Under the constitutional and legislative provisions exempting "places of burial" from taxation, the land acquired by the cemetery corporation in the present case, under a deed containing a restriction that it was to be used as a cemetery for human beings and for no other purpose, was, under the facts stipulated in the record, exempt from taxation.

DECIDED DECEMBER 5, 1952 — REHEARING DENIED DECEMBER 19, 1952.

This was a money rule brought by Hill Crest Cemetery Inc., against J. W. Simmons, Clerk of the Fulton Superior Court as custodian of a $300 residue left by prior order of the court in his hands, pending determination of a claim for $197.36 for State and county taxes which had been filed against the petitioner Hill Crest Cemetery Incorporated, by T. E. Suttles, Tax Collector. The said claim covered taxes for seven years prior to the date of the levy, on a portion of the petitioner's property. A rule nisi was issued requiring Simmons and Suttles, who was made a party to the rule, to show cause why the fund should not be paid over to the petitioner. The clerk answered admitting the material allegations of the petition, and, further answering, alleged that he had no interest in the fund except to carry out the proper orders of the court. Suttles answered, alleging that the property of the petitioner in question was not exempt from taxes as claimed by the petitioner.

On the trial of the case the following facts were stipulated: "(2) The only issue to be determined in this case is whether or not the following described property, to-wit: All that tract or parcel of land lying and being in the City of East Point in Land Lot 166 of the 14th District of Fulton County, Georgia, and more particularly described as follows: . . was exempt from taxation by reason of being a place of burial within the meaning of that term as used in Article Seven, Section One, Paragraph Four of the Constitution of this State as set forth in Georgia Code (1933), section 2-5404, and the statute enacted pursuant thereto as codified in said Code, section 92-201.

"(3) It is agreed that the property in question constituted approximately one-half of a tract of land north of Connally (Formerly Chattahoochee) Avenue in the City of East Point, known as Hill Crest Cemetery, bisected by a road running north and south known as Stanton Road since about 1947.

"(4) That about all of the east half of said tract has been used for burial of the dead. . .

"(6) The owners of the cemetery opened and maintained a roadway from said Connally Drive north into said cemetery along the western fringe of the east half where the first burial lots were sold and bodies were interred, as a means of ingress and egress to and from places of burial in the cemetery.

"(7) Some fifteen years ago this roadway was extended through the entire tract north to Campbellton Road and opened up as a public street of East Point in about 1947 and now known as Stanton Road.

"(8) It is agreed that in a deed from Hill Crest Cemetery, Inc. to W. S. Davis and Della Van Wagener trading as Hillcrest Cemetery Park, dated November 18, 1932 (Deed Book 1774, p. 34) conveying the property here involved as described in paragraph 2 of this stipulation the following restrictive covenant running with the land was inserted, to wit: "The above described property is conveyed to parties of the second part, their heirs and assigns, for white cemetery purposes only, that is, for use as a cemetery for human beings of the Caucasian or white races, and for no other purpose. This deed is executed subject to the restrictions that no lot or grave or any part of said property shall ever be sold, rented or leased to or used by any person, firm or corporation except an individual of the Caucasian or white race,'" and upon the sale or lease or use of the property for any other purpose title to the said tract was to immediately revert to the grantors.

"(9) That all of said tract east of said Stanton Road has not been used for burial purposes yet, but is being gradually extended north, so that in the course of a short time it will all be occupied, and there will be no further room or space for burial purposes on the east side of said road.

"(10) No burials have ever taken place on the west side of Stanton Road, nor have any lots for burial purposes been sold or staked out for this purpose on the west side of Stanton Road.

"(11) That the property in question has been neither returned for taxes nor taxed since 1932, until the present claim was asserted by the present Tax Collector, nor has [have] any taxes been paid thereon in the last 20 years.

"(12) That Hill Crest Cemetery, Inc. was and is a bona fide cemetery corporation engaged in the business of conducting what is popularly known in East Point, Georgia, as Hill Crest Cemetery in which it opens graves, buries dead bodies of white persons in the burial places developed therein for a consideration; that it sells burial lots in said cemetery, and that said Hill Crest Cemetery, Inc., is engaged in business for profit."

The trial court entered an order granting the prayers of the plaintiff, and authorizing and directing the clerk of the court to pay to the plaintiff, Hill Crest Cemetery, Inc., $300, less any court costs that might be properly chargeable against the same. To this order the Tax Collector, T. E. Suttles, excepted, and filed his bill of exceptions to this court, assigning error on the said order.

WORRILL, J. (After stating the foregoing facts.)

