#### Board of Education of City of Akron *v.*Proprietors of Akron Rural Cemetery.

*Cemetery associations*— Incorporated *under special act but governed by general law*— iEminent *domain*— Property *already appropriated cannot be taken, when*— Land *exempt cannot be taken under general powers*— Appropriation *of cemetery land for school purposes*— Injunction—Lands *held within statutory limit.*

1. Under Section 8736 of the General Code, a cemetery corporation incorporated in 1839 under special act, which exercises the power of appropriation given to cemetery corporations under the general law, and not given under the special act, takes action in pursuance of Part II, Title 9, Division VI, Chapter VII, of the General Code, and thereby consents to be governed by the general law and to have and exercise all its franchises under the Constitution of 1851 and the law passed in pursuance thereof and not otherwise.

2. Property already appropriated in the proper exercise of the .power of eminent domain, cannot be taken for another public use which will wholly defeat or supersede the former use unless power to make such second appropriation be expressly granted. *(Railroad*v. *Belle Centre,*48 Ohio St., 273, 27 N. E., 464, approved and followed.)

*4313. When power to make an appropriation is granted only in general terms, land exempt from appropriation cannot he taken under such general power. Power to take land exempted from appropriation must be expressly granted in order to authorize such appropriation.

4. A cemetery corporation incorporated in 1839 under a special act which provided that the said corporation should have “the power to purchase and hold land for cemetery purposes not exceeding fifty acres,” but which did not grant to the said corporation the power of appropriating land, appropriated land in excess of the fifty acre limitation and held the same for cemetery purposes. A board of education instituted proceedings under Section 7624, General Code, to appropriate part of the said land held by the cemetery corporation in excess of the 50 acre limitation. *Held:*That the cemetery corporation was entitled under General Code, Section 10093, to hold land in excess of 50 acres but not in excess of the statutory limitation, and to secure an injunction preventing the board of education from appropriating any part of said land.

(No. 18261

Decided June 3, 1924.)

Error to the Court of Appeals of Summit county.

The plaintiff in error, the Board of Education of the city of Akron, Ohio, brought an action in the probate court of Summit county to appropriate for playground purposes about 1.94 acres of land belonging to the defendant in error, the proprietors of the Akron Rural Cemetery. Thereupon the defendant in error applied to the court of common pleas for a perpetual injunction restraining plaintiff in error from appropriating said land. An answer and reply were filed, and the case proceeded to hearing upon the merits. A permanent injunction, as prayed for, was granted, by *432the court of common pleas. Appeal was taken to the Court of Appeals, hearing was had upon the merits, and a permanent injunction was likewise allowed.

The Court of Appeals made separate findings of fact and conclusions of law, which read as follows:

“1. The plaintiff was incorporated by a special act of the General Assembly, passed March 1, 1839, Volume 37, Ohio Laws, p. 373, which has not been amended, and which among other things provided that ‘The directors shall have power to purchase and hold such quantity of land in Akron, or in the vicinity of Akron, or partly in each, as they shall deem proper for the purpose of a cemetery, not exceeding fifty acres, and to dispose of the same in such manner as they shall judge proper, having regard to the objects of this charter/ but said charter did not authorize plaintiff to acquire property by appropriation. In pursuance of said act plaintiff organized, and since said date has actively functioned and earned out al!, the purposes set out in its said special charter, and is now so doing.

“2. In pursuance of said act, said plaintiff purchased from time to time various quantities of land, and has held the same for cemetery purposes or for burial grounds since said parcels were so acquired; that the total acreage acquired is 57.25 acres, but that the total acreage acquired by it did not amount to 50 acres until after the year 1880; that of this entire quantity of land, 12.91 acres were acquired by appropriation in December, 1880, but the land sought to be appropriated by the de*433fendant is not included in any of the land so acquired hy appropriation.

“3. The 1.94-acre tract of land sought to be appropriated is taken from the last three tracts of land acquired by plaintiff, which aggregate 2.51 acres, which acquisition of said three tracts took plaice in the years 1884 and 1885, and said land sought to be appropriated is necessary for the complete enjoyment of the purposes of said plaintiff.

*“4.*The appropriation by the defendant would destroy entirely the use of said 1.94 acres of land for cemetery purposes, and would devote the same to purposes inconsistent with the purposes for which it was acquired by said plaintiff.

“5. The 1.94-acre tract in question was not improved by plaintiff, that is, it was not actually laid out in lots, neither did the plaintiff make avenues, alleys, or paths in said tract, nor plant nor embellish any portion of said tract; and no graves or lots for graves were ever platted or sold in said tract, nor were any burials made in said tract.

