such cemeteries or burial-places shall be exempt from public taxes, so long as the same shall remain dedicated for the purpose of a cemetery or burial-place for the dead"

By § 1 of the Stat. 1855, ch. 237 (which was passed and took effect on April 27, 1855), the Woodlawn Cemetery is declared to be such a corporation; and by § 4 the provision of the Stat. of 1841, ch. 114, § 7, above quoted, “shall apply to all the shares, property and effects of said corporation, so long as its real estate shall remain dedicated to the uses and purposes of a cemetery or burial-place for the dead."

By the Stat. of 1855, ch. 257 (passed three days later), § 3,“ no land other than that now used or appropriated in any town in this Commonwealth for the purpose of a burial-ground shall be used by any person or persons for the burial of the dead, unless permission is granted by the town." Section 2 contains a similar provision as to cities. And by § 10 nothing in this act shall prevent inhabitants of any town from using or erecting a tomb on their own land for the exclusive use of their own family.

These provisions are substantially re-enacted in the General Statutes. By ch. 11, § 5, cl. 8, "cemeteries, tombs and rights of burial, as long as the same shall be dedicated for the burial of the dead," are exempted from taxation. And by ch. 28, § 5, "except in the case of the erection or use of a tomb on private land for the exclusive use of the family of the owner, no land other than that already so used or appropriated, shall be used for the purpose of burial, unless by permission of the town, or of the mayor and aldermen of the city in which the same is situated."

No land can be deemed to be "dedicated" for the purposes of a cemetery or burial-place for the dead, so as to be exempt from taxation, or “used or appropriated" for the purpose of a burial-ground, so as to entitle the owner to use it for that purpose for the future without municipal permission, which has not been devoted or set apart, and some active measures taken toward preparing the ground for a burial-place. A mere dedication or appropriation on paper is not enough.

It appears by the facts agreed, that, at the time of the passage of the Stat. of 1855, ch. 257, the Mount Lebanon Cemetery, which had purchased the Corbett farm, and given a mortgage back to the vendor to secure the payment of part of the purchase money, had merely voted to appropriate the same to the purposes of a cemetery or burial-place, and had not in fact so appropriated it, nor done any act upon the land toward such appropriation. At the time of the passage of the General Statutes, the vendor held the land, under a foreclosure of his mortgage for a breach of condition unaffected by any appropriation or intention to appropriate it to the purposes of a cemetery.

The Woodlawn Cemetery, the present plaintiff, acquired its title to the farm eight years afterwards. But, even if the plaintiff could avail itself of the previous holding of a farm by the Mount Lebanon Cemetery, the facts show that it has never been actually used or appropriated for a burial-ground within the meaning of the statutes.

It is expressly agreed in the case stated, that no part of this land has been used for burials, or divided off or laid out into lots or permanent avenues, and that no attempt has been made to sell it for purposes of burial. The use of a parcel of land for growing trees or shrubs, cutting turf, and depositing stone, wood and other materials, to be ultimately used in preparing and ornamenting a cemetery, is

no dedication of such land itself for the purposes of a cemetery or burial-place for the dead.

The cases cited by the learned council for the plaintiff are quite distinguishable from this. Those of Wesleyan Academy v. Wilbraham, 99 Mass. 599, and Massachusetts General Hospital v. Somerville, 101 Mass. 319, arose under the broader clause of the tax act, Gen. Stats, ch. 11, § 5, cl 3, which exempts all real estate occupied by charitable institutions "for the purpose for which they were incorporated"; and in each case the lands held to be exempted were occupied by such an institution for the purposes specified in its charter. The extent of the decision in Balch v. County Commissioners, 103 Mass. 106, was, that it was no objection to the validity of an order of the county commissioners, under the Stat. of 1866, ch. 112, authorizing land to be taken for the enlargement of a burial-ground, that part of the land taken was to be used for a passage way from the burial-ground to a public street.

The charter of the plaintiff corporation did not exempt lands held by it for burial purposes from the control of the Legislature in the exercise of its police power for the security of the public health and comfort. Brick Presbyterian Church v New York, 5 Cowen, 538. Coates v. New York, 7 Cowen, 585. Sohier v. Trinity Church, 109 Mass. 1, 21. Commonwealth v. Intoxicating Liquors, 115 Mass. 123. The provisions of the Stat. of 1855, ch. 257, §§ 2, 3, and Gen. Stats., ch. 28, § 5, are a reasonable and lawful exercise of the power of the Legislature Although the former speaks only of lands" used by any person or persons," yet those words by the Rev. Stats., ch. 2, § 6, cl. 13, and the Gen Stats., ch. 3, § 7, cl. 13, may, and in this case must, extend to corporations, in order to give them reasonable effect; for, at the time of their passage, very few, if any, lands in this Commonwealth were held by individuals for burial purposes other than private tombs, which are expressly excepted.

The article in the warrant under which the town meeting in 1869 was held was limited to the collection of the tax already assessed on the Corbett farm, and did not include any question of granting permission to use it for the purpose of burial. The permission granted by the committee appointed at that meeting to the plaintiff to use the land for that purpose was therefore unauthorized and of no legal effect. Even a permission from the town so to use the land would not exempt it from future taxation until it had been actually dedicated to the purposes of a burial-place

The Corbett farm, not having been so dedicated, is not exempt from taxation under the statutes of the Commonwealth. Judgment for the defendant. Woodlawn Cemetery v. Everett, 118 Mass. 354.

The amount of real and personal estate, in addition to the meetinghouse, which may be held by a religious society, is limited to so much as is necessary for its objects and no more. Pub Stats., ch 38, § 28.

The real estate belonging to such institutions as are mentioned in the third division of section 5 of chapter 11 of the Public Statutes, purchased with a view of removal thereto, shall not be exempt from taxation for a longer period than two years until such removal takes place. Pub. Stats., ch. 11, § 5, cl. 3.

No taxes shall be assessed in any city or town for State, county or town purposes upon the shares in the capital

stock of certain corporations, etc., mentioned in section 57, chapter 13 of the Public Statutes, for any year for which they pay the tax on their corporate franchise or property, but such shares shall be taxable for school district and parish purposes. See Pub. Stats., ch. 11, § 4; ch. 13, §

57.

Land purchased in fee or otherwise taken by a city by authority of the Legislature for the purpose of supplying the city with pure water, and used for that purpose only, is justly taken in the exercise of the right of eminent domain, and is therefore not liable to taxation. Wayland v. County Commissioners, 4 Gray, 500.

Citizens of this Commonwealth are not taxable here for shares of stock owned by them in national banking associations which are located in other States. See the following decision:

The United States statute of 1864, ch. 106, § 41, makes unlawful the imposing by, or by the authority of, a State of a tax on shares owned by an inhabitant thereof in the capital stock of a national banking association organized under that statute and located in another State. Flint v. Boston, 99 Mass. 141 (1868).

The personal estate of an unmarried woman is liable to taxation in this Commonwealth, although, by the Constitution, women are not allowed to vote. Wheeler v. Wall, 6 Allen, 558 (1863).

An accumulating fund held in trust for the future benefit of an incorporated educational institution is, by force of the Pub. Stats., ch. 11, § 5, cl. 3, exempt from taxation. Williston Seminary v. County Commissioners, 147 Mass. 427.

Real estate, which a corporation organized for the education and religious instruction of children owns and permits to be used as purely incidental to the management of a parochial school situated on another's adjoining property, and entirely controlled and supported by others than itself, is not exempt from taxation under the Pub. Stats., ch. 11, § 5, cl. 3. St. James Educational Institute v. Salem,

153 Mass. 185.

A cemetery corporation was authorized by its act of incorporation to devote a limited tract of land, which was thereby exempted from taxation, to a rural cemetery, and to erect thereon a dwelling-house with suitable appendages. Afterwards it bought other land on the opposite side of a highway, upon which stood a dwelling occupied rent free by its superintendent, whose salary included this privilege, and two small barns for the horse, carts, and tools used in caring for the cemetery grounds. Subsequently a special act authorized the corporation to take and hold property by purchase or otherwise, any limitation in the original act notwithstanding, to be devoted "exclusively to the purposes connected with and appropriate to the objects of the corporation." Held, that by the latter act the purchase theretofore made was confirmed, and the exemption from taxation extended to the land so purchased. Rural Cemetery v. County Commissioners, 152 Mass. 408.

FIRE DISTRICTS.

See DISTRICT TAXES.

HIGHWAYS.

Highway Tax Modified.

All laws which direct and authorize towns to vote sums for the repairs of highways and town ways, to be paid in labor and materials, and which provide for the assessment and collection thereof, are repealed.

Towns shall grant and vote such sums of money as are necessary for making and repairing highways and town ways, and such money shall be carefully and judiciously expended in making and repairing said ways by the road commissioners or by the surveyors of highways, each in his own district, when the town is divided into highway districts, and in such cases under the direction of the selectmen. Pub. Stats., ch. 52, § 3. See Westhampton v. Searle, 127 Mass. 502.

HOUSES OF PUBLIC WORSHIP.

See RELIGIOUS SOCIETIES.

INCOMES.

How far Taxable.

Section four of chapter eleven of the Public Statutes provides that the income subject to taxation shall be only so much as exceeds two thousand dollars, and which has accrued to any person during the year ending on the first day of May of the year in which the tax is assessed.

A case in the supreme court involving the question of taxation of income in part derived from stock in trade used in business and taxed, has been recently decided; and the opinion is here given in full:

Opinion of the Court.

AMES, J. The petitioner's complaint of the manner in which he has been taxed in the town of Medford, where he resides, is based entirely on the assumption that the income which he derives from his business as a member of the firm is derived from their "stock in trade," legally taxable and actually taxed in the city of Boston. On that ground he claims that the tax upon his income is assessed in violation of that clause of the statute which provides that "no income shall be taxed which is derived from property subject to taxation." Gen. Stats., ch. 11, § 4.

But it appears to us that the assumption on which the petitioner's case depends is a fallacy. The income from a profession, trade or employment, which is taxable under our system of laws, is an entirely different thing from the capital invested in the business or the stock of goods, in the purchase of which the whole or part of such capital may have been expended. The income meant by the statute is the income for the year, and is the result of a year's business. It is the net result of many combined influences, -the use of the capital invested, the personal labor and services of the members of the firm, the skill and ability with which they lay in or from time to time renew their stock, the carefulness and good judgment with which they sell and give credit, and the foresight and address with which they hold themselves prepared for the fluctuations and contingencies affecting the general commerce and business of the country. To express it in a more summary and comprehensive form, it is the creation of capital, industry and skill. The stock of goods that happened to be in the possession of the firm on the first day of May might be, and it is perfectly fair to assume would be, in the ordinary course of business, for the most part sold out and replaced by another stock; and in the course of the year this operation might be many times repeated. The income to which the statute refers does not mean merely the profits derived from the sale of the goods that happened to be on hand at the date of the tax, but the profits derived from the dealings and business of the firm for the year. It would not relieve the petitioner from any part of his tax, though it should be found that the goods on hand at the date of the tax had yielded no profit whatever, and had contributed absolutely nothing towards making up the sum which he reported to the assessors as his income from that business. It certainly is among possibilities that the business for the first part of the year may have been conducted, and the entire stock on hand on the first day of May may have been sold, at a loss, and yet that a favorable change in the markets at a later period may have overbalanced this loss, and made the result of the whole year a profitable one. And, even if it could be said that the "stock" of the firm taxable in Boston is meant by the statute to include the whole amount of the capital invested in its business, yet the profits of the business depend upon many elements, and are affected by many causes other than the mere use of capital. The tax which has been assessed upon the petitioner is not for an income derived from specific goods and merchandise, but for an income derived from the business of dealing commercially, in the like goods and merchandise, with such a degree of skill, judgment and good fortune that his share of the year's profits amounts to the sum which he returned as his income from business. We cannot doubt that this tax is allowed and justified by the laws of the State; and we see no reason for holding that the petitioner has been overtaxed.

Petition dismissed with costs. Wilcox v. County Commissioners of Middlesex, 103 Mass. 544 (1870).

The corporation counsel of the city of Boston has recently given an opinion on the taxation of incomes under Pub. Stats., ch. 11, § 4, which I have thought it advisable copy for the consideration of assessors.

to

The assessors of Boston have changed their practice în this regard in conformity with this opinion.