The Constitution of 1877, article 7, section 2, paragraph 2 (Code, Ann., § 2-5002), authorized the legislature to except from taxation places of burial. The legislature, in pursuance of that constitutional authority, enacted in 1878 (Ga. L. 1878-9, p. 33; Code, § 92-201) that places of burial be exempt from taxation. The Constitution of 1945, article 7, section 1, paragraph 4, also authorized the legislature to make such exemption, and in pursuance of that authority the legislature enacted in 1946 (Ga. L. 1946, p. 12; Code, Ann. Supp., § 92-201) that places of burial be exempt from taxation. It is conceded that the land acquired by Hill Crest Cemetery Inc. in 1932 was for a cemetery, that the land on the east side of Stanton Road has been and was being so used at the time of the assessment for taxes of the land on the west side of the road, but that the latter, not having received any interments and no part thereof having been offered for sale for burial purposes, is not a place of burial within the constitutional and legislative provisions above mentioned. A "cemetery" is defined by Webster as "a place or ground set apart for the burial of the dead." It is, therefore, synonymous with graveyard, burial ground, and place of burial. Peterson v. Stolz, (Tex.Civ.App.) 269 S.W. 113, 117, citing 11 C. J. 50. While, as pointed out by the plaintiff in error, exceptions are to be strictly construed, the construction must not be strained or unreasonable. The land here involved is part of a larger area which was acquired by Hill Crest Cemetery Inc., under a deed containing a restriction that it was to be used as a "cemetery for human beings . . and for no other purpose." After its acquisition the corporation caused to be run through the entire area northwardly a road which subsequently became known as Stanton Road, bisecting the property into approximately two equal parts. It was later extended to Campbellton Road. All of the land on the east side of the road had admittedly been used for burial of the dead, and the purpose of running the road in the first instance was to afford "a means of ingress and egress to and from places of burial in the cemetery." (Italics ours.) It appears from the record that in a short time "there will be no further room or space for burial on the east side of the road." Hill Crest Cemetery Inc. was "a bona fide corporation engaged in the business of conducting what is popularly known in East Point, Georgia, as Hill Crest Cemetery, in which it opens graves, buries dead bodies of white persons in the burial places developed therein for a consideration," and which corporation "sells burial lots in said cemetery." In a growing community like East Point, a fact of common knowledge, where the increase in population must necessarily be accompanied by a like increase in deaths, manifestly it is a prudent and salutary practice on the part of one engaged in the business of providing burial places for the dead to anticipate such deaths and not to be suddenly faced with the awkward necessity of procuring appropriate space. Of course, if the land purchased and held be out of proportion to the real requirements, it might be questioned whether the excess land could be said to be held in good faith for future interment of the dead. But here, where it is not contended that any disproportion exists, no question of good faith is raised. It is admitted that in a short time the space on the east side of Stanton Road will be completely filled with interments. This road was constructed, not merely to afford ingress and egress to and from the east side, but to the west side as well. Apparently the acquisition of the land on the west side of the road was entirely consistent with a humane and sentimental regard for the needs of the dead. Conceivably, too, it may be a very practical and pardonable usage, while owning two portions of what is admittedly a cemetery or place for burial, to first develop and sell the lots on the east side for burial purposes, reserving to some future time, when the necessities require it, the use and care of the other side with appropriate expenditures. See St. Stanislaus Church Soc. v. Erie County, 275 N. Y. S. 84, 86 (2). The public policy to protect and encourage cemeteries arises out of the common wish of mankind to insure a fitting resting place for the dead, especially in crowded areas, while at the same time giving consideration to the safety of the living and the saving of the public from the burden of maintaining them at its expense. See, in this connection, State ex rel. City of St. Paul v. Dist. Court of Ramsey, 114 Minn. 287 ( 131 N.W. 327); Cave Hill Cemetery v. Gosnell, 156 Ky. 599 ( 161 S.W. 980); Evergreen Cemetery v. Beecher, 53 Conn. 551 ( 5 A. 353). It has been held that exemption from taxation by constitutional or statutory provision is not lost by reason of the fact that the cemetery does not contain graves or has not been platted into burial lots. City of Wichita v. Schwertner, 130 Kan. 397, 401 ( 286 P. 266).