*“6.*The tract sought to be appropriated lies in the extreme northwest corner of the cemetery property of the plaintiff, and was acquired more than 25 years before the building of the schoolhouse of the plaintiff, and said schoolhouse is located not only adjoining the property of the plaintiff but immediately adjoining another cemetery actively used for burial purposes; that on October 14, 1914, plaintiff, without compensation being asked or received therefor, temporarily leased said 1.94:acre tract to the defendant for use as a *434playground in • connection with its West High School, and defendant has occupied and used said tract ever since the beginning of said lease, and in accordance with the terms of said lease has constructed a fence between it and the remainder of the property held by plaintiff for cemetery purposes, and has filled in with earth the low ground on said 1.94-acre tract which has been used as a part of defendant’s school yard. The defendant desires to appropriate the property of the plaintiff for playground purposes.

“7. Under the general law, cemetery associations were authorized to acquire property for cemetery purposes by appropriation and to acquire and hold for cemetery purposes not exceeding 100 acres of land, and said laws provided that the plaintiff could cease to act under its special charter and be governed by said general law when a certified copy of its acceptance of the provisions of the general law was filed with the secretary of state; that plaintiff did not file such certificate, but thereafter it did acquire and hold land for cemetery purposes in excess of 50 acres, some of which was so thereafter acquired by appropriation proceedings, neither of which were authorized by its charter, and it thereby took action under and in pursuance of the general corporation law of the state and consented to have and exercise its franchise under said general corporation law. All the land acquired by said plaintiff and now held by it is and always has been held exclusively for burial purposes, and in no wise with a view to profit.

“8. Said cemetery is the principal burying ground for the people of the city of Akron, and the *435land held by it for cemetery purposes is nearly exhausted, and at the present rate of burials in said cemetery it will all be actually in use for burial purposes within a few years.

“Conclusions of Law.

“That the defendant not having been especially authorized to appropriate property acquired for and devoted to a public purpose, such as this is, and said property being especially exempt from appropriation for any other purpose, is not entitled to appropriate the property sought by it to be appropriated in this proceeding.”

The case comes into this court upon motion to certify the record.

*Mr. H. M. Hagelbarger,*director of law, and *Mr. G. T. Moore,*assistant director of law, for plaintiff in error.

*Mr. Jonathan Taylor,*for defendant in error.

Allen, J.

During the course of this opinion the plaintiff in error will be referred to as the Board of Education, and the defendant in error as the Cemetery Corporation.

It was in the year 1880 that the Cemetery Corporation acquired land in excess of 50 acres. At that time the general law permitted cemetery corporations to hold land not in excess of 100 acres. R. S., 'Section 3571; G. 0., Section 10093. The section has since been amended to permit cemetery corporations to hold land not in excess of 640 acres. 109 Ohio Laws, p. 172. The legal question involved in this case is the same under the statute *436with, the 100-acre limitation or as amended, and is as follows:

Does a cemetery corporation incorporated in the year 1839, under a special act, which provided that the corporation should have the power “to purchase and hold land not exceeding fifty acres” for cemetery purposes, but which gave no power of appropriation to the said corporation, by appropriating land subject itself to the general law and thereby secure the right to avail itself of the provisions of Section 10093, General Code, which extends the limitation upon the amount of land which may be held for cemetery purposes by a cemetery corporation, and hence become enabled to secure an injunction to prevent a board of education from appropriating part of the land which it holds for cemetery purposes in excess of 50 acres, but not in excess of the statutory limitation?

The Board of Education does not contend that the use of property for cemetery purposes is not a publio use, and, in fact, many authorities are to be found decisive of that particular point. *Evergreen Cemetery Ass’n.*v. *City of New Haven,*43 Conn., 234, 21 Am. Rep., 643; 1 Lewis on Eminent Domain (3d Ed.), Section 273.

> “A cemetery is as public a place as a courthouse, or a market.” Brewer, J., in *Cemetery Association*v. *Meninger,*14 Kan., 312.

The public character of this particular cemetery iq emphasized by provisions in Section 12 and Section 13 of its charter, which read, respectively:

> “Nothing in this act shall be so construed as to prevent the right of poor persons who are unable to pay from being interred in said cemetery.

> *437“This act shall be deemed and considered a public act and shall be construed benignly in favor of said corporation.”

The act further provided that the corporation should have the power to purchase and hold land for cemetery purposes not exceeding 50 acres.

At the time the appropriation proceeding enjoined by the present action was instituted, the Cemetery Corporation owned 57.25 acres. The 50-acre limitation was exceeded by the corporation in the year 1880. The 1.94 acres sought to be appropriated are a part of the three tracts of land last acquired, and were acquired after the maximum acreage specified in the special act of incorporation, to wit, 50 acres, had been reached. This land had not been laid out nor platted as lots, or prepared for burial or cemetery purposes, and in fact had been leased to the Board of Education as a playground for several years prior to the commencement of the appropriation case.

