State ex rel. Willow Monument Works, Inc. v. Mountain Grove Cemetery Ass'n

Loiselle, J.

The defendant Mountain Grove Cemetery Association, hereinafter referred to as Mountain Grove, is a cemetery open to the public, located on North Avenue, the Bridgeport-Fairfield town line. It was organized in 1849 as a private enterprise for cemetery purposes and in 1889, by special act, it became a nonstock corporation organized and existing for the purpose of a cemetery. It now has in excess of 125 acres of land. Mountain Grove has on its premises one of the two crematories existing in Connecticut. The crematory, opened pursuant to No. 85 of the 1949 Special Acts, serves the public at large. In 1967, Mountain drove commenced, and to this day continues, to sell bronze markers for profit to its cemetery lot holders. It receives its gross income from various sources including the sale of lots, charges for digging graves, tent fees, income from securities, crematory income, sale of crypts in its mausoleum, sale of space in the columbarium, sale of bronze urns for crematory remains and face plates in the mausoleum, in addition to the sale of bronze markers. Except for crematory services, Mountain drove’s sales and services are limited to lot holders in its cemetery. It alone supplies canopies or tents for funerals and does all necessary foundations on installations of markers and stones in order to avoid damage and to ensure proper maintenance.

The plaintiff in both cases, Willow Monument Works, Inc., hereinafter referred to as Willow Monument, brought these actions for forfeiture of Mountain drove’s charter and for an injunction to restrain Mountain drove from selling bronze markers to its lot holders. Willow Monument is located across North Avenue from Mountain drove. It has been in business since 1942. Of the total markers, either bronze or stone, sold and installed by anyone at Mountain drove, including monument dealers and Mountain drove itself, Willow Monument does about 40 to 45 percent of this business. Since 1967, out of 135 bronze markers installed at Mountain drove, 13 were sold by Willow Monument, 4 by other private marker dealers, and 118 by Mountain drove. Mountain drove does not solicit or advertise the sale of bronze markers other than at the cemetery itself. A lot holder is told that Mountain G-rove has the bronze markers or that they may be bought elsewhere. No extra charge is made to lot holders who purchase bronze markers elsewhere, and no representation is made that there is any advantage in buying a bronze marker from Mountain Grove over buying one from another source. The only requirement in Mountain Grove’s regulations concerning bronze markers is the dimensions. The proceeds of the sale of bronze markers go into a general fund which is used exclusively for the maintenance of the cemetery. Mountain Grove attempts to make a profit on all its services and operations so as to pay for the cost of maintaining the cemetery and to establish a perpetual fund which will be adequate to provide for the maintenance of the cemetery after it is full and derives no further income from the sale of grave spaces.

In its combined appeal from the judgment rendered for Mountain Grove in each case, Willow Monument claims that inasmuch as Mountain Grove is a public cemetery it is a charitable organization devoted to a charitable public use and that by virtue of the statute of charitable trusts; General Statutes § 45-79; and the statute of charitable uses; General Statutes § 47-2 j¹ lands and property owned by it may not be used for commercial purposes unless reasonably necessary to continue that charitable purpose. It is conceded that the sale of bronze markers for a profit is not reasonably necessary to the operation of the cemetery.

Section 2 of part 1 of chapter 6 of title 18 of the General Statutes (Rev. 1875)² reads as follows: “All estates that have been or shall be granted for the maintenance of the ministry of the gospel, or of schools of learning, or for the relief of the poor, or for any other public and charitable use, shall forever remain to the uses to which they have been or shall be granted, according to the true intent and meaning of the grantor, and to no other use whatever.” The marginal note designates this statute as “ [1] ands given to charitable uses.”

In 1884, the case of Coit v. Comstock, 51 Conn. 352, 386, held that “bequests for the purpose of keeping burial lots or cemeteries in good order or repair, are not given in charity, and, therefore, are not protected by the statute of charitable uses.” This decision indicates the rule in this state that cemeteries were not charitable operations.

In 1885, apparently as a result of the case of Coit v. Comstock, supra, by Public Acts, chapter 36, the General Assembly enacted the following: “All estates that have been or shall be granted for the preservation, care and maintenance of any cemetery, cemetery lot, or of the monuments thereon, shall forever remain to the uses to which they have been or shall be granted, according to the true intent and meaning of the grantor, and to no other use whatever.” This act was entitled “An Act relating to Charitable Uses.” The marginal note states: “Estate granted for care of cemetery or monument, to remain to the use for which granted.” Although the title of the act referred to charitable uses, this act made no distinction between public and private cemeteries; FitzGerald v. East Lawn Cemetery, Inc., 126 Conn. 286, 291, 10 A.2d 683; and “did not purport to, nor did it, denominate, as charitable, such a clearly noncharitable bequest.” Clark v. Portland Burying Ground Assn., 151 Conn. 527, 532-33, 200 A.2d 468; cf. Bronson v. Strouse, 57 Conn. 147, 149, 17 A. 699.

