(144 N.E.)

1. Cemeteries 5 Cemetery incorporated under special act held by its action to consent to be governed by general law.

Under section 8736 of the General Code, a cemetery corporation incorporated in 1839 under special act, which exercises the power of appropriation given to cemetery corporations under the general law, and not given under the special act, takes action in pursuance of part II, title 9, division VI, chapter VII, of the General Code, and thereby consents to be governed by the general law and to have and exercise all its franchises under the Constitution of 1851 and the law passed in pursuance thereof and not otherwise.

Suit by the Proprietors of the Akron Rural Cemetery against the Board of Education of the City of Akron for an injunction. Judgment for plaintiffs was affirmed by the Court of Appeals, and defendant moves to certify record. Affirmed.-[By Editorial Staff.]

The plaintiff in error, the Board of Education of the city of Akron, Ohio, brought an action in the probate court of Summit county to appropriate for playground purposes about 1.94 acres of land belonging to the defendant in error, the proprietors of the Akron Rural Cemetery. Thereupon the defendant in error applied to the court of common pleas for a perpetual injunction restraining plaintiff in error from appropriating said land. An answer and reply were filed, and the case proceeded to hearing upon the merits. A permanent injunction, as prayed for, was granted by the court of common pleas. Appeal was taken to the Court of Appeals, hearing was had upon the merits, and a permanent injunction was likewise allowed.

2. Eminent domain 47(1)—Property already appropriated cannot be taken for another public use in absence of power expressly granted. The Court of Appeals made separate findProperty already appropriated in the prop-ings of fact and conclusions of law, which er exercise of the power of eminent domain, read as follows: cannot be taken for another public use which will wholly defeat or supersede the former use unless power to make such second appropriation be expressly granted. Railroad v. Belle Center, 48 Ohio St. 273, 27 N. E. 464, approved and followed.

3. Eminent domain 52-Land exempt from appropriation cannot be taken under general power of appropriation.

When power to make an appropriation is granted only in general terms, land exempt from appropriation cannot be taken under such general power. Power to take land exempted from appropriation must be expressly granted in order to authorize such appropriation.

4. Eminent domain 52, 274 (1)-Cemetery corporation held entitled to hold land in excess of power of appropriation under special act.

A cemetery corporation incorporated in 1839 under a special act which provided that the said corporation should have "the power to purchase and hold land for cemetery purposes not exceeding fifty acres," but which did not grant to the said corporation the power of appropriating land, appropriated land in excess of the fifty acre limitation and held the same for cemetery purposes. A board of education instituted proceedings under section 7624, General Code, to appropriate part of the said land held by the cemetery corporation in excess of the 50 acre limitation. Held: That the cemetery corporation was entitled under General Code, § 10093, to hold land in excess of 50 acres but not in excess of the statutory limitation, and to secure an injunction preventing the board of education from appropriating any part of said land.

ty.

"1. The plaintiff was incorporated by a special act of the General Assembly, passed March 18, 1839, volume 37, Ohio Laws, p. 373, which has not been amended, and which among other things provided that "The directors shall have power to purchase and hold such quantity of land in Akron, or in the vicinity of Akron, or partly in each, as they shall deem proper for the purpose of a cemetery, not exceeding fifty acres, and to dispose of the same in such manto the objects of this charter,' but said charner as they shall judge proper, having regard ter did not authorize plaintiff to acquire property by appropriation. In pursuance of said act plaintiff organized and since said date has

actively functioned and carried out all the purposes set out in its said special charter, and is now so doing.

"2. In pursuance of said act, said plaintiff purchased from time to time various quantities of land, and has held the same for cemetery purposes or for burial grounds since said parcels were so acquired; that the total acreage acquired is 57.25 acres, but that the total acreage acquired by it did not amount to 50 acres until after the year 1880; that of this entire quantity of land, 12.91 acres were acquired by appropriation in December, 1880, but the land sought to be appropriated by the defendant is not included in any of the land so acquired by appropriation.

"3. The 1.94-acre tract of land sought to be appropriated is taken from the last three tracts of land acquired by plaintiff, which aggregate 2.51 acres, which acquisition of said three tracts took place in the years 1884 and 1885, and said land sought to be appropriated is necessary for the complete enjoyment of the purposes of said plaintiff.

"4. The appropriation by the defendant would destroy entirely the use of said 1.94 acres of Error to Court of Appeals, Summit Coun- land for cemetery purposes, and would devote the same to purposes inconsistent with the pur

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 144 N.F.-8

poses for which it was acquired by said plaintiff.

H. M. Hagelbarger, Director of Law, and C. T. Moore, Asst. Director of Law, both of Akron, for plaintiff in error.

Jonathan Taylor, of Akron, for defendant in error.

