The opinion of the Court was delivered by
Fenner, J.The owners of a certain tract of land formerly known as the Metairie Eace Course, with certain other individuals, iormed themselves into a corporation under the general law of the State, for the purpose declared in their charter, “ to be the establishment and maintenance of a cemetery and graveyard” on the property above mentioned.
In 1873, the legislature, by Act No. 60, of that year took cognizance of the act of incorporation, and made it a penal offense to wilfully destroy any tomb in said cemetery, remove auy body therefrom or cut or break any tree or plant therein, and further exempted “ the property of the association from all taxation, State as well as municipal or parochial, so long as it remained dedicated to the purposes of a cemetery.”
The general revenue acts of the State, at and prior to that time, exempted from taxation, “ cemeteries and graveyards set apart and actually used for the purpose of interring the dead.” Article 207 of the Constitution of 1879, expressly exempts from taxation “ all places of burial—provided such exempted property be not used or leased for purposes of private or corporate profit or income.”
The uncontradicted evidence fully shows, that the property has been established and maintained as and remains exclusively dedicated to the purposes of a cemetery; that large expenditures have been made to fit it for this sole purpose; that it has been enclosed with appropriate walls and fences j that buildings proper for the temporary *34reception of the dead have been constructed; that avenues, drives and walks have been built; that trees and flowers have been planted, and that all the resources of landscape gardening have been employed to beautify and ornament the grounds; that they are divided into plots appropriate for use for tombs and burial places; that many interments have taken place and expensive tombs have been erected; that persons are employed to supervise and .care for the cemetery; that the property is not, and has never been used for any other purpose.
At the formation of the corporation a capital stock was formed, fixed at $120,000, divided into 1200 shares of $100 each. Of this stock, eight hundred shares were assigned to the owners of the property in.consideration for its transfer to the corporation, while the remaining four hundred shares wore taken by other subscribers who paid for the same and the funds arising therefrom wore to be, and were employed in “ the embellishment, improvement and ornamentation of the cemetery.” Large additional sums have been expended for the same purpose'1.
No attempt was ever made to tax this property until the year 1883 when the defendant Board of Assessors, for the first time, placed it upon the assessment rolls of 1883. In so doing, they valued the stock of the corporation at $118,000. They valued the cemetery at $50,000. They deduct the latter from the former sum to ascertain .the taxable value of the stock; and they return the company for taxation on real estate, $50,000, and on surplus stock, 08,000, making total of $118,000.
After timely and formal application to the Board for the cancellation of this assessment, and after refusal by the Board, the plaintiff brings the present action to compel such cancellation.
Amongst the several grounds of exemption urged by plaintiff, we find it necessary to notice only one, viz: That based on Art. 207 of the present Constitution, which, as we have seen, exempts “all places of burial—provided such exempted property be not used or leased for purposes of private or corporate profit or income.”
We will consider:
1. The taxability of the property.
2. That of the stock.
I.
That this property is, as a whole and in all its part, a cemetery, no ono can dispute. It is used for that purpose and for no other. To that purpose it is dedicated in the charter of the corporation. No suggestion is made that it is excessive in extent or that any fraud upon *35the law is contemplated by seeking under that name, to cover from taxation property not really intended or expected to be used for that purpose. On the contrary, the apin-opriateness of the dedication has been expressly recognized by the law-making power in Act No. 60 of 1873, above referred to.
Now, what is a cemetery"? Lexicographers define it to be “ an area or place where the dead are buried.” Worcester’s Dictionary.
In other words, it 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 sacred precincts and sell, at public outcry, the land adjoining their tombs to some publican who might build thereon a bar-room or a brothel ?
The words are to be interpreted also with reference to existing and prior legislation on the same subject,' which had exempted from taxation “ cemeteries and grave yards set apart and actually used for the purpose of burying the dead.” Rev. Statutes, Sec. 3233.
The obvious intention was to give a constitutional sanction and guarantee to such ancient and habitual exemptions. Wo 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 its use and dedication as a place of burial.
*36In establishing this exemption, the law concerns itself exclusively with the quality and use of the property, and not at all with its ownership or disposition. So long as it retains the character of a “place of burial,” it matters not who owns it, how often it may change hands nor at what prices—as a “ place of burial,” it remains exempt. The sale of property is not an use of it within any signification, technical o.r general, of that word.
Every cemetery belongs to some owner; and the lots therein are not usually given away, but are sold to persons desiring to acquire them for purposes of interment. If the law had intended to exempt such “places of burial,” only on condition that they should not be sold, it would have said so. Under such construction, the unoccupied lots of perhaps every cemetery in New Orleans, would be 'equally liable to taxation -with those of plaintiff. Indeed, churches, hospitals, orphan asylums and other exempt property are equally subject to be sold at the will of the owners, and on the same theory might lose their exemption. Possible profits on such sales are not matters of judicial concern.
But, such construction would be absurd; because, then until sold, the condition of the law would not have been violated; and, when sold, how could the property be taxed to the seller ? Thus, in the instant case, the property assessed is admitted to be the unsold portion of the cemetery. As we have held, it is “ a place of burial,” within the intendment of the law. It is clear from the evidence that it is not used for any purpose of profit or income; and it has not been sold. Then in what way has any breach of the condition which excludes exemption been committed ?
The question answers itself. This property is exempt from taxation and was improperly listed on the assessment roll.
II.
The question as to the taxability of the stock is equally free from difficulty.
The proof is perfect that this corporation has no source of revenue or income. It conducts no business except that of administering and caring for the cemetery, which is simply productive of expenditure. It has no accumulated funds. Its stock originally represented its rqal estate and the improvements thereon. As lots have been sold, the proceeds, not consumed in improvements, have been returned to the stockholders in reimbursement of their investments, and have passed into the domain of taxable private values. The sold lots are a diminution *37pro tanto of the property of the corporation. The stock now represents nothing but the value of the real estate remaining unsold.
Whatever bo the power of the legislature to subject to taxation, shares of stock, independently of any consideration of the elements which give them value, the law in force in this State only taxes the surplus of their value, over and above the value of the real estate owned by the corporation. The fact that this real estate is exempt from taxation, does not impair, but increases its value, and that value must still be deducted from the market value of the stock in order to ascertain the surplus liable to taxation.
In this case, as the stock represents absolutely nothing but the real estate, it is clear that it can have no surplus value. The attempt of the assessors to create an apparent surplus by assessing the real estate at less than one-half the value of the stock cannot succeed. They have themselves elicited evidence found in the record, tending to show that the property is really worth more than the market value of the stock. But, in truth and in fact, the market value of the stock is simply and necessarily the market value of the real estate, and there is, and can be, no surplus for taxation.
Judgment affirmed.
Rehearing refused.