In the revision of the General Statutes of 1888, the revisers combined the 1885 act with the statute of charitable uses so that it read as it does in the present General Statutes § 47-2 except for slight, inconsequential wording. Eev. 1888 § 2951. This combining was probably made because of the misleading title given to the 1885 act. Clark v. Portland Burying Ground Assn., supra, 533. “ ‘There is a presumption that a general revision of the statutes does not change the law’; Miller v. Phoenix State Bank & Trust Co., 138 Conn. 12, 16, 81 A.2d 444; and in the absence of anything evincing a contrary intent, the meaning and the effect of the statute were unchanged. State ex rel. Rundbaken v. Watrous, 135 Conn. 638, 648, 68 A.2d 289; Bassett v. City Bank & Trust Co., 115 Conn. 393, 400, 161 A. 852.” Southington v. Francis, 159 Conn. 64, 70, 266 A.2d 387. It is apparent from this history that the provision in § 47-2 concerning grants, devises or bequests to a cemetery prevents such a grant, devise or bequest from being invalid under the rule against perpetuities but does not make such a transfer a charitable one. Nor does the statute either directly or by implication make the operation of a cemetery a charitable use. In Weed v. Scofield, 73 Conn. 670, 678-79, 49 A. 22, decided a considerable time after the enactment of the 1885 act and its being combined with the statute of charitable uses by the revision of 1888, it was unequivocally stated that a cemetery association “is neither a religious nor a benevolent society or institution.”

Willow Monument points out that a cemetery has the right of eminent domain and is exempt from property and succession taxes as are all charitable uses. The right of eminent domain is specifically given to the owner of any cemetery by virtue of General Statutes § 19-147 and § 48-18. The fact that the right to acquire land as a public burying ground for public use is granted to a cemetery does not make it a charitable use any more than a right of eminent domain granted to a public utility makes it a charitable use. Property held for cemetery use is specifically exempt from taxation under General Statutes § 12-81 (11). This is separate and distinct from the tax exemption of property used for charitable purposes under §12-81(7). According to the facts found and conclusions reached by the court, Mountain Grove is exempt from succession taxes. Willow Monument claims that, as no specific statute grants such exemption, the cemetery must come under the provision for charitable organizations in General Statutes § 12-347. Although there is no specific exemption for cemeteries generally, § 12-347 does make exemption for a trust for the care of any cemetery lot. And it must be noted that gifts for charitable purposes do not lose their charitable nature because a cemetery may be involved. See FitzGerald v. East Lawn Cemetery, Inc., 126 Conn. 286, 10 A.2d 683, where a bequest to a trust to build and maintain a chapel in a private cemetery open to the public, such as Mountain Grove, was held not to be a bequest to the cemetery but for a chapel to be erected in the cemetery which sufficiently served the public interest so as to be a bequest for a charitable use. Id., 290, 291.

Willow Monument seems to argue that if the use is public it necessarily becomes a charitable use.³ It also relies upon the language in such cases as FitzGerald v. East Lawn Cemetery, Inc., supra; Mitchell v. Reeves, 123 Conn. 549, 196 A. 785; Corbin v. Baldwin, 92 Conn. 99, 101 A. 834; Connecticut College for Women v. Calvert, 87 Conn. 421, 88 A. 633; and Application of St. Bernard Cemetery Assn., 58 Conn. 91, 19 A. 514. These cases discuss the public use aspect of cemeteries and do compare them with charitable organizations or associations and in some instances, by dicta, do consider cemeteries together with charities regarding tax exemption and eminent domain issues. It is unquestioned that Mountain Grove does maintain a public cemetery. This is determined not by ownership but by public use. Barnes v. New Haven, 140 Conn. 8, 15, 98 A.2d 523; 14 Am. Jur. 2d, Cemeteries, § 2. A public use will authorize, in a constitutional sense, special legislative treatment such as the right of eminent domain and tax exemptions but that use does not render the use a charitable one or the recipient a charitable entity. See Connecticut Light & Power Co. v. Costello, 161 Conn. 430, 288 A.2d 415 (eminent domain for land to erect transmission lines); Northeastern Gas Transmission Co. v. Collins, 138 Conn. 582, 87 A.2d 139 (eminent domain of land for private pipeline); Olmstead v. Camp, 33 Conn. 532 (eminent domain of flowage lights for private company).

