(dissenting). I quite agree with my Brother Ostrander in holding that the lands of complainant devoted to cemetery purposes'cannot be sold for the purpose of collecting a special assessment. To permit the title to be alienated for the collection of a special assessment would be to work exactly the same evils as would follow for the purpose of collecting a general assessment.
I do not agree, however, that 3 Comp. Laws, § 8406 (3 Comp. Laws 1915, § 11161), should be construed as relieving the lands of complainant, devoted to cemetery purposes, from a special assessment for street improvement. See 1 Cooley on Taxation (3d Ed.), p. 362 et seq.; also 2 Cooley on Taxation (3d Ed.), pp. 1234, 1235; 28 Cyc. p. 1132. The courts have very generally held that statutes exempting cemeteries from taxation do not exempt them from special assessments for the cost of paving streets abutting their property. See In re Broad Street, 165 Pa. 475 (30 Atl. 1007); Newcastle City v. Stone Church Graveyard, 172 Pa. 86 (33 Atl. 236); City of Philadelphia v. Union Burial Ground Society, 178 Pa. 533 (36 Atl. 172, 36 L. R. A. 263); Illinois Cent. R. Co. v. City of Decatur, 147 U. S. 190, 197 (13 Sup. Ct. 293); Lefevre v. Mayor, etc., of Detroit, 2 Mich. 587; Buffalo Cemetery Ass’n v. City of Buffalo, 118 N. Y. 61 (22 N. E. 962), affirming 43 *565Hun, 127; Baltimore v. Green Mount Cemetery, 7 Md. 517; City of Lima v. Cemetery Ass’n, 42 Ohio St. 128 51 Am. Rep. 809); In re Sixth Avenue West, Seattle, 22 Am. & Eng. Ann. Cas. 1912A, 1047 (59 Wash. 41, 109 Pac. 1052), and cases cited in note on page 1051, decided June 14, 1910.
Our general tax law covering the subject (1 Comp. Laws, § 3830, subd. 6 [1 Comp. Laws 1915, § 4001, subd. 6]), while providing that the lands used exclusively as burial grounds, etc., shall be exempt, provides:
“The stock of any corporation owning such burial grounds shall not be exempt.”
Defendant by the second prayer in its cross-bill asks alternative relief to the following effect:
“That it be decreed by the court that said special assessment * * * is a debt due from said complainant to said city.”
Section 221 of the charter of the city of Detroit provides in part:
“And the said receiver shall have power in the name of the city of Detroit to prosecute any person refusing or neglecting to pay such taxes or any special assessment by a suit in the circuit court for the county of Wayne, and he shall have, use, and take all lawful ways and means provided by law for the collection of debts, to enforce the payment of any such tax or any special assessment.”
Section 231 in part provides:
“After which warrants for the collection of the same may be issued, and such proceedings for the collection thereof be had as are or shall be prescribed by law, or by any ordinance or resolution of the common council.”
The relief prayed for I think should be granted; and, there being no dispute as to the amount of the tax or the penalty and interest, a decree in favor of the defendant city should be entered in this court.
*566The money may not be realized upon this decree from a sale of the lands of complainant, devoted to cemetery purposes, but any other assets of complainant which could be reached by execution would be liable. Under this disposition of ;the case the rights of the holders of burial privileges in the cemetery proper would be protected, and complainant should be compelled to bear its just proportion of the municipal burden caused by the special improvement.
The decree of the court below should be modified as indicated, but without costs to either party.
Kuhn, Bird, and Steere, JJ., concurred with Brooke, J.