"5. The 1.94-acre tract in question was not improved by plaintiff, that is, it was not actually laid out in lots, neither did the plaintiff make avenues, alleys, or paths in said tract, nor plant nor embellish any portion of said tract; and no graves or lots for graves were ever ALLEN, J. During the course of this platted or sold in said tract, nor were any opinion the plaintiff in error will be referred burials made in said tract. to as the Board of Education, and the de"6. The tract sought to be appropriated lies fendant in error as the Cemetery Corporain the extreme northwest corner of the cemetion. tery property of the plaintiff, and was acquired more than 25 years before the building of the It was in the year 1880 that the Cemetery schoolhouse of the plaintiff, and said school-Corporation acquired land in excess of 50 house is located not only adjoining the prop- acres. At that time the general law pererty of the plaintiff but immediately adjoining mitted cemetery corporations to hold land another cemetery actively used for burial pur- not in excess of 100 acres. R. S. § 3571; G. C. poses; that on October 14, 1914, plaintiff, with- § 10093. The section has since been amendout compensation being asked or received there- led to permit cemetery corporations to hold for, temporarily leased said 1.94-acre tract to land not in excess of 640 acres. 109 Ohio the defendant for use as a playground in con

nection with its West High School, and de-Laws, p. 172. The legal question involved fendant has occupied and used said tract ever in this case is the same under the statute since the beginning of said lease, and in ac- with the 100-acre limitation or as amended, cordance with the terms of said lease has con- and is as follows:

structed a fence between it and the remainder [1] Does a cemetery corporation incorof the property held by plaintiff for cemetery porated in the year 1839, under a special act purposes, and has filled in with earth the low which provided that the corporation should ground on said 1.94-acre tract which has been have the power "to purchase and hold land used as a part of defendant's school yard. The not exceeding fifty acres" for cemetery purdefendant desires to appropriate the property of the plaintiff for playground purposes. poses, but which gave no power of appropria"7. Under the general law, cemetery associa- tion to the said corporation, by appropriating tions were authorized to acquire property for land subject itself to the general law and cemetery purposes by appropriation and to ac- thereby secure the right to avail itself of quire and hold for cemetery purposes not ex- the provisions of section 10093, General Code, ceeding 100 acres of land, and said laws pro- which extends the limitation upon the amount vided that the plaintiff could cease to act under of land which may be held for cemetery purits special charter and be governed by said gen- poses by a cemetery corporation, and hence eral law when a certified copy of its acceptance

of the provisions of the general law was filed become enabled to secure an injunction to with the secretary of state; that plaintiff did prevent a board of education from approprinot file such certificate, but thereafter it did ating part of the land which it holds for acquire and hold land for cemetery purposes in cemetery purposes in excess of 50 acres, but excess of 50 acres, some of which was so not in excess of the statutory limitation? thereafter acquired by appropriation proceed- The Board of Education does not contend ings, neither of which were authorized by its that the use of property for cemetery purcharter, and it thereby took action under and

in pursuance of the general corporation law poses is not a public use, and, in fact, many of the state and consented to have and exercise authorities are to be found decisive of that its franchise under said general corporation particular point. Evergreen Cemetery Ass'n law. All the land acquired by said plaintiff and v. City of New Haven, 43 Conn. 234, 21 Am. now held by it is and always has been held ex- Rep. 643; 1 Lewis on Eminent Domain (3d clusively for burial purposes, and in no wise Ed.) § 273. with a view to profit.

"8. Said cemetery is the principal burying house, or a market." Brewer, J., in Ceme"A cemetery is as public a place as a courtground for the people of the city of Akron, and the land held by it for cemetery purposes is tery Association v. Meninger, 14 Kan. 312. nearly exhausted, and at the present rate of burials in said cemetery it will all be actually in use for burial purposes within a few years. "Conclusions of Law.

The public character of this particular cemetery is emphasized by provisions in section 12 and section 13 of its charter, which read, respectively:

"That the defendant not having been especially authorized to appropriate property ac"Nothing in this act shall be so construed as quired for and devoted to a public purpose, to prevent the right of poor persons who are such as this is, and said property being espe- unable to pay from being interred in said cemecially exempt from appropriation for any other purpose, is not entitled to appropriate the property sought by it to be appropriated in this proceeding."

The case comes into this court upon mot'on to certify the record.

tery.

"This act shall be deemed and considered a public act and shall be construed benignly in favor of said corporation."