It is not universally held that cemeteries are not charitable in nature; see Frank v. Clover Leaf Park Cemetery Assn., 29 N.J. 193, 148 A.2d 488;⁴ Davie v. Rochester Cemetery Assn., 91 N.H. 494, 495, 23 A.2d 377; however, both our case law and the legislative history of the statute of charitable uses make it clear that in this state the operation of cemeteries is not denominated or considered charitable. Although, as indicated above, some of our cases consider cemeteries and charitable organizations in the same context when discussing the issue of public use, we find nothing in them to justify a deviation from the holding in Weed v. Scofield, 73 Conn. 670, 49 A. 22, that a cemetery association is “neither a religious nor a benevolent⁵ society or institution.”

In 1969, the charter of Mountain Grove was amended by the General Assembly. Included in the amendment was the provision that the corporation shall have the right “to buy and sell such articles of personal property as may be necessary or proper for the operation and maintenance of the cemetery.” 34 Spec. Acts 23, No. 17 § 3. Willow Monument claims that as the sales of bronze markers are not necessary for the operation and maintenance of the cemetery, Mountain Grove should be enjoined from selling them. Whether such sales must be classed as necessary if Mountain Grove were a charitable institution need not be considered. The charter does give Mountain Grove the right to sell personal property if “proper” to the operation and maintenance of the cemetery.

There are divergent viewpoints found in cases in other states on the general subject of sales of markers and monuments by cemetery associations as being a proper function of a cemetery. In Frank v. Clover Leaf Park Cemetery Assn., supra, the New Jersey Supreme Court held that under New Jersey law a cemetery was a charitable trust and its managers were trustees in charge of the operation of a quasi-public institution and that sale of markers was not necessary nor suitable or “proper” to the operation or maintenance of a cemetery. See also People ex rel. J. H. Anderson Monument Co. v. Rosehill Cemetery Co., 3 Ill. 2d 592, 122 N.E.2d 283. On the other hand, in Wilmington Memorial Co. v. Silverbrook Cemetery Co., 297 A.2d 378, (Del.), it was held that the sale of bronze markers was a reasonably related activity to the operation of a cemetery. See also Daily Monument Co. v. Crown Hill Cemetery Assn., 114 Ohio App. 143, 176 N.E.2d 268. In Gingrich v. Blue Ridge Memorial Gardens, 444 Pa. 420, 424, 282 A.2d 315, it was held that “ [m] arkers and monuments are integral parts of cemeteries and essential to the character and type of cemeteries maintained. That entity which operates and maintains a cemetery — whether it be a corporate body or a religious charitable trust— engages in the sale of markers and monuments to lot owners — on a voluntary rather that a compulsory basis — clearly has the incidental and implied power to do so.” No attempt is made to cite and discuss all the cases representing both viewpoints.

The Mountain Grove charter as amended clearly indicates the legislative intent to grant to the association the power to engage in sales of personal property related to the operation of a cemetery. “Burial of and memorializing the dead are certainly related activities. As the court said in Clagett v. Vestry of Rock Creek Parish, . . . 241 F. Supp. 950 [(D.D.C.)]: ‘grave and marker . . . are so intimately related to the extent that the suggestion of one suggests the other.’ ” Wilmington Memorial Co. v. Silverbrook Cemetery Co., 287 A.2d 405, 408 (Del. Ch.). In view of the broad language of the charter relating to the sale of personal property, the close relationship of a grave marker to a grave, and the method of sales to lot holders alone without discrimination to other vendors, the sale of bronze markers by Mountain Grove to its lot holders is a proper exercise of its charter powers. The trial court found that the proceeds of the sales of bronze markers go into the general fund of the cemetery and are devoted solely to cemetery purposes. It also concluded that the sale of bronze markers is a proper part of the operation of the cemetery. The subordinate facts found support the conclusion made.

