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10 



The Rorists* Review 



Jolt 6, 1916. 



the superintendent of the cemetery, who 

 acts under the direction of, and is sup- 

 posed to be familiar with the plans 

 and purposes and general scheme of 

 improvements of, the association. 



• * * It is difficult to see how the 

 rights of individual lot owners in re- 

 spect to those things which are or may 

 become objectionable to adjacent lots 

 can be properly conserved without some 

 general and indeed exclusive control of 

 the ornamentation of all lots, as is 

 provided for in the by-laws to which 

 exception is taken. ♦ ♦ • There is 

 no objection to the regulation of the 

 plaintiff association on the ground of 

 excessive charges or that the work 

 necessary to be done in and about the 

 care of the lots of lot owners has not 

 been faithfully and tastefully per- 

 formed whenever requested." 



In view of the last quoted sentence 

 of the decision, it is clear that an asso- 

 ciation is not entitled to monopolize the 

 floral patronage of a cemetery for the 

 purpose of profit, and that the case 

 serves as no precedent to enable an 

 association to exclude outside florists 

 for any other reason than to secure a 

 uniform scheme of ornamentation. 



No Arbitrary ControL 



Limitation upon the power of asso- 

 ciations is defined in the following lan- 

 guage of the Connecticut Supreme Court 

 of Errors in the case of State vs. 

 Scoville, 78 Connecticut Reports, 90, 

 wherein the court sustained the valid- 

 ity of the rule giving the officers of an 

 association control over the planting 

 and trimming of herbage on lots: 



"It is argued that the effect, if not 

 the object, of this particular provision 

 of the by-law, is to enable the associa- 

 tion to arbitrarily control the cutting 

 of grass, etc., for other reasons than 

 to secure the proper care and manage- 

 ment of the burial lots. Such is not its 

 effect, and we have no- reason to treat 

 it as passed for that purpose. It may 

 serve, and was presumably intended to 

 serve, the lawful purpose of enabling 

 the association to secure the proper 

 care and management of burial lots. 



• • * Possibly a different question 

 would have been presented in this case, 

 had it been shown that the president 

 or superintendent of the association 

 had arbitrarily refused to permit a lot 

 holder, or one acting under his author- 

 ity, to cut the grass upon such owner's 

 lot, when such cutting could in no way 

 have affected or interfered with the 

 proper care or management of the 

 cemetery." 



Help Hired by Lot Owners. 



The foregoing discussion presupposes 

 that an association has reserved the 

 right to regulate the improvement of 

 lots, and has not given lot owners the 

 right to do work themselves. In this 

 view there is no conflict of judicial au- 

 thority raised by the decision of the 

 New York Supreme court in the case 

 of Johnstown Cemetery Association vs. 

 Parker, 59 New York Supplement, 821, 

 to the effect that where the deeds under 

 which cemetery lots were sold gave the 

 holders the right to cultivate shrubbery, 

 etc., subject to removal of improper 

 objects by the association, the associa- 

 tion could not interfere with the lot 

 owners in cutting weeds, etc. And the 

 Maryland Court of Appeals decided 

 that where an association had recog- 

 nized, for more than twenty years, the 



rights of owners to construct their 

 own improvements, employees of the 

 owners could not afterward be prevent- 

 ed from making improvements under 

 direction of such owners. (Silverwood 

 vs. Latrobe, 13 Atlantic Reporter, 161.) 

 I find no decision which draws any 

 distinction between the right of a lot 

 owner to do planting on lots and to 

 have the work done by a florist, and 

 the reasoning of the above cited cases 

 shows that no such distinction can be 

 fairly drawn. Hence I am of the opin- 

 ion that the courts would hold a rule 

 of an association purporting to permit 

 an owner to care for his lot, but forbid- 

 ding his employment of an outside flo- 

 rist, to be void for unreasonableness. 



Competition In Outside Business. 



Having attempted to show that a 

 cemetery association's right to monopo- 

 lize the flower business of the cemetery 

 depends upon reasonable necessity to 

 secure a uniform scheme of ornamenta- 



|9VERY now and then a weU- 

 ■9 pleased reader speaks the word 

 which is the means of brins;in£ a 

 new advertiser to 



Such friendly assistance is thoroughly 

 appreciated. 



Give us the name of anyone from 

 whom you are buying;, not an adver* 

 tiser. We especially wish to interest 

 those selling articles of florist's use 

 not at present advertised. 



FLORISTS* PUBLISHING CO. 

 530-60 Cazton BIdg. Chicago 



tion, we pass to the question whether 

 an association may lawfully compete 

 with regular florists in outside business. 

 My opinion that, under ordinary cir- 

 cumstances, they may not do so is based 

 on the following cited authorities: 



"Judicial decisions abound in gen- 

 eral statements of doctrine to the ef- 

 fect that corporations possess only 

 such powers as are expressly granted, 

 or such as are necessary to carry into 

 effect the powers expressly granted." 

 (10 Cyc, 1096.) 



Engaging in the florists' business 

 within the limits of a cemetery for the 

 purpose of ornamenting lots and graves, 

 within the scope of the legal doctrine 

 hereinbefore discussed, may be sup- 

 ported as a reasonable incident to the 

 preservation of graves. But I read the 

 law as making it as far foreign to the 

 powers of a cemetery association to en- 

 gage in the general business of a florist 

 outside the cemetery as it would be for 

 the association to attempt to conduct 

 a butcher shop or dry goods store, ex- 

 cept that the courts would probably 

 hold that any surplus stock remaining 

 in good faith after supplying cemetery 

 patronage might be disposed of in out- 

 side trade. This holding would accord 

 with a recent decision of a state su- 



preme court to the effect that an elec- 

 tric street railway company might dis- 

 pose of surplus power to private con- 

 sumers, although not empowered by its 

 charter to sell power generally. 



Public Batlier Than Private. 



There are numerous decisions support- 

 ing the view that cemetery associations 

 are restricted in the business in which 

 they may engage. 



"The purposes for which cemetery 

 corporations may be organized are pub- 

 lic rather than private, and the lands 

 acquired by such corporations, and de- 

 voted to the purposes of burial, are held 

 in trust for public, rather than private, 

 use. * « « The one purpose for 

 which such corporations may be or- 

 ganized is * * * the * procuring and 

 holding lands to be used exclusively 

 for a cemetery or place for the burial 

 of the dead.' * * ♦ The proceeds 

 of sales are to be applied to the pay- 

 ment of any debts incurred by the asso- 

 ciation in the purchase of cemetery 

 grounds and property, and in the im- 

 proving and necessary care and man- 

 agement of the same, 'and t&r no other 

 purpose.' No purpose of private gain 

 or benefit is contemplated by the law, 

 but only the accomplishment, through 

 such corporate agencies, of the same 

 public purposes which, in the absence of 

 such a statute, or in the event of no 

 such corporations being organized, 

 would generally be accomplished by the 

 exercise of powers conferred upon 

 towns, villages and cities." (Wolford 

 vs. Crystal Lake Cemetery Association, 

 54 Minnesota Reports, 440.) 



A corporation organized to establish 

 a public cemetery cannot be adapted 

 to the acquisition of profits by the di- 

 rectors and incorporators. (Brown vs. 

 Maplewood Cemetery Association, 85 

 Minnesota Reports, 498.) 



Not for Personal Profit. 



In the last cited case, the court aptly 

 said that it was inconceivable that the 

 tax exemption and other privileges ac- 

 corded cemetery associations "should 

 be granted for the purpose of aiding 

 schemes for private profit." 



"It is to secure permanence of 

 'God's acre' that cemetery corporations 

 are restricted to burial purposes, and 

 cannot engage and involve their prop- 

 erty in general corporation activities. 

 If the cemetery could take up general 

 stock corporation enterprises, a reverse 

 might lead to a sequestration of its 

 funds and so reach and absorb the per- 

 manent investments sacredly devoted to 

 its preservation and the care of me- 

 morials of the dead." (Grace vs. Re- 

 pose Mausoleums, Inc., 78 New York 

 Miscellaneous Reports, 213.) 



The Kansas Supreme court added its 

 view to this doctrine in the case of 

 Davis vs. Coventry, 65 Kansas Reports, 

 563, where it was said of a cemetery 

 association: "Is this corporation pub- 

 lic or for profit? Many reasons may 

 be found in the law for concluding that 

 it is public and none supporting the 

 contrary idea. For instance, the prop- 

 erty so platted and held is exempt from 

 taxation. • • • No reason can be 

 suggested why a private cemetery cor- 

 poration operated for profit should re- 

 ceive any more grace at the hands of 

 the legislature than a private corpora- 

 tion organized for any other purpose. ' ' 



Scope of Tax Exemptions. 



If the laws of any state and the 