The act further provided that the corporation should have the power to purchase

(144 N.E.)

and hold land for cemetery purposes not ex- | judge, or court of insolvency of the proper counceeding 50 acres. ty. Thereupon the same proceedings of appropriations shall be had which are provided for the appropriation of private property by municipal corporations."

At the time the appropriation proceeding enjoined by the present action was instituted, the Cemetery Corporation owned 57.25 acres. The 50-acre limitation was exceeded by the corporation in the year 1880. The 1.94 acres sought to be appropriated are a part of the three tracts of land last acquired, and were acquired after the maximum acreage specified in the special act of incorporation, to wit, 50 acres, had been reached. This land had not been laid out nor platted as lots nor prepared for burial or cemetery purposes, and in fact has been leased to the Board of Education as a playground for several years prior to the commencement of the appropriation case.

Section 10093, General Code: "A company or association incorporated for cemetery pur poses may appropriate or otherwise acquire and may hold, not exceeding six hundred and forty acres of land; also, take any gift or devise in trust for cemetery purposes, or the income from such gift or devise according to the provisions of such gift or devise, in trust, all of which shall be exempt from execution and from and shall be exempt from taxation, if held exbeing appropriated for any other public purpose, clusively for burial purposes, and in no wise with a view to profit."

The Board of Education claims that under

Injunction will lie, however, in a proper the special act of March 1, 1839, the direccase to prevent appropriation of grounds tors of the Cemetery Corporation have exheld, used, or occupied as a cemetery wheth-ceeded their powers, and that the corporaer the specific land has been used for burial tion has no right to hold land for cemetery

or not. McCann v. Trustees of Mt. Gilead Cemetery, 166 Ind. 573, 77 N. E. 1090. In this case a railroad company was about to construct a railroad over the east part of a cemetery, but not on nor over the part whereon the graves were located. The statute provided that no person or corporation should locate or construct a railroad on any real estate held, used, or occupied as a cemetery, and the court says at page 575 (77 N. E. 1091):

purposes in excess of 50 acres, and hence has no right to enjoin the appropriation of the land sought for a playground.

its appropriation of real estate in 1880 it The Cemetery Corporation urges that by has subjected itself to the general law, and hence can avail itself of the provisions of section 10093, above quoted, which extend the acreage limitation.

It is conceded that the present holding, while it exceeds the acreage limitation of the "This protects not only that part of the cem- special charter, does not exceed the limietery where there are graves but the part tation of either the original general statintended for burials in the future, and in-ute or its present amended form. cludes all reasonable additions to an existing cemetery, even though a part thereof is not

The contentions above stated are grounded occupied by graves, but is held for cemetery upon the following sections of the general purposes."

The Court of Appeals found that the land involved herein was held for cemetery purposes, and hence the fact that the land had not yet been prepared for burial purposes is immaterial.

law:

Section 8731: "Corporations created before the adoption of the present Constitution, which have not, by election or some other act, come to be governed by laws since passed, shall be governed and controlled by the laws then in force, and the valid modifications thereof since or herein enacted. 4 Other corporations now existing or hereafter created shall be governed and controlled by the provisions of this title. (R. S. § 3232.)"

Price v. Methodist Episcopal Church, Ohio, 515, is not in point upon this question, for in that case the land was purchased, not for a burying ground, but for a church.

The Code sections which particularly apply to this case are as follows:

Section 7624, General Code: "When it is necessary to procure or enlarge a school site, or to purchase real estate to be used for agricultural purposes, athletic field or play* ground for children, or for the purpose of erecting and maintaining buildings to be used as homes or houses for public school teachers, when the cost of such erection has been con

tributed by private donations or for the purpose of providing an outlet to dispose of sewage from a school building or grounds, and the board of education and the owner of the property needed for such purposes are unable to agree upon the sale and purchase thereof, the board shall make an accurate plat and description of the parcel of land which it desires for such purposes, and file them with the probate

Section 8732: "A corporation created before the adoption of the present Constitution, and now actually doing business, may accept any of When a certified the provisions of this title. copy of such acceptance is filed with the secretary of state, so much of its charter as is inconsistent with the provisions of this title is hereby repealed. (R. S. § 3233.)"

Section 8736: "Corporations created before the adoption of the present Constitution, which take any action under or in pursuance of this to have consented, and be held to be a corpotitle, shall thereby and thereafter be deemed ration, and to have and exercise all its franchises under the present Constitution and the

laws passed in pursuance thereof, and not oth

erwise."

The title referred to is tiue 9, of part 2, General Code, which deals with the subject

of private corporations and includes sections | charters inconsistent with the provisions of said 8623 to 10212, General Code. act."

Under the above sections, corporations incorporated under special act prior to the adoption of the Constitution of 1851 become subject to general laws since enacted in one of three ways:

(1) By filing a certificate of acceptance with the secretary of state.

