City of Gary v. Gary, etc., Cemetery Assn.-186 Ind. 446.

right of way may be obtained. It requires the removal and burial of the remains of dead bodies buried within such right of way. It makes provision for the payment of the entire cost of such sewer or drain in so far as the cost thereof would be assessed ordinarily against such lots or parcels of land, by assessing that portion of the cost against the city. The express subject of the section is the sewer or drain which the board shall determine is necessary to extend through, etc.

In this case the sewer at its nearest point to the cemetery in question is more than 600 feet away. It is conceded that it was established under §8722, supra, and the assessment made as provided by §8725 Burns 1914. But it is insisted that the word "adjacent" as found in §8726, supra, when given its ordinary and usual meaning, brings the sewer within the provisions of that section, and therefore the assessment placed against appellee's property should have been assessed against the city of Gary, under the provision that "so much of the cost of such sewer or drain as would be assessable against such lots or parcels of land, if not so held, shall be assessed against such city and shall be paid by it."

With this view we cannot agree, for the reason, as we have stated, that the sewer in question is not one contemplated by this section. Nor can we agree that the word "adjacent" as here used, or as defined by lexicographers, should be given the broad meaning claimed for it by appellee. "Adjacent" is defined as: "lying near or close at hand; adjoining; bordering"Standard Dictionary; "That which is near or bordering upon"; "adjoining"-Webster's Dictionary; "Contiguous; adjoining"; "as, a field adjacent to the highway"-Century Dictionary. See, also, Dunker v. City of Des Moines (1912), 156 Iowa 292, 136 N. W. 536; Northern Pacific R. Co. v. Douglass County (1911), 145

City of Gary v. Gary, etc., Cemetery Assn.-186 Ind. 446.

Wis. 288, 130 N. W. 246; Johnston v. Davenport Brick, etc., Co. (1916), 237 Fed. 668. Having concluded that this section has no application to the question at hand, it will not be necessary for us to consider the contention of appellant relative to its validity.

Our attention is also called to §4447 Burns 1914, post, which reads as follows: "That in all cases where

cemeteries incorporated under the laws of this 2. state upon such a basis that the corporation cannot derive any pecuniary benefit or profit therefrom; and in all cases where a cemetery association shall provide for setting aside a certain definite portion of the proceeds derived from the sale of lots as a perpetual care fund, the income of which shall be used as a perpetual care and maintenance fund, all the property and assets belonging to such corporation used exclusively for cemetery purposes shall be exempt from taxation for any purpose: And provided, That it shall be lawful for any person to provide a fund, either by gift, bequest or devise, which may be a perpetual fund, the income from which shall be used for the care and maintenance of any cemetery lot expressly described in the instrument creating the fund, and the fund so created shall be exempt from taxation for any purpose; and a trust may be created for the care, custody and control of such fund: Provided, That the real estate of any such corporation lying within any incorporated city or town shall not be exempt from liability for street improvements and sewer assessments, as now or may hereafter be provided by law."

This section was originally passed in 1895 (Acts 1895 p. 18) and amended in 1905 (Acts 1905 p. 185) by adding the two provisos. The title of the original act was "An act exempting from taxation the property of cemeteries organized under the laws of this state, upon a basis which prevents the corporations from deriving

City of Gary v. Gary, etc., Cemetery Assn.-186 Ind. 446.

therefrom pecuniary benefit or profit." It will be seen from the title and from the act itself that it pertained only to the exemption of taxes imposed by legislative authority for public or governmental purposes. It does not purport to enter the field of local assessments founded and sustained upon the theory of benefits to property assessed.

The chief purpose of a proviso is to except the clause covered by it from what would otherwise be embodied in the statute. 3 Bouvier, Law Dictionary (3d 3. ed.) 2761; State v. Barrett (1908), 172 Ind. 169, 87 N. E. 7. But when, as here, the subject of the proviso is not within the title, nor a matter 4. germane to the subject expressed therein, or there is no provision in the body of the act upon which the proviso may act, it can have no legislative force. Southern Pac. Co. v. Bartine (1909), 170 Fed. 725.

