PARK AND CEMETERY . 
310 
the dead are buried should be protected 
and preserved against the interference of 
possible sales for unpaid taxes, or un- 
der execution for debts, and be kept free 
from all molestation or desecration. 
These legislative exemptions of ceme- 
tery property are the expression of that 
wish. But it is not perceived how that 
wish is made effectual by exemption 
from taxation property not used for 
burial places that has no associations 
connected with it, and may be disposed 
of by the association at any time, to any 
person for any purpose. A reading of 
this section also discloses that all the 
provisions, except that relating to tax- 
ation, can refer only to real estate. The 
word “property” as used in association 
with the words “cemetery lands” would 
be reasonably and according to well- 
known rules of construction held to 
mean like property to cemetery lands, 
and could well refer to structures, mon- 
uments, gravestones, and buildings erect- 
ed upon the lands for cemetery pur- 
poses. In the general tax acts, when 
personal propert}’ is exempted from tax- 
ation it is plainly indicated. In the ta.x 
act of 1866 as amended in 1894 (Gen. 
St. 3320, § 200, subd. 2) the exemption 
of colleges, etc., is as to the “land” and 
“the furniture” of the buildings and “the 
personal property used therein,” and 
much the same language appears in the 
tax act of 1903 (P. L. p. 394). The 
tax act of 1903 exempts cemeteries un- 
der the following language : “Grave- 
\ ards, not exceeding ten acres of ground, 
cemeteries and buildings for cemetery 
use erected thereon.” The word “prop- 
erty,” as used in section S of the act 
authorizing the incorporation of ceme- 
teries, supra, does not include personal 
property. 
VVe think, further, that the only right 
of exemption from taxation which these 
prosecutors have must be found in “an 
act for the assessment and collection of 
taxes.” P. L. 1903, p. 394. This is a 
general act upon the subject, and con- 
tains a declaration by the Legislature 
what property in the state shall be sub- 
ject to taxation and what property shall 
be e.xempt from taxation. It enacts: 
“.'Ml property real and personal within 
the jurisdiction of this state not e.x- 
pressly exempted by this act or excluded 
from its operation shall be subject to 
annual taxation at its true value undei 
this act.” The only exemptions are the 
exemptions expressly mentioned in the 
act. and contained in subdivisions 1, 2, 
3, 4, .5, 6, and 7 of section 3. The prop- 
erty excluded from its operation is the 
property mentioned in subdivision 8 of 
section 3, viz., “all offices and fran- 
chises and all property used for railroad 
and canal purposes, the taxation of 
which is provided for by any other law 
of this state.” The act of 1903 has also, 
in section 66, this general repealer : “All 
acts, general and special inconsistent 
with the provisions of this act are here- 
by repealed.” 
It cannot be contended that the Leg- 
islature is without power to change the 
method and manner of taxing the prop- 
erty of cemetery associations incorpo- 
rated under the act of 1875, supra. Sis- 
ters of Charity v. Chatham, 52 N. J. 
Law, 373, 20 Atl. 292, 9 L. R. 198. 
The Legislature has clearly expressed its 
intention to regulate the taxation of the 
property of cemetery associations by the 
act of 1903, supra. By that act there is 
no exemption from taxation of the per- 
sonal property of cemetery' associations. 
The only property of such associations 
e.xempt from taxation is “cemeteries.” 
'I'he taxes assessed were confirmed with 
costs. 
Right to Condemn Cemetery Land 
Denied 
The Memphis State Line Railway Co., 
sought to condemn a right of way- 
through an unused part of Forest Hill 
Cemetery, Memphis, Tenn., but the Su- 
preme Court decided that a railroad 
company has no right to condemn a right 
of way through lands of a cemetery com- 
pany, though such portion of the ceme- 
tery has not been improved or used for 
burial purposes. 
Forest Hill Cemetery is located 
something over twm. miles from the city 
of Memphis. It comprises 180 acres. 
The railroad proposes to run through 
the southeast corner, appropriating 4.49 
acres, and severing from the body of the 
cemetery 23.35 acres lying east of its 
line. There are no bodies interred along 
the proposed line of railway; this por- 
tion of the cemetery being at present 
covered with wild growths. Before the 
])resent proceedings w'ere begun, how- 
ever, a plan had been devised and had 
had been partly- executed for adorning 
all the grounds belonging to the ceme- 
tery company so as to make them har- 
monious and beautiful in all their parts. 
The ground in question is the most de- 
sirable of all the 180 acres from a scenic 
point of view-. The cemetery has been 
in use as a place for interment about 
eight years, and during this period 1,300 
bodies have been buried therein, in a 
space covering about 36 acres. 
There are two other routes along 
which the railroad might be located 
without touching the cemetery. One of 
these routes lies north of the cemetery 
and runs parallel w-ith the line of the 
I'nion Raihvay Company. This w-ould 
be a more expensive route than the one 
in question, however, because of the to- 
pography of the country, and also from 
the fact that there are residences along 
the line. It is also suggested that this 
line would lead through the Jewish 
Cemetery in the same neighborhood 
through a tract in which bodies have 
been interred; but the evidence shows 
that the line may be run along this route, 
so as not to interfere with the last-men- 
tioned cemetery. The evidence shows 
that there is another line along which 
the road might be located, lying south 
and east of Forest Hill Cemetery. The 
construction and maintenance of this 
line, however, would be much more e.x- 
pensive than the one through Forest Hill 
Cemetery, owing to the fact that there 
would have to be a \ery deep cut made 
through a hill. 
Judge Neil in rendering the decision, 
said: "It is insisted that Forest Hill 
Cemetery company will not be injured 
by the construction and operation of a 
railway through its premises, because no 
bodies are interred along the proposed 
route, and that portion of the cemetery- 
lias not as yet been improved. These 
objections are well answered in the main 
by the case of Evergreen Cemetery v. 
New Haven. The city, acting under a 
general power conferred upon it to lay- 
out, construct, and maintain all neces- 
sary- highw-ays within its limits, sought 
to run a public street through Evergreen 
Cemetery- over land occupied at the time 
by- a border of evergreens and in part by 
Evergreen avenue laid out in the ceme- 
tery.. Speaking to these facts the Su- 
preme Court of Connecticut said : 
"That the Legislature has the right to 
authorize the taking of land already ap- 
plied to one public use, and devote it to 
another, is unquestionable. * * * -piie 
language here used is broad enough to 
embrace all land, whether used for one 
purpose or another. Nevertheless, there 
are cases in which it will be presumed 
that the Legislature presumed it should 
not apply. It will be assumed that land 
devoted to one public use will not be 
taken and devoted to another inconsist- 
ent with the first. The same land can- 
not properly- be used for burial lots and 
for a public highway at the same time. 
The two uses are inconsistent with each 
other, and the one practically excludes 
the other. ^ makes no dif- 
ference that the part taken was used for 
shrubbery- and a carriageway. A ceme- 
tery includes not only lots for depositing 
the bodies of the dead, but also avenues, 
walks, and grounds for shrubbery and 
ornamental purposes. All must be re- 
garded alike as consecrated to a public 
and sacred use. The idea of running a 
