10 
raise such funds as will enable them to beautify 
and ornament the homes of the dead. This was 
the object of the charter creating this cemetery, 
where is found, from the testimony, at the time 
this action was instituted, nearly 40,000 graves, 
and no Chancellor should authorize the tax gath- 
erer to invade this territory of the dead to enforce 
the collection of any assessment made by a state, 
county or municipality, or take from the faithful 
trustee the funds set apart from the sale of lots 
and apply them to such a purpose, when, by the 
terms of the charter, the land itself is exempt 
from execution.” Under these decisions the land 
of the Cemetery Company in question cannot be 
subjected to the apportionment warrant, and is 
not subject to a lien therefor; for under the 
construction of the statutes there adopted, Section 
133G Kentucky Statutes must be held as creating 
an exception out of the statutes giving a lien for 
street improvements. It cannot be presumed that 
the Legislature intended to create a lieu upon 
property when it declared it unlawful to enter 
upon it or to disturb it in any way. To hold that 
the purchaser would violate Section 1336 if he 
took possession of the property, is necessarily to 
hold that the Legislature did not intend to create 
a lien upon it; for it cannot be presumed that 
it intended a vain thing. The effect of these 
decisions is that Section 1336 Ky. St., is to be 
read into the statutes creating the lien on the 
abutting property; and when it is so read it neces- 
sarily excepts cemetery property out of their 
operation. If the section of the statute giving 
the lien had contained as a proviso the words 
contained in Section 1336, this would admittedly 
be their effect, and the result is the same when 
by judicial construction they are to be read into 
it or as qualifying it. The Legislature, since these 
decisions were rendered, has acquiesced in this 
construction. There is no statute now in force 
giving the city a right to subject cemetery prop- 
erty, the amendatory act above referred to, not 
having been brought over into the present statutes. 
The construction of the statute having been acqui- 
esced in by the Legislature, cannot now be dis- 
turbed. 
It remains to determine if the funds in the 
hands of the Cemetery Company may be sub- 
jected. To require the Cemetery Company to pay 
the apportionment warrant when its land is not 
subject to a lien would be in effect to make the 
owner of the property personally liable for the 
amount sued for. But we have often held that 
the owner is not personally liable for the cost 
of a street improvement. (Orth vs. Park, 117 Ky. 
791; Long vs. Barbour Asphalt Co., 151 Ky. 1, and 
cases cited). To require the Cemetery Company 
to pay the money into court is only iu another 
form to subject its property to the lien. All the 
funds in the hands of the Cemetery Company are 
held under a trust to maintain the cemetery, and 
to require these funds to be paid out for other 
purposes is to require the trustee to divert the 
funds from the trust to which they are dedicated. 
In Row and Lyons vs. Scanlon, 98 Ky. 25, a 
county was indebted to a contractor for the con- 
struction of a courthouse, and had set apart a fund 
for the payment of the debt. Mechanics and 
material men haring claims against the contractor 
for labor done and material furnished in the erec- 
tion of the building, had given the notice required 
by the statute, and it was held that they thus 
acquired a lien upon the fund, although the lien 
could not be enforced against the courthouse. The 
same rule upon like facts was applied in Noonan 
vs. Hastings, 101 Ky. 313; Allen Co. vs. Fidelity 
and Guaranty Co., 122 Ky. 833. But these cases 
have no application here. The county hadi con- 
tracted for the building of the courthouse and had 
set aside the fund to pay for it. The fund so 
set aside represented the building, and in giving 
the laborers and material men a lien upon the 
fund, no part of it was diverted' from the purpose 
for which it was dedicated. But! here the Ceme- 
tery Company has made no contract; it holds the 
funds in its hands dedicated to other purposes; 
and these funds do not represent in any way the 
lots sought to be subjected and have no connection 
therewith. In those cases there was a personal 
liability for the price of the building; here there 
is no personal liability. 
It is a sound public policy to protect the burying 
place of the dead. Families scatter; family bury- 
ing grounds sooner or later fall into decay, and 
experience has shown that the only way to protect 
permanently burying grounds is to have some 
organization similar to appellant. The purchasers 
of lots in the cemetery bought them and paid 
for them under a contract that the money they 
so paid should be used in protecting, keeping up, 
and ornamenting the cemetery. This constituted 
PARK AND CEMETERY. 
a large part of tile consideration. To require this 
money now to he paid out for* other purposes 
would be to divert the trust fund from the pur- 
poses to which it was dedicated and to impair the 
obligation of the contract. This cannot be done. 
We do not see therefore that either the land 
may be subjected to the claim or that the Ceme- 
tery Company may properly be required to pay it 
out of the funds in its hands. 
Judgment reversed and cause remanded for a 
judgment as above indicated. 
In the Kansas City case the suit of W. 
