246 
PARK AND CEMETERY 
compliance with the statutes of the state 
relating to such cemeteries. These stat- 
utes provide, in effect, that a religious cor- 
poration may establish a cemetery by filing 
with the register of deeds of the county 
a recorded plat of the cemetery grounds, 
and that “all lands, not exceeding one hun- 
dred acres in extent, so laid out and dedi- 
cated as a private cemetery, shall he ex- 
empt from public taxes and assessments,’’ 
etc. The decision establishes the point 
that filing of a plat is essential to exempt 
burial grounds from taxation, so far as 
private cemeteries are concerned. 
The holding of the court does not, how- 
ever, recognize the right of the city to 
levy assessments against land actually oc- 
cupied by graves, but on the contrary 
shows that the assessment must be col- 
lected out of land still held by the church 
for sale as lots. The court said : “It would 
be unthinkable that land actually in use 
for burial purposes should or could be 
sold.’’ 
The decision also recognizes a strong 
policy of the state to favor exemption of 
cemeteries from taxation, but holds that 
the exemption must be declared by the 
legislature, and not the courts. This de- 
cision conforms to the holdings of other 
courts in other states on the point that 
cemeteries are e.xempt from taxation for 
local improvements only so far as the 
grounds are actually occupied by graves, 
or only so far as some law granting an 
express exemption can be pointed out. So, 
exemption failed in this case because the 
cemetery was not owned by a “public cem- 
etery association,” nor by a private asso- 
ciation which had recorded any plat. 
The case was one in which a sewer 
assessment approximating $2,000 levied by 
the City of St. Paul against the Catholic 
diocese of St. Paul as owner of Calvary 
Cemetery. 
The exemption claim of the diocese is 
overruled and the cemetery exemption law 
is held not to apply. It does not appear 
that the assessment in question cannot be 
collected in the usual course out of lands 
of the cemetery not in use for burial pur- 
poses, the opinion says, and no error by 
St. Paul officials in levying of the taxes. 
Right to Control Lot Improvement 
“Are we within our legal rights in ex- 
cluding a monument dealer who has made 
himself objectionable and failed to do 
good w'ork, from doing work in our cem- 
etery while the owner of the lot insists 
upon it?” — Cem. Assn., Va. 
Although the ground of complaint 
against the particular monument dealer is 
not stated with sufficient definiteness to en- 
able us to give a specific opinion on the 
cemetery’s right to exclude him, a con- 
clusion governing the case may be drawn 
from a statement of well established legal 
principles which have been laid down by 
the courts in similar cases. 
That a certain monument dealer has a 
poor reputation for skill or integrity in 
his dealings is, in my judgment, enough to 
warrant cemetery authorities in refusing 
to grant him permission to do work on 
the grounds. It is their right, if not strong 
duty, to exclude him in the interest of the 
decent appearance of the ornamental struc- 
tures in the cemetery, and as a means of 
protecting lot owners against the imposi- 
tion upon them which would follow from 
giving a slouchy or irresponsible man free 
rein. 
The power of cemetery authorities i.s 
even broader than this. They may adopt 
rules which reserve to the association con- 
trol of such matters as the construction of 
foundations, trimming of grass on lots, 
planting of flowers, etc., and these rules 
are binding on all persons who become lot 
holders after or adoption of the rules, or 
who bought their lots subject to regula- 
tions to be adopted in the future, as well 
as those rules in force at the time of their 
purchase. 
Rut cemeteries must exercise these pow- 
ers in good faith. While, on one hand, 
they are entitled to secure the best inter- 
ests of the association, the lot holders at 
large and of the public by adopting reason- 
able rules and by excluding objectionable 
persons, they are legally powerless to adopt 
arbitrary measures which unjustly inter- 
fere with a lot owner’s reasonable enjoy- 
ment of his rights, or which is designed 
merely to give one or a few outsiders a 
monopoly of the patronage of lot holders 
except as against persons buying lots while 
such measures are in force. 
