Raleigh Cemetery Ass'n v. City of Raleigh

Annotate this Case

70 S.E.2d 506 (1952)

235 N.C. 509


No. 455.

Supreme Court of North Carolina.

April 30, 1952.

*507 James H. Pou Bailey, Raleigh, and George F. Bason, Raleigh, for plaintiff, appellee.

Paul F. Smith, Raleigh, for defendant, appellant.

DENNY, Justice.

The question posed for determination is simply this: Does the above provision in the plaintiff's charter exempt its real property, held for burial purposes, from local improvement assessments? The answer must be in the negative.

*508 Article V, section 5, of our State Constitution, contains the following provisions: "Property belonging to the State or to municipal corporations, shall be exempt from taxation. The General Assembly may exempt cemeteries and property held for educational, scientific, literary, charitable or religious purposes; * * *."

The constitutional provision to the effect that property belonging to the State and to municipal corporations, shall be exempt from taxation, is self-executing and requires no legislation to make it effective. Piedmont Memorial Hospital v. Guilford County, 218 N.C. 673, 12 S.E.2d 265; Salisbury Hospital v. Rowan County, 205 N.C. 8, 169 S.E. 805; Andrews v. Clay County, 200 N.C. 280, 156 S.E. 855. Even so, this Court has uniformly held that property belonging to municipal corporations is not exempt from assessment for local improvements. Raleigh v. Public School System, 223 N.C. 316, 26 S.E.2d 591, 593; Raleigh v. Bank, 223 N.C. 286, 26 S.E.2d 573; Hollingsworth v. Mount Airy, 188 N.C. 832, 125 S.E. 925; Tarboro v. Forbes, 185 N.C. 59, 116 S.E. 81, 82. In the last cited case, Adams, J., in speaking for the Court, said: "Both the Constitution of North Carolina and the statute law provide that property belonging to the state or to municipal corporations shall be exempt from taxation. * * * But there is a distinction between local assessments for public improvements and taxes levied for purposes of general revenue. It is true that local assessments may be a species of tax, and that the authority to levy them is generally referred to the taxing power; but they are not taxes within the meaning of that term as generally understood in constitutional restrictions and exemptions. They are not levied and collected as a contribution to the maintenance of the general government, but are made a charge upon property on which are conferred benefits entirely different from those received by the general public. They are not imposed upon the citizens in common at regularly recurring periods for the purpose of providing a continuous revenue, but upon a limited class in return for a special benefit."

And Devin, J. (now Chief Justice), in speaking for the Court in Raleigh v. Public School System, supra, said: [223 N.C. 316, 26 S.E.2d 593.] "While the Constitution of North Carolina provides that property belonging to the State or to municipal corporations shall be exempt from taxation (Art. V, sec. 5), assessments on public school property for special benefits thereto caused by the improvement of the street on which it abuts are not embraced within the constitutional prohibition."

In 48 Am.Jur., section 98, page 649, it is said: "The general rule that exemption from taxation does not mean exemption from a special or local assessment, applies with respect to cemetery property," citing Hollywood Cemetery Ass'n v. Powell, 210 Cal. 121, 291 P. 397, 71 A.L.R. 310; Adams County v. Quincy, 130 Ill. 566, 22 N.E. 624, 6 L.R.A. 155; Garden Cemetery Corp. v. Baker, 218 Mass. 339, 105 N.E. 1070, Ann.Cas.1916B, 75; Macon v. Patty, 57 Miss. 378, 34 Am.Rep. 451; Lima v. Cemetery Ass'n, 42 Ohio St. 128, 51 Am. Rep. 809; Philadelphia v. Union Burial Ground Soc., 178 Pa. 533, 36 A. 172, 36 L.R.A. 263; In re City of Seattle, 59 Wash. 41, 109 P. 1052, Ann.Cas.1912A, 1047.

Real property set apart for burial purposes, in this State, is exempt from taxation, unless the property is held for personal or private gain. G.S. § 105-296 (2). Hence, the property of the plaintiff is exempt from ad valorem taxes both under the provision contained in its charter and the general law. But, neither the provision in its charter nor the general law authorizes its exemption from a local improvement assessment made pursuant to and in conformity with the law authorizing such assessment. No land in a municipality is exempt from assessment for local improvements. Chapter 56, Section 8, Public Laws of 1915, C.S. § 2710, now G.S. § 160-85(4); Winston-Salem v. Smith, 216 N.C. 1, 3 S.E.2d 328; Raleigh v. Public School System, supra.

Moreover, in our opinion, the exemption from "assessment and taxation" granted to the plaintiff in its charter was intended *509 by the Legislature to exempt its real estate, held for burial purposes, from assessment for ad valorem taxes only, and not from assessment for local improvements.

Any intent or attempt, on the part of the Legislature, to grant an exemption from any tax or assessment on real property, pursuant to the provisions of Article V, Section 5, of our Constitution, other than for ad valorem taxes, would, under our decisions, be without constitutional authorization. Hospital v. Guilford County, supra; Sir Walter Lodge, No. 411, Odd Fellows v. Swain, 217 N.C. 632, 9 S.E.2d 365; Stedman v. Winston-Salem, 204 N.C. 203, 167 S.E. 813.

We express no opinion on whether public policy would forbid the sale of a burial plot, in which an interment had been made, for the satisfaction of a local improvement assessment. This question is not presented on this appeal and any expression of opinion thereon would be obiter dictum. Nevertheless, for the reasons herein stated, the judgment of the court below is