As stated by the plaintiff in error in his brief in this court, it is the use of the property and not the ownership which exempts it from taxation, but this does not mean that use is to be determined merely by whether or not an interment has been made at the time it is sought to be taxed. The inquiry is: Has the property been committed to use as a cemetery and is it being held in good faith for that purpose? The restriction in the deed by which Hill Crest Cemetery Inc. acquired the property as effectually fixed its status or destiny while owned by a private individual or corporation as if it had been expressly dedicated by the grantor. So far as appears, the corporation has never attempted to commercialize any part of the property, and it has been held in the same status as it was conveyed to it, namely, "for use as a cemetery for human beings." As stated in 51 Am.Jur. 613, § 646: "Of course, the setting aside of any acreage for cemetery purposes, whether commercial or eleemosynary must be predicated on good faith, the acreage set aside or reserved for future use must not be disproportionate in extent to the population of the community to be served and the reasonable expectation of the service to be rendered." In Mount v. Yount, 220 Mo. App. 187, 193 ( 281 S.W. 119), where it was held that certain entombment space in a mausoleum in a cemetery was held to be "a burial ground in a public cemetery," it was said: "Counsel in their written argument say: `This land, it is true, was in the same enclosure with land being used as a public cemetery, but had not yet been platted as such, and had not yet been dedicated as such.' . . It is our conclusion that the failure of the city to plat that portion of its public cemetery upon which the community mausoleum was erected does not deprive the mausoleum of its status as a burial ground in a public cemetery." In Mountain View Cemetery Co. v. Massey, 109 W. Va. 473 ( 155 S.E. 546), where it was held that undeveloped and unsold portions of a cemetery held in reserve for interment purposes were exempt from taxation under a constitutional and legislative provision, it was said: "Recurring now to the suggestion that only the portions of a cemetery property which have been actually sold should be exempt from taxation, it will be observed that such construction of the statute might easily result in gross hardship in its operation. Portions assessed for taxation for a given year might very well be sold within a short time after assessment and actually put in use for burial purposes. If the tax were not paid, these very lots with dead bodies therein would be subject to sale to satisfy the tax."

The reasoning in the above-mentioned cases is adopted as sound, and the authority is sufficient for us to hold, as we do here, that the property in question was exempt from taxation under the Constitution and the statute. In addition, while there seems to be no case exactly in point in this State, Georgia Mausoleum Co. v. City of Dublin, 147 Ga. 652 ( 95 S.E. 233), is controlling in principle. We might have rested our decision on that case alone, but thought it pertinent and informative to set forth the pronouncements of different courts on the subject under consideration. In the Georgia case the following facts appeared in resisting a tax execution on certain unsold crypts. The City of Dublin conveyed a certain cemetery space to Georgia Mausoleum Company for the purpose of erecting thereon a mausoleum for the burial of the dead. The mausoleum was erected, but some of the crypts remained unsold at the time an execution issued and was levied. They could not legally be used except for burial purposes. This restriction applied to the ground upon which the mausoleum stood. The Supreme Court reversed the judgment of the trial court refusing an injunction against the taxing authority. It was held that the use to be made of the property and not the purchase and sale thereof determined the matter of taxation. Clearly the crypts which had not been disposed of were not being used for burial purposes, at the time of the execution, in the sense that interments had been made. However, the Supreme Court did not take the narrow view that use meant actual interment, but held that, since they were constructed for burial purposes, and not for the purpose of private or corporate income in commercial transactions, and could not be used for any purpose other than interment, they were exempt from taxation under the Constitution and legislative act in pursuance thereof. In reaching its conclusion it adopted the reasoning of Metairie Cemetery Assn. v. Board of Assessors, 37 La. 32, 35, to which it referred as authority. In that much-cited case it was held that "A cemetery set apart and used for burying the dead is a `place of burial' with the intendment" of the Louisiana constitution. In that case land, and not crypts, was involved as in the present case, and it was said: "In other words, it [a cemetery] is, in the very language of the constitution a `place of burial,' by which is meant undoubtedly a place dedicated and set apart for the burial of the dead. The attempt to restrict the meaning of the words of the constitution to the narrower import of tenanted graves, spots of ground actually occupied by buried corpses, is utterly vain. The words are to be interpreted according to the known habits and usages of the people, which are to congregate their dead in places set apart for that sacred purpose, encircled by holy influences and subject to regulations for preserving the decency, peace and sanctity of all their surroundings. What would be the security of those who venerate their dead if the tax gatherer might enter such scared precincts and sell, at public outcry, the land adjoining their tombs to some publican who might build thereon a barroom or a brothel? . . The obvious intention was to give a constitutional sanction and guarantee to such ancient and habitual exemptions. We have not a doubt that this cemetery, as a whole, is a `place of burial' within the intendment of the constitution. Then it is exempt from taxation, unless, under the proviso of the constitution, it is leased or used for purposes of private or corporate income or profit. That it is not leased for any purpose is fully proved. The evidence is equally perfect that it is not used for any other purpose than that of a cemetery, or for any purpose which yields any private or corporate profit or income. The sole fact, upon which is predicated the charge of use for corporate profit, is that the corporation sells plots of the ground to persons desiring to build tombs and bury their dead therein, at prices which, if all were sold, would yield a profit on the investment. But, it is to be observed that such sales do not, in any manner, change the use of the property but rather preserves and confirms the use and dedication as a place of burial."

In the present case, as above pointed out, the land which is on the west side of Stanton Road and which is sought to be taxed, was restricted to use as a cemetery. It is not contended that the corporation has used or attempted to use it for lease, rental, or any commercial purpose for profit. Nor can it be said as a matter of law that its purchase originally by the corporation was not appropriate to burial needs of the City of East Point as they might arise thereafter. Under the above-named authorities we hold that it was exempt from taxation.

Judgment affirmed. Sutton, C. J., and Felton, J., concur.