A monument dealer who does hotchy 
work may he kept out of a cemetery for 
very much the same reasons that a doctor 
of had reputation might he excluded from 
an office building which caters to reputable 
physicians only. But he cannot be ex- 
cluded because of his political faith or re- 
ligious belief, nor because the cemetery 
authorities have some personal grudge 
against him, disconnected from his ability 
and willingness to serve his patrons with 
reasonable skill and integrity. Nor are the 
cemetery authorities entitled to discrim- 
inate against one monument dealer for 
the main purpose of favoring his com- 
petitor. An attempt to do this is nothing 
less than an outrage against both lot hold- 
er and the dealer discriminated against. 
The lot holder is entitled to the benefits 
of all reasonable competition in the pur- 
chase of monuments, etc., and all legiti- 
mate dealers are entitled to unhampered 
opportunities for extending their trade. 
The cemetery authorities may require ap- 
proval of plans and specifications by them- 
selves before improvements may be con- 
structed over graves, in the interest of a 
uniform scheme of improvement affecting 
the entire cemetery, but they have no right 
to build up a monopoly as a matter of pure 
favoritism, except as a lot owner may 
have agreed thereto when buying his lot. 
Reference to a few court decisions may 
serve to make the law on this subject 
somewhat clearer. 
In the case of Roanoke Cemetery Co. 
vs. Goodwin, 101 Virginia Reports, 605, 
the Virginia Supreme Court of Appeals 
sustained the validity of a regulation of 
the plaintiff association, imposing a grave 
fee in favor of the cemetery superintend- 
ent, as compensation for opening and re- 
filling graves and for removing surplus 
dirt from lots and a subsequent amend- 
ment of the rule whereby the fee became 
due regardless of who should do the work. 
One Bowles bought a lot in plaintiff 
cemetery and later undertook to have a 
grave opened by defendant, an under- 
taker, without compliance with the cem- 
etery company’s rules. The company 
brought suit to enjoin defendant from ever 
opening graves in the grounds without 
complying with the cemetery rules. De- 
fendant resisted the suit on the ground 
that the rules were unreasonable and un- 
just, and tended to create a monopbly in 
favor of the cemetery superintendent, and 
on the further ground that a $5 grave fee 
was excessive. 
The evidence showed that the fee was 
somewhat in excess of the actual cost of 
opening and refilling a grave, but that it 
was no higher than other cemetery com- 
panies imposed for similar service. 
The trial judge ruled that the superin- 
tendent’s services should be compensated 
by way of salary paid out of the com- 
pany’s general funds ; that the work of 
opening graves and other duties pertaining 
to interments should be left open to legiti- 
mate competition ; and that, in any event, 
a lot holder should not be held liable for 
more than the actual cost of service ren- 
dered by the superintendent. 
But the cemetery company appealed from 
this decision and won out in the Supreme 
Court of Appeals, which decided the fol- 
lowing points: 
A lot holder has no absolute dominion 
over his lot; he holds a peculiar title, dif- 
ferent from that pertaining to ordinary 
real estate. He has an exclusive right to 
bury in the lot, “subject to the general 
proprietorship and control of the associa- 
tion, in whom the legal title is lodged. All 
purchasers from such companies are af- 
fected with notice of the limitations placed 
upon their holdings by the law of the land, 
and the charter, constitution and by-laws 
of the company made in pursuance there- 
of.” 
The higher court decided that plaintiff’s 
rules were valid, especially since they ap- 
peared to be “reasonable, and equal in their 
operation, and uniform in their applica- 
tion to all owners of lots in the cemetery.” 
Referring to the decree appealed from, 
the Supreme Court of Appeals also said : 
“The decree is amenable to the further 
objection that it undertakes to prescribe 
rules and regulations for the management 
of the company, to the extent even of de- 
termining the fund out of which the salary 
of the superintendent shall be paid. It is 
not permissible for a court to thus sub- 
stitute its own business discretion and 
i 