We are not unmindful that a proviso may, in a proper case, mean additional legislation, but that question is not here for consideration. Therefore, under well-recognized rules of construction the second proviso of §4447, supra, can amount to no more than a legislative expression lacking in the fundamentals essential to a valid law.

With the conclusions thus reached, we are left to the general law relating to the assessment of property to

pay for sewer construction. This law does not 5. specifically exempt cemetery property from local assessments. In the absence of such specific authority, the exemption of property from taxation, or real estate from local assessments, will not be presumed, and any law to that effect will be strictly construed. Orr v. Baker (1853), 4 Ind. 86; City of Indianapolis v. Grand Master, etc. (1865), 25 Ind. 518, 521, and authorities cited.

City of Gary v. Gary, etc., Cemetery Assn.-186 Ind. 446.

But on the ground of public policy we are not inclined to believe that the legislature ever intended that

the sepulchre of the dead should be the subject 6. of a lien to be enforced by a foreclosure and sale

as other property. The law makes no provision for a personal liability in cases of local assessment, so that the only manner of enforcing the payment of such assessment is as we have indicated, the sale of the graves of the dead to pay for sewers and drains for houses of the living. The barrier of public policy will interpose to prevent such results. So much may be said for lots and parcels of ground now in use or occupied for burial purposes. The same rule should and does obtain where the lot or parcel of land is actually held by the grantee or licensee of appellee as a family burying ground, although it may not be in actual use. This holding is put upon the theory that the makers of the Constitution, as well as the general assembly, "in common with the rest of mankind, did not think of the family burying ground" as property (Oak Hill Cemetery Co. v. Wells [1906], 38 Ind. App. 479, 481, 78 N. E. 350) in the sense of benefits derived from drains or sewers as intended for the improvement of land for the purposes of residence or business.

Now as to the lots and parcels of ground of appellee, from the complaint it appears that appellee purchased

a tract of land, which is now in the city of Gary, 7. and platted the same into lots, laid out drives and otherwise beautified the land in many particulars in the pleading fully described. Thereafter it began selling burial permits and family lots and has continued to do so; that the purchasers thereof began and are now burying the dead in various lots so platted by it as aforesaid; that the burials for the most part have been in the south half of the land. The purpose of appellee is gain and profit in the sale of the lots.

City of Gary v. Gary, etc., Cemetery Assn.-186 Ind. 446.

It still owns a large tract of land, and while it is platted into burial lots none of it is in actual use. It is for sale. Local assessments can be sustained only upon the ground of local benefits or the enhanced value of the property assessed. If appellee's land is not benefited, or its value not increased by the improvement, it cannot legally be assessed to pay for such improvement. In the absence of a statute exempting lands held as here shown to be held by appellee, there is no sound reason why they may not be liable to contribute to local improvements. Garden Cemetery Corp. v. Baker (1914), 218 Mass. 339, 105 N. E. 1070, Ann. Cas. 1916 B 75; Bloomington Cemetery Assn. v. People (1891), 139 Ill. 16, 28 N. E. 1076; People v. Cemetery Assn. (1914), 266 Ill. 32, 107 N. E. 143; Beltzhoover Borough v. Beltzhoover's Heirs (1896), 173 Pa. St. 213, 33 Atl. 1047; Buffalo City Cemetery v. City of Buffalo (1871), 46 N. Y. 506. For, if payment of the assessment should be enforced by sale of the land, the lots in use or held for family burial, as well as any and all improvements made on the land, are as fully protected against the acts and doings of a purchaser as they are now. If it were shown that such assessment could not be satisfied without desecrating the graves and subjecting the purchaser to punishment under a penal statute of the state, (§2309 Burns 1914, Acts 1905 p. 584, 679), the assessment should not be sustained. The facts here show that a reasonable assessment may be enforced against the land of appellee, without molesting the lots or parcels of ground actually in use for burial purposes.

The judgment is reversed, with instructions to the court below to sustain the separate demurrers of appellants to appellee's complaint, and grant appellee permission to amend its complaint, if desired, and for further proceedings not inconsistent with this opinion.