Over-Look Cemetery, Inc. v. Rockingham County

160 S.E.2d 293 (1968) 273 N.C. 467

OVER-LOOK CEMETERY, INC.
v.
ROCKINGHAM COUNTY.

No. 767.

Supreme Court of North Carolina.

April 10, 1968.

Fagg, Fagg & Nooe, Leaksville, for plaintiff appellant.

McMichael & Griffin and David M. Blackwell, Reidsville, for defendant appellee.

BOBBITT, Justice.

G.S. § 105-296, in pertinent part, provides: "The following real property, and no other, shall be exempted from taxation: * * * (2) Real property, tombs, vaults, and mausoleums set apart for burial purposes, except such as are owned and held for purposes of sale or rental. * * *" Unless exempted by this statute, plaintiff's real property is subject to ad valorem taxation by defendant.

"Statutes exempting specific property from taxation because of the purposes for which such property is held and used, are and should be construed strictly, when there is room for construction, against exemption and in favor of taxation." Harrison v. Guilford County, 218 N.C. 718, 721, 12 S.E.2d 269, 272, and cases cited. However, the rule of strict construction does not require that the statute "be stintingly or even narrowly construed." State v. Whitehurst, 212 N.C. 300, 303, 193 S.E. 657, 659, 113 A.L.R. 740. In Southeastern Baptist Theological Seminary, Inc. v. Wake County, 251 N.C. 775, 782, 112 S.E.2d 528, 533, Winborne, C. J., referring to G.S. § 105-296(4), said: "The words used in the statute must be given their natural or ordinary meaning."

The words used in G.S. § 105-296(2), when given their ordinary meaning, are clear and require no construction. The statute distinguishes between real property "set apart for burial purposes," which is exempt, and that "owned and held for purposes of sale or rental," which is not exempt. Obviously, plaintiff's property will not be used by plaintiff for burial purposes. It is owned and held by plaintiff for sale to purchasers who in turn will use it for burial purposes. When the words, "set apart for burial purposes," and the words, "owned and held for purposes of sale or rental," are considered contextually, we are of opinion, and so decide, that the exemption contemplated by G.S. § 105-296(2) refers only to real property presently in use for burial purposes and property owned and held by persons for their use for burial purposes. Since plaintiff's property is not held for its use for burial purposes but solely for the purpose of sale to others, the conclusion is inescapable that plaintiff's said property does not fall within the statutory exemption.

Since plaintiff relies largely on an excerpt (quoted below) from the opinion in Raleigh Cemetery Association v. City of Raleigh, 235 N.C. 509, 70 S.E.2d 506, it is appropriate to draw into sharp focus the question there presented and decided.

The (1869) charter of the Raleigh Cemetery Association contained this provision: "That the real estate of said corporation, and the burial plots conveyed by said corporation to individual proprietors, shall be exempt from assessment and taxation, * * *" The property involved consisted of 31.3 acres of land (with frontage on two streets) owned and held by the plaintiff for cemetery purposes. The plaintiff, relying on said charter provision, sought to restrain the defendant "from making a local improvement assessment against its property * * *" A judgment restraining the defendant, in accordance with the plaintiff's prayer, was reversed by this Court.

Our opinion states: "The question posed for determination is simply this: Does the above provision in the plaintiff's charter exempt its real property, held for burial purposes, from local improvement assessments? The answer must be in the negative." The charter provision expressly exempted the real estate of the plaintiff from liability for ad valorem taxes. The only question was whether it exempted the plaintiff's real estate "from local improvement assessments."

Plaintiff quotes this excerpt from the opinion: "Real property set apart for burial purposes, in this State, is exempt from taxation, unless the property is held for personal or private gain. G.S. § 105-296(2). Hence, the property of the plaintiff is exempt from ad valorem taxes both under the provision contained in its charter and the general law. But, neither the provision in its charter nor the general law authorizes its exemption from a local improvement assessment made pursuant to and in conformity with the law authorizing such assessment. No land in a municipality is exempt from assessment for local improvements." Plaintiff stresses the italicized portion.

Decision in Raleigh Cemetery Association v. City of Raleigh, supra, was not based upon and did not involve an interpretation of G.S. § 105-296(2). Reference thereto was incidental. Apparently, through inadvertence, the opinion uses the clause, "unless the property is held for personal or private gain," instead of the clause in G.S. § 105-296(2), namely "except such as are owned and held for purposes of sale or rental." In any event, "(i)t is but an expression of opinion upon an incidental question not presented in the appeal, and has not the force of an adjudication upon the point." Miller v. Lash, 85 N.C. 51, 52, 56. Accord: Muncie v. Travelers Insurance Co., 253 N. C. 74, 79, 116 S.E.2d 474, 477; Hayes v. City of Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 681.

Whether G.S. § 105-296(2) should be amended by substituting the words, "unless the property is held for personal or private gain," or words of similar import, for the words, "except such as are owned and held for purposes of sale or rental," is a matter for determination by the General Assembly. As now written, G.S. § 105-296(2) does not exempt plaintiff's property from ad valorem taxation. Hence, the judgment is affirmed.

Affirmed.

HUSKINS, J., took no part in the consideration or decision of this case.