(2) By election or some other act. (3) By taking "any action under or in pursuance of this title."

The Dartmouth College Case (Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629) is quoted by the Board of Education in this connection, but it does not apply. There is no attempt here upon the part of the Legislature to change the charter of the Cemetery Corporation. This is a case in which the corporation changes its own charter by its own act under the specific provisions of the statutes thereto applying. In compliance with the privilege offered it by the law, the corporation acts under part 2, title 9, of the General Law, and thus becomes subject thereto.

It is conceded that the Cemetery Corporation has not filed the certificate of acceptance with the secretary of state; but has it made an election or performed, in the words of the statute, "some other act" by which "it has come to be governed by [2-4] Moreover, we have here an instance laws since passed"? This phrase is very in which the Board of Education seeks to broad and may perhaps indicate that any appropriate property already devoted to a positive action taken by the corporation public use. Because of this public use the which shows an intent on the part of the property under the law is "exempt from execorporation to operate under the general stat-cution, from taxation, and from being aputes would constitute at least a quasi elec-propriated to any other public purpose." tion and bring the corporation under the Section 10093, General Code. general law. However, it is not necessary to decide whether this somewhat indefinite phrase was complied with, for the question is concluded by considering the third method by which a corporation may become subject to the general laws, which is by taking "any action under or in pursuance of this title." Has the corporation taken any such action?

In the year 1880, as shown by the record, the corporation appropriated land under section 10093, which is included in the title specified. The special charter gave the corporation no such power. Certainly by exercising this power with which cemetery corporations were invested by the general law, and with which this particular corporation was not invested under its charter, the corporation "took action" under part 2, title 9. It also thereby elected to be governed by the general corporation law, and is hence entitled to avail itself of the exemption in section 10093, General Code, which, under the recent amendment, extends to 640 acres. Authority in favor of this contention is to be found in the case of C., H. & D. R. Co. v. Cole, 29 Ohio St. 126, 23 Am. Rep. 729, in which the court held that

"Railroad companies incorporated prior to the adoption of the constitution of 1851, and which avail themselves of the twenty-fourth section of the general corporation act of 1852 (S. & C. Stat. 281), either by taking leases of the roads of other companies, or by leasing their own roads to other companies, are to be regulated as thereby accepting a 'provision' of said act, within the meaning of its seventy-first section, and relinquishing all rights under their

Before property appropriated to a public use can be appropriated to another public use, which will later materially interfere with the original use, or be partly destructive thereof, it should be made to appear clearly that the same is necessary and not destructive of the public use to which the land is already devoted. C., S. & C. R. Co. v. Village of Belle Center, 48 Ohio St. 273, 27 N. E. 464; City of Cincinnati v. L. & N. R. Co., 88 Ohio St. 283, at page 293, 102 N. E. 951. The record does not establish clearly that this appropriation is necessary. The finding of facts of the Court of Appeals states that the appropriation will be destructive of the public use to which the land is devoted.

Power to make this second appropriation of property already devoted to a public use is granted to the Board of Education, if granted at all, only as a general power under section 7624, General Code. Express power to take this land, which by statute is exempt from appropriation, is not granted. But land exempt from appropriation cannot be taken under a mere general power of appropriation. Upon this one ground, if no other ground existed, the contention of the Board of Education must be overruled. State ex rel. Atty. Gen. v. Cincinnati Cent. Ry. Co., 37 Ohio St. 157, at page 176. Judgment. of the Court of Appeals affirmed. Judgment affirmed.

MARSHALL, C. J., and JONES, MATTHIAS, and DAY, JJ., concur.

WANAMAKER, J., not participating.

(144 N.E.)

BOARD OF COM'RS OF CRAWFORD to certify the record.
COUNTY et al. v. GIBSON et al.
(No. 18170.)

(Supreme Court of Ohio. May 13, 1924.)

(Syllabus by the Court.)

Error to Court of Appeals, Crawford within the county; they also provide that County.

John E. Gibson and another appeal. Judg-provement" used in sections 6862 to 6878, ment on verdict against vacation was affirmed by the court of common pleas and also by the Court of Appeals, and the Commissioners bring error. Affirmed.-[By Editorial Staff.]

Error was prosecuted in the court of com"4. The order dismissing or refusing to grant mon pleas to reverse the verdict and judg-provement." 106 v. 583, § 38; R. S. 4688. the prayer of the petition for the proposed imment against vacation. The judgment was affirmed in the court of common pleas and It is in brief the contention of the plainwas also affirmed by the Court of Appeals. tiffs in error that, as sections 6890 and 6891

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes