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Rosehill Cemetery Co. v. Lueder





APPEAL from the Circuit Court of Cook County; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding.


Rosehill Cemetery Company, a corporation, filed a complaint in the circuit court of Cook County against the Auditor of Public Accounts, and the Attorney General of the State of Illinois, and other parties, praying for a declaratory judgment to declare what rights or obligations, if any, the Cemetery Care Act of the State of Illinois, (Ill. Rev. Stat. 1947, chap. 21, pars. 64.1 to 64.24,) imposed upon it, and for a judgment declaring all perpetual care funds under its control, or deposited in the future, might be invested as heretofore, and to construe said Cemetery Care Act as not applying to the plaintiff; or, in the alternative, if held to apply to the plaintiff, and to its investments either past, present or future, it be declared void for a number of reasons, which cause it to violate the constitution of Illinois, and for an injunction against the Auditor of Public Accounts and the Attorney General from proceeding against plaintiff for failure to comply with said act.

The Attorney General and the Auditor of Public Accounts made a motion to strike upon the grounds that the complaint did not set forth anything to entitle the plaintiff to the relief prayed; and upon consideration of said motion the court allowed the same, and dismissed the complaint of the plaintiff for want of equity. The defendant Chicago Title and Trust Company filed an answer and cross complaint, but upon its own motion the cross complaint was dismissed without prejudice. Since the constitutionality of the act was directly involved and passed upon by the circuit court, the appeal comes directly to this court.

The complaint, which is rather lengthy, alleges that plaintiff was created by a special act of the General Assembly of Illinois on February 11, 1859. Briefly, such act authorized the corporation to acquire not to exceed five hundred acres of land in Lake View Township, Cook County, and to arrange for the disposal of burial lots on terms of permanent care, as might be agreed upon between it and the purchaser. In 1863, another special act of the legislature gave plaintiff the right to create a trust fund, by the collection of ten per cent of the proceeds of the sale of lots until it amounted to the sum of $100,000, which fund was to be kept and preserved for "all time to come" for maintaining and ornamenting the grounds, lots, memorials and other structures in the cemetery, so that they could continue as a cemetery ground forever.

The complaint further alleged that said fund now has therein more than $100,000; that said plaintiff also erected a mausoleum containing rooms and crypts for the burial of the dead, which contains over twenty-five hundred bodies, and that into such fund there had been created, from donations and bequests, deposits which aggregate $381,000, and that the total of the perpetual care fund under the first mentioned act has at the present time a value in excess of $2,700,000.

The complaint alleges that the act of July 21, 1947, designated as the Cemetery Care Act (Ill. Rev. Stat. 1947, chap. 21, secs. 64.1 to 64.24,) provides, among other things, that any cemetery coming within the provisions of the act, which is authorized to accept funds and hold them in perpetuity for the care of lots or graves, is required to invest the funds in a certain manner, and be under the supervision of the Auditor of Public Accounts, and to comply with certain requirements of said act, or be liable to certain penalties provided therein.

Without reciting all of the other allegations contained in the complaint, it is the contention of plaintiff that the act does not in its terms embrace cemeteries organized as plaintiff, under the special act of 1859, and the amendment thereof in 1863, and seeks the declaratory judgment of the court to so hold, or, in the alternative to declare said Cemetery Care Act void. The allegations of the complaint and its amendments also show that the General Assembly at the same session of 1947 amended certain other general statutes relating to those cemeteries that had authority to create perpetual care trusts, to comply with the Cemetery Care Act of 1947. It also alleges that the Auditor of Public Accounts is claiming the right to supervise not only the investments already made by it, but all investments in the future, and all perpetual-care contracts or agreements which have been consummated, or those that will be executed in the future; and that the Attorney General will proceed to enforce said act unless it is held invalid, or it is held by this court that the plaintiff does not come within the terms of said Cemetery Care Act; and sets forth many details of its manner of transacting business, the character of its investments, and its proceedings under existing laws relating to investments, and prays the relief set out above.

The defendants made a motion to strike the complaint upon the ground it failed to state a cause of action; that the Cemetery Care Act was intended by the legislature to apply to the plaintiff and similarly situated cemetery societies; that the Cemetery Care Act was an exercise of the police power of the State, which properly applied to the plaintiff even though it was organized under a special act, and that there was no valid constitutional objection to the validity of the law, and that the complaint is in other ways insufficient and stated no cause of action.

The issue raised by the complaint and the motion to strike, which was allowed by the court, presents several questions. It is to be observed that the plaintiff's main claim is that the Cemetery Care Act, when properly construed, does not apply to it, or to any of its perpetual care investments. This involves a study of the special acts under which the plaintiff was created and operates, and likewise, the provisions of the Cemetery Care Act. These questions do not necessarily involve the validity, but only the application of the Cemetery Care Act. The alternative claim is that the Cemetery Care Act is unconstitutional and void for the several reasons set out in the complaint, if it is held to apply to the plaintiff.

We will not consider the first contention because the constitutionality of an act will not be passed upon by this court unless the validity of a statute is necessarily involved, and a proper determination of the issues raised requires a decision upon that question. People ex rel. Patterson v. Long, 297 Ill. 194; People v. Small, 319 Ill. 437; Ossey v. Retail Clerks' Union, 326 Ill. 405; People ex rel. Yohnka v. Kennedy, 367 Ill. 236.

We will first consider the vital provisions of the special act of 1859 incorporating the plaintiff. Section 1 provides that the eighteen named individuals, and others they may hereafter associate with them, are created a body politic and corporate by the name of Rosehill Cemetery Company, and for perpetual succession and for other corporate powers. Section 2 provides for a board of managers and other matters pertaining to the conduct of business. Section 3 provides for the acquiring of land and the disposal thereof. Section 4, which is the foundation of certain claims of appellant, we set out in full.

"Sec. 4. The said managers and their successors shall have authority to lay out and ornament, for cemetery purposes, such grounds as they may acquire as aforesaid; to make and have recorded in the Recorder's office of Cook County, a plat of such grounds and of such additions thereunto as they may make at any time, and the filing of such plat for record, shall operate as a legal vacation of any former plat or subdivision of the same, and of any roads or alleys passing through the same, also erect such buildings, tombs, enclosures or other structures as they may deem advisable; to arrange and dispose of burial lots on such terms and with such conditions for the permanent care and preservation of the cemetery, or any part thereof, as they may agree upon with the purchasers. To make such bylaws and regulations relative to the election and duties of managers and their successors; the appointment of officers and agents, and their several duties and compensations; and to make such rules and regulations, from time to time, for the government of lot holders and visitors to the cemetery as they may deem necessary."

Section 5 provides that the properties shall be free from taxation, and exempt from execution. Section 6 is a regulatory provision. Section 7 provides that the corporation may take and hold any grant, donation or bequest of property upon trust, to apply the same or the income under the directions of the managers for the improvement of the cemetery, or the protection or preservation of any monument, tomb or gravestone, or for the planting of trees and shrubs in and around any cemetery lot, according to the terms of the grant or bequest. The remaining sections have no relevancy to this case.

The general tenor of the amendment by the act of 1863 has been described above, but section 13 provides that it shall become a part of the charter of the company when the board of managers has voted to accept the act as a part of its charter and shall sign a certificate, together with the executive officers of the ...

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