C. Mullin vs. St. Mary’s Cemetery Asso- 
ciation, in the Circuit Court of Jackson 
County, Mo., was commenced July 24, 
1907, upon special tax bills issued some 
three or four years prior to that date, in 
the sum of $19,031. 
These tax bills were part of tax bills is- 
sued for the construction of sewers in the 
southeastern part of Kansas City, Mo. 
Mt. St. Mary’s Cemetery Association 
owns Mt. St. Mary’s Cemetery, a 35-acre 
tract of ground, in one of the sewer dis- 
tricts. The plaintiff in this suit originally 
sought an alternative judgment in his pe- 
tition. He asked that the tax bills be de- 
clared a lien upon the cemetery land and 
that this land be sold upon execution, and 
if the court should hold that the cemetery 
tract was not subject to sale upon execu- 
tion, he prayed that, in that event, the 
court permit an execution to issue against 
any other property or money of the cem- 
etery association or that a receiver be ap- 
pointed for the association until such time 
as the revenue should liquidate the tax 
bills. The defendant filed a general de- 
murrer to the plaintiff’s petition and con- 
tended that under the statutes of the state 
of Missouri the cemetery was exempt from 
execution sale. 
Upon the first trial in the Circuit Court 
this demurrer was sustained, and the tax 
bills declared void. The plaintiff appealed 
to the Supreme Court of the State of Mis- 
souri, and this court, in November, 1911, 
handed down an opinion in which the de- 
fendant’s contention that no general judg- 
ment could be issued against the cemetery 
association was sustained, and the defend- 
ant’s contention that the cemetery tract 
was not subject upon execution was over- 
ruled. 
In the opinion rendered by the Supreme 
Court it maintained that exemption from 
sale on execution under statutes did not 
mean exemption from sale upon a special 
execution such as would be issued to en- 
force the lien of a tax bill. 
The state of New York has a statute 
exempting cemetery land from execution, 
of which the Missouri statute is a copy. 
The courts of New York have decided 
flatly that under this statute special £ax 
bills against cemetery land are void. These 
New York cases construing the New York 
law were cited to the Missouri Supreme 
Court, but the court did not see fit to 
adopt the construction of the New York 
courts in this case. 
Upon a new trial in the Circuit Court 
the cemetery association made two addi- 
tional defenses. Its first defense was that 
the enforcement of these tax bills would 
result in the confiscation of the defendant’s 
property and violated the constitutional 
provision that private property should not 
be taken for public use without just com- 
pensation or without due process of law. 
The defendant contended that the enforce- 
ment of these tax bills and the sale of the 
property to pay them would simply be a 
condemnation of the property for public 
use under the guise of taxation. The de- 
fendant further contended that as the city 
charter of Kansas City required tax bills 
to be issued against all the lots of land in 
the district separately, these tax bills, 
which covered the whole cemetery, em- 
bracing the lots and tracts owned by sev- 
eral individual owners, were in direct vio- 
lation of the charter and were conse- 
quently void. 
The Circuit Court, upon a second trial, 
did not decide the constitutional question, 
but held that the defendant’s contention 
that these tax bills covering the whole 
cemetery were void as being in violation 
of the city charter, and for the further 
reason that their enforcement wouldr re- 
sult in the imposing upon the part of the 
cemetery remaining unsold a tax which 
should properly be borne by the cemetery 
association and by the owners of the vari- 
ous lots. 
The plaintiff in this case has filed an 
affidavit and bond for appeal and proposes 
to try the case again in the Supreme Court 
of Missouri. 
Counsel for the cemetery association are 
of the opinion that the ruling of the Su- 
preme Court of Missouri, when it ruled 
that the statutes of Missouri exempting 
burial grounds from sale upon execution, 
did not forbid the sale of this class of 
property to pay tax bills, is not good law, 
and that, upon another hearing, the deci- 
sion as it now stands would be overruled 
or modified. In many of the states of the 
Union courts have refused to permit the 
sale of cemeteries on the ground that it 
was against public policy and public de- 
cency. In Nebraska the court said that the 
law will not permit litigants to engage in 
an unseemly struggle for the few feet of 
Mother Earth that is necessary to enfold 
the last that is mortal of man. In this 
Cullins case, the tax bills were issued for 
sanitary sewers and the cemetery land was 
taxed at the same rate per square foot as 
lots containing dwellings, stores, barns, etc. 
Of course, the cemetery needed only or- 
dinary tile drains, and the injustice of an 
attempt to saddle upon it something in 
no event beneficial to it is apparent. 
The tax bills upon which Mullins 
brought suit bear interest at 7 per cent per 
annum, with an additional 3 per cent per 
annum penalty for non-payment when due. 
The sum now claimed on these tax bills is 
nearly $40,000, with a similar amount on 
dormant suits pending the outcome of this 
one. 
