lots. It is well settled that tax exemptions are strictly construed against the one claiming the exemption. The majority opinion has the effect of construing this tax exemption most favorably to the one claiming it.

For the above reasons I respectfully dissent from the majority opinion. Chief Justice BIRD and Judge PALMORE join me in this dissent.