{ "id": 8575602, "name": "OVER-LOOK CEMETERY, INC. v. ROCKINGHAM COUNTY", "name_abbreviation": "Over-Look Cemetery, Inc. v. Rockingham County", "decision_date": "1968-04-10", "docket_number": "No. 767", "first_page": "467", "last_page": "471", "citations": [ { "type": "official", "cite": "273 N.C. 467" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "91 S.E. 2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "681" } ], "opinion_index": 0 }, { "cite": "243 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626028 ], "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0525-01" ] }, { "cite": "116 S.E. 2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "477" } ], "opinion_index": 0 }, { "cite": "253 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622560 ], "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0074-01" ] }, { "cite": "85 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276876 ], "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/nc/85/0051-01" ] }, { "cite": "70 S.E. 2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625730 ], "opinion_index": 0, "case_paths": [ "/nc/235/0509-01" ] }, { "cite": "112 S.E. 2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "533" } ], "opinion_index": 0 }, { "cite": "251 N.C. 775", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627484 ], "pin_cites": [ { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0775-01" ] }, { "cite": "193 S.E. 657", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "212 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607840 ], "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/nc/212/0300-01" ] }, { "cite": "12 S.E. 2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "272" } ], "opinion_index": 0 }, { "cite": "218 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624205 ], "pin_cites": [ { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nc/218/0718-01" ] } ], "analysis": { "cardinality": 505, "char_count": 9733, "ocr_confidence": 0.574, "pagerank": { "raw": 1.4116524714850857e-07, "percentile": 0.6470844439193173 }, "sha256": "dc107a030ff6443200ee1f599926543be704d5846a5da1923975c637caabf938", "simhash": "1:1916d296c5224c01", "word_count": 1574 }, "last_updated": "2023-07-14T20:52:42.272754+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HusKiNS, J., took no part in the consideration or decision of this case." ], "parties": [ "OVER-LOOK CEMETERY, INC. v. ROCKINGHAM COUNTY." ], "opinions": [ { "text": "Bobbitt, J.\nG.S. 105-296, in pertinent part, provides: \u201cThe following real property, and no other, shall be exempted from taxation: . . . (2) Real property, tombs, vaults, and mausoleums set apart for burial purposes, except such as are owned and held for purposes of sale or rental. ...\u201d Unless exempted by this statute, plaintiff\u2019s real property is subject to ad valorem taxation by defendant.\n\u201cStatutes exempting specific property from taxation because of the purposes for which such property is held and used, are and should be construed strictly, when there is room for construction, against exemption and in favor of taxation.\u201d Harrison v. Guilford County, 218 N.C. 718, 721, 12 S.E. 2d 269, 272, and cases cited. However, the rule of strict construction does not require fhat the statute \u201cbe stintingly or even narrowly construed.\u201d State v. Whitehurst, 212 N.C. 300, 303, 193 S.E. 657, 659. In Seminary, Inc., v. Wake County, 251 N.C. 775, 782, 112 S.E. 2d 528, 533, Winborne, C.J., referring to G.S. 105-296(4), said: \u201cThe words used in the statute must be given their natural or ordinary meaning.\u201d\nThe words used in G.S. 105-296(2), when given their ordinary meaning, are clear and require no construction. The statute distinguishes between real property \u201cset apart for burial purposes,\u201d which is exempt, and that \u201cowned and held for purposes of sale or rental,\u201d which is not exempt. Obviously, plaintiff\u2019s property will not be used by plaintiff for burial purposes. It is owned and held by plaintiff for sale to purchasers who in turn will use it for burial purposes. When the words, \u201cset apart for burial purposes,\u201d and the words, \u201cowned and held for purposes of sale or rental,\u201d are considered contextually, we are of opinion, and so decide, that the exemption contemplated by G.S. 105-296(2) refers only to real property presently in use for burial purposes and property owned and held by persons for their use for burial purposes. Since plaintiff\u2019s property is not held for its use for burial purposes but solely for the purpose of sale to others, the conclusion is inescapable that plaintiff\u2019s said property does not fall within the statutory exemption.\nSince plaintiff relies largely on an excerpt (quoted below) from the opinion in Cemetery Association v. Raleigh, 235 N.C. 509, 70 S.E. 2d 506, it is appropriate to draw into sharp focus the question there presented and decided.\nThe (1869) charter of the Raleigh Cemetery Association contained this provision: \u201cThat the real estate of said corporation, and the burial plots conveyed by said corporation to individual proprietors, shall be exempt from assessment and taxation, . . .\u201d The property involved consisted of 31.3 acres of land (with frontage on two streets) owned and held by the plaintiff for cemetery purposes. The plaintiff, relying on said charter provision, sought to restrain the defendant \u201cfrom making a local improvement assessment against its property ...\u201d A judgment restraining the defendant, in accordance with the plaintiff\u2019s prayer, was reversed by this Court.\nOur opinion states: \u201cThe question posed for determination is simply this: Does the above provision in the plaintiff\u2019s charter exempt its real property, held for burial purposes, from local improvement assessments? The answer must be in the negative.\u201d The charter provision expressly exempted the real estate o/ the plaintiff from liability for ad valorem taxes. The only question was whether it exempted the plaintiff\u2019s real estate \u201cfrom local improvement assessments.