Willow Monument also claims in the second ease that the sale of bronze markers by a cemetery is illegal as being against public policy and relies principally on Frank v. Clover Leaf Park Cemetery Assn., 29 N.J. 193, 148 A.2d 488. The court found that Mountain Grove sells bronze markers only to its lot holders; it does not advertise or solicit; lot holders are not required to buy bronze markers from it and no representation is made that there is any advantage to a lot holder in buying from it; and no extra charge results to lot holders who purchase bronze markers from dealers. In Frank v. Clover Leaf Park Cemetery Assn., supra, the cemetery had no charter power to sell markers; it discriminated against lot holders who purchased from other dealers; and, under New Jersey law, a cemetery is a “charitable trust.” A comparison of the facts found by the court in the present case to those in the Frank case makes it clear that the latter case is not controlling. It is recognized that other jurisdictions have split on this issue.⁶ Since the legislature has seen fit to authorize the sale of personal property by Mountain Grove, there is no public policy established by the state which would render the sale of bronze markers by Mountain Grove illegal; nor does our case law indicate otherwise. The sale of bronze markers by Mountain Grove does not violate the public policy of this state.

It is argued that commercial activity by a cemetery with tax exemptions does injury to the tax base of local communities. The other side of the coin is that none of the profit is distributed to anyone but, on the contrary, it is used for maintenance and for augmentation of the perpetual care fund, so that when all of the burial lots have been sold there will be resources to maintain the cemetery rather than have the cemetery become a public charge; General Statutes § 19-159; and thereby to relieve the local government of a financial burden it would otherwise be required to carry.

Because of the conclusions reached in the second case that Mountain Grove was not exceeding its charter powers, it is unnecessary to determine the propriety of the quo warranto action in the first case for forfeiture of Mountain Grove’s charter for exceeding its powers.

There is no error.

In this opinion House, C. J., MacDonald and Longo, Js., concurred.

1 “[General Statutes] Sec. 47-2. charitable uses. All estates granted for the maintenance of the ministry of the gospel, or of schools of learning, or for the relief of the poor, or for the preservation, care and maintenance of any cemetery, cemetery lot or monuments thereon, or for any other public and charitable use, shall forever remain to the uses to which they were granted, according to the true intent and meaning of the grantor, and to no other use whatever.”

2 This statute was passed in 1684, but as it did not appear in the printed statutes before the revision of 1702, it is generally called the statute of “1702.”

3 See Jones, History of the Law of Charity 1532-1827, c. 8, pp. 121-27. Public uses were ipso facto deemed charitable in 18th century English eases dealing with the definition of charity under the statute of Elizabeth, but the argument that “upon the authorities almost everything, from which the public derive benefit, may be considered a charity” was conclusively rejected in Morice v. Bishop, 9 Ves. 399, 10 Ves. 522, a case considered with approval in Adye v. Smith, 44 Conn. 60.

4 Under New Jersey law a cemetery organized under the Bural Cemetery Associations Act, N.J. S.A. 8:1-1 et seq., is required to function as a quasi-public charitable trust, but New Jersey law does not treat cemeteries as equatable with charitable institutions for purposes of inheritance tax exemption; In re Kuebler, 106 N.J. Super. 13, 254 A.2d 115; or charitable immunity. Lawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326, 266 A.2d 569.

5 While it is true that there may be a benevolent purpose which is not charitable, in the legal sense of the term, the converse is not equally true. “[T]here is no charitable purpose which is not also a benevolent purpose.” Adye v. Smith, 44 Conn. 60, 71.

6 The authorities appear to be unequally divided. Jurisdictions which would seem to allow the complained-of activity are: Clagett v. Vestry of Rock Creek Parish, 241 F. Sup. 950 (D.D.C.); Wing v. Forest Lawn Cemetery Assn., 15 Cal. 2d 472, 101 P.2d 1099; Gasser v. Crown Hill Cemetery Assn., 103 Colo. 175, 84 P.2d 67; Wilmington Memorial Co. v. Silverbrook Cemetery Co., 297 A.2d 378 (Del.); People ex rel. Guettler v. Mount Olive Cemetery Assn., 26 Ill. 2d 156, 186 N.E.2d 39; State ex rel. Benson v. Lakewood Cemetery, 197 Minn. 501, 267 N.W. 510; Davisson v. Mount Moriah Cemetery Assn., 87 Mont. 459, 288 P. 612; Daily Monument Co. v. Crown Bill Cemetery Assn., 114 Ohio App. 143, 176 N.E.2d 268; Schaefer v. West Lawn Memorial Cemetery, 222 Ore. 241, 352 P.2d 744; Gingrich v. Blue Ridge Memorial Gardens, 444 Pa. 420, 282 A.2d 315. Contra: People ex rel. J. H. Anderson Monument Co. v. Rosehill Cemetery Co., 3 Ill. 2d 592, 122 N.E.2d 283; Terwilliger v. Graceland Memorial Park Assn., 35 N.J. 259, 173 A.2d 33.