Silverbrook Cemetery Co. v. Dept. of Finance

449 A.2d 241 (1982)

The SILVERBROOK CEMETERY COMPANY, a Delaware corporation, Plaintiff Below, Appellant, v. The DEPARTMENT OF FINANCE OF NEW CASTLE COUNTY, and William Zimmerman, Director of the Department of Finance of New Castle County, Defendants Below, Appellees.

Supreme Court of Delaware.

Submitted: June 16, 1982.

Decided: August 2, 1982.

Bruce M. Stargatt and Richard H. May (argued) of Young, Conaway, Stargatt & Taylor, Wilmington, for plaintiff below, appellant.

Dennis J. Siebold (argued) of the New Castle County Law Dept., Wilmington, for defendants below, appellees.

Before HERRMANN, C. J., McNEILLY and QUILLEN, JJ.

HERRMANN, Chief Justice:

In this appeal, the Court is asked to review the denial by Superior Court of a petition for a Writ of Prohibition by the Silverbrook Cemetery Company (hereinafter "Silverbrook") filed to prevent the County from assessing property tax against property owned by Silverbrook and designated for cemetery use.

I.

In an earlier appeal, this Court found that the 1971 amendment to Article VIII § 1 of the Delaware Constitution, when implemented by County Ordinance 74-61, did not result in repeal of Silverbrook's charter tax-exempt status. See Board of Assessment Review v. The Silverbrook Cemetery Company, Del.Supr., 378 A.2d 619 (1977).[*] Undecided in that opinion was the effect of 9 Del.C. § 8104[**] on Silverbrook's tax-exempt status; that question, it was determined, had not been litigated before the Board of Assessment Review. We now have that issue for decision.

The Superior Court concluded that the tax exemption, granted to Silverbrook by special act of the General Assembly, conflicted with § 8104; that the exemption was thereby impliedly repealed, § 8104 being the later enactment. Silverbrook Cemetery Co. v. Dept. of Finance, Del.Super., 444 A.2d 267 (1982). The Superior Court *242 found the statutory words "held by way of investment" a clear indication of "a legislative intent to remove the blanket exemption which previously existed and to provide in its place an investment test to insure that those who employ private capital in the development of certain activities, previously exempt, for the obtaining of profit should share in the general tax obligation...." 444 A.2d at 270. We must disagree.

II.

Silverbrook was granted corporate status by a special act of incorporation of the General Assembly in 1895. 20 Del.L. ch. 82. By its charter, Silverbrook was granted tax-exempt status as a "public facility." Relevant to this case is the following provision from Silverbrook's charter:

"Section 6. All lots of ground sold by the said company shall be exclusively used for burial lots; and the estate of the proprietors respectively in their respective lots shall be of qualified inheritance that is to say, the same shall descend as real estate to heirs; and the cemetary (sic) grounds, with the buildings, improvements and appurtenances shall be exempt from taxation and shall not be levied upon or taken by execution or other process of law or equity; and the said lots so sold shall be held subject to the by-laws and regulations of said company; provided, that no burial lot shall be aliened or devised so as to vest any right in the alienee or devisee without the approval of said board of directors." (emphasis added)

Since cemetery lots are sold for profit by Silverbrook, it is argued that the property is "held by way of investment" and, but for the express exemption, would be subject to tax assessment under § 8104. The County, believing Silverbrook's exemption to be thus removed, began assessment procedures in 1978 against Silverbrook's property, consisting of about 68 acres of land with "buildings, improvements and appurtenances."

III.

Section 8104 was first enacted as part of the 1953 Code, identified as 9 Del.C. § 8105. So far as is pertinent here, it was carried forward verbatim in the present 1974 Revised Code but renumbered 9 Del.C. § 8104. Likewise, incorporated into the 1953 Code, and included verbatim in the 1974 revision, is 1 Del.C. § 105 which provides:

"No private act ... or special act of incorporation, in effect on the date of enactment of this [1953 and 1974] Code, shall be affected by any provision hereof."

Section 8104 (and its predecessor § 8105) is a "provision" of the Code and subject to the restriction of § 105. Therefore, under the plain and unambiguous language of § 105, § 8104 can have no effect on the terms of Silverbrook's "special act of incorporation" and its tax exemption contained therein.

Because § 105 is clear and unambiguous, there is no room for statutory interpretation or construction. A & P Stores v. Hannigan, Del.Supr., 367 A.2d 641 (1976). The Trial Court erred by engaging in an interpretation of § 105 and holding that it does not apply to a modification of a corporate charter by a later statutory modification.

The Writ of Prohibition must therefore be issued. See Family Court v. Dept. of Labor & Indus. Rel., Del.Ch., 320 A.2d 777 (1974); 10 Del.C. § 562.

* * *

Reversed and remanded for proceedings consistent herewith.

NOTES

[*] For the texts of Art. VIII § 1 and Ordinance 74-61, see 378 A.2d at 620.

[**] 9 Del.C. § 8104 provides in relevant part:

"No real property owned and used by the organizations listed below or for the purposes stated below, except that which is held by way of investment, shall be liable to taxation and assessment for public purposes by any county or other subdivision of this state.

* * * * * *

Burial lots and cemeteries."