\u201d\nPlaintiff quotes this excerpt from the opinion: \u201cReal 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.\u201d Plaintiff stresses the italicized portion.\nDecision in Cemetery Association v. Raleigh, supra, was not based upon and did not involve an interpretation of G.S. 105-296 (2). Reference thereto was incidental. Apparently, through inadvertence, the opinion uses the clause, \u201cunless the property is held for personal or private gain,\u201d instead of the clause in G.S. 105-296(2), namely \u201cexcept such as are owned and held for purposes of sale or rental.\u201d In any event, \u201c(i)t is but an expression of opinion upon an incidental question not presented in the appeal, and has not the force of an adjudication upon the point.\u201d Miller v. Lash, 85 N.C. 51, 56. Accord: Muncie v. Insurance Co., 253 N.C. 74, 79, 116 S.E. 2d 474, 477; Hayes v. Wilmington, 243 N.C. 525, 536, 91 S.E. 2d 673, 681.\nWhether G.S. 105-296(2) should be amended by substituting the words, \u201cunless the property is held for personal or private gain,\u201d or words of similar import, for the words, \u201cexcept such as are owned and held for purposes of sale or rental,\u201d is a matter for determination by the General Assembly. As now written, G.S. 105-296(2) does not exempt plaintiff\u2019s property from ad valorem taxation. Hence, the judgment is affirmed.\nAffirmed.\nHusKiNS, J., took no part in the consideration or decision of this case.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Fagg, Fagg & Nooe for plaintiff appellant.", "McMichael & Griffin and David M. Blackwell for defendant ap-pellee." ], "corrections": "", "head_matter": "OVER-LOOK CEMETERY, INC. v. ROCKINGHAM COUNTY.\n(Filed 10 April 1968.)\n1. Taxation \u00a7 23\u2014\nStatutes exempting specific property from taxation because of the purposes for which such property is held and used are to be strictly construed, when there is room for construction, against exemption and in favor of taxation, but this rule of strict construction does not require that the statute be stintingly or even narrowly construed.\n2. Statutes \u00a7 5\u2014\nThe words of a statute must be given their natural or ordinary meaning.\n3. Taxation \u00a7\u00a7 19, 25; Cemeteries \u00a7 1\u2014\nProperty owned by a nonprofit cemetery association for sale to purchasers for their burial purposes is not exempt from ad valorem, taxation, since the exemption contemplated by G.S. 105-296(2) refers only to real property presently in use for burial purposes or to real property owned and held by persons for burial purposes and not for the purpose of sale or rental to others.\n4. Appeal and Error \u00a7 68\u2014\nLanguage in a prior decision which is but an expression of opinion upon an incidental question not presented in the appeal does not have the force of adjudication.\nHuskins, L, took no part in the consideration or decision of this case.\nAppeal by plaintiff from Lupton, J., April 10, 1967 Civil Session of RocKINGham, docketed and argued as No. 767 at Fall Term 1967.\nPlaintiff, a North Carolina corporation, under authority of G.S. 105-267, instituted this action in the Recorder\u2019s Court for Leaksville Township, Rockingham County, N. C., against Rockingham County for a refund of $188.78 (plus interest and costs) paid as 1964 taxes on its property in Overlook Cemetery, Leaksville Township, Rock-ingham County, N. C., alleging its said property is exempt from ad valorem taxation under G.S. 105-296(2).\nUpon trial in said Recorder\u2019s Court, judgment for plaintiff was entered and defendant appealed. When the case came on for trial de novo in the superior court, the parties waived a jury trial and submitted the case on the stipulated facts summarized below.\nPlaintiff\u2019s property in Overlook Cemetery consists of: (1) 880 grave spaces (originally 5,016) in the old portion; (2) 1,234 spaces (originally 1,456) in the Price addition; and (3) an unmapped and undeveloped section containing 6.328 acres.\nPlaintiff has no capital stock. Its (1929) charter, in addition to prescribing the qualifications for membership, sets forth, inter alia, (1) that no member shall have any beneficial interest in plaintiff\u2019s assets, and (2) that plaintiff\u2019s assets are to be administered for the beautification and perpetual care of Overlook Cemetery. A Board of Directors, which has charge of its affairs, is elected by the members.\nNo officer or director received any compensation except one director. He was compensated for his services as caretaker. Two funeral directors act as selling agents. Plaintiff pays a commission of ten dollars per grave. It pays to Gar Price the sum of ten dollars whenever it sells a grave in the Price addition.\nProceeds from the sale of grave spaces and income from investments constitute plaintiff\u2019s sources of income. Prior to August, 1965, a grave space sold for sixty dollars. Since then a grave space has sold for one hundred dollars, the purchaser receiving a discount of ten percent if payment is made within ninety days. Twenty-five percent of the receipts are paid to Wachovia Bank and Trust Company, trustee, pursuant to a trust agreement. Other funds are deposited in plaintiff\u2019s savings account(s). Plaintiff complies with the statutory requirements for a perpetual care cemetery.\nExhibits showing plaintiff\u2019s sales, receipts, disbursements, investments, etc., are included in the record.\nPlaintiff\u2019s real property was not assessed for ad valorem taxes for the years 1929-1962. \u201c(I)n 1963, a tax re-evaluation year,\u201d it was assessed; but plaintiff \u201cwas relieved of the payment\u201d of the taxes by the Board of County Commissioners. In 1964, the year directly involved in this action, and in subsequent years, it has been assessed and taxed.\nThe court entered judgment that plaintiff have and recover nothing of defendant and that plaintiff be taxed with the costs. Plaintiff excepted and appealed.\nFagg, Fagg & Nooe for plaintiff appellant.\nMcMichael & Griffin and David M. Blackwell for defendant ap-pellee." }, "file_name": "0467-01", "first_page_order": 503, "last_page_order": 507 }