Injunction will lie, however, in a proper case to prevent appropriation of grounds held, used, or occupied as a cemetery whether the specific land has been used for burial or not. *McCann*v. *Trustees of Mt. Gilead Cemetery,*166 Ind., 573, 77 N. E., 1090. In this case a railroad company was about to construct a railroad over the east part of a cemetery, but not on nor over the part whereon the graves were located. The statute provided that no person or corporation should locate or construct a railroad on any real estate held, used or occupied as a cemetery, and the court says at page 575 (77 N. E., 1091):

> *438“This protects not only that part of the cemetery where there are graves bnt the part intended for burials in the future, and includes all reasonable additions to an existing cemetery, even though a part thereof is not occupied by graves, but is held for cemetery purposes.”

The Court of Appeals found that the land involved herein was held for cemetery purposes, and hence the fact that the land had not yet been prepared for burial purposes is immaterial.

*Price*v. *Methodist Episcopal*Church, 4 Ohio, 515, is not in point upon this question, for in that case the land was purchased, not for a burying ground, but for a church.

The Code sections which particularly apply to this case are as follows:

Section 7624,. General Code: “When it is necessary to procure or enlarge a school site, or to purchase real estate to be used for agricultural purposes, athletic field or playground for children, or for the purpose of erecting and maintaining buildings to be used as homes or houses for public school teachers, when the cost of such erection has been contributed by private donations or for the purpose of providing an outlet to dispose of sewage from a school building or grounds, and the board of education and the.owner of the property needed for such purposes, are unable to agree upon the sale and purchase thereof, the board shall make an accurate plat and description of the parcel of land which it desires for such purposes, and file them with the probate judge, or court of insolvency of the proper county. Thereupon the same proceedings of appropriations shall *439be had which axe provided for the appropriation of private property by municipal corporations.”

Section 10093, General Code: “A company or association incorporated for cemetery purposes may appropriate or otherwise acquire and may hold, not exceeding six hundred and forty acres of land; also, take any gift or devise in trust for cemetery purposes, or the income from such gift or devise according to the provisions of such gift or devise, in trust, all of which shall be exempt from execution and from being appropriated for any other public purpose, and shall be exempt from taxation, if held exclusively for burial purposes, and in no wise with a view to profit.”

The Board of. Education claims that under the special act of March 1, 1839, the directors of the Cemetery Corporation have exceeded their powers, and that the corporation has no right to hold land for cemetery purposes in excess of 50 acres, and hence has no right to enjoin the appropriation of the land sought for a playground.

The Cemetery Corporation urges that by its appropriation of real estate in 1880 it has subjected itself to the general law, and hence can avail itself of the provisions of Section 10093, above quoted, which extend the acreage limitation.

It is conceded that the present holding, while it exceeds the acreage limitation of the special charter, does not exceed the limitation of either the original general statute or its present amended form.

The contentions above stated are grounded upon the following sections of the general law:

Section 8731: “Corporations created before the *440adoption of the present Constitution, which have not, by election or some other act, come to be governed by laws since passed, shall be governed and controlled by the laws then in force, and the valid modifications thereof since or herein enacted. Other corporations now existing or hereafter created shall be governed and controlled by the provisions of this title. (R. S., Section 3232.)”

Section 8732: “A corporation created before the adoption of the present Constitution, and now actually doing business, may accept any of the provisions of this title. When a certified copy of such acceptance is filed with the secretary of state, so much of its charter as is inconsistent with the provisions of this title is hereby repealed. (R. S., Section 3233.)”

Section 8736: “Corporations created before the adoption of the present Constitution, which take any action under or in pursuance of this title, shall thereby and thereafter be deemed to have consented, and be held to be a corporation, and to have and exercise all its franchises under the present Constitution and the laws passed in pursuance thereof, and not otherwise.”

The title referred to is title 9, of part 2, General Code, which deals with the subject of private corporations and includes Sections 8623 to 10212, General Code.

Under the above sections, corporations incorporated under special act prior to the adoption of the Constitution of 1851 become subject to general laws since enacted in one of three ways:

(1) By filing a certificate of acceptance with the secretary of state.

*441(2) By election or some other act.

(3) By taking’ “any action under or in pursuance of this title.”

It is conceded that the Cemetery Corporation has not filed the certificate of acceptance with the secretary of state; hut has it made an election or performed, in the words of the statute, “some other act” by which “it has come to be governed by laws since passed?” This phrase is very broad and may perhaps indicate that any positive action taken by the corporation which shows an intent on the part of the corporation to operate under the general statutes would constitute at least a quasi election and bring the corporation under the general law. However, it is not necessary to decide whether this somewhat indefinite phrase was complied with, for the question is concluded by considering the third method by which a! corporation ma;? become subject to the general laws, which is by taking “any action under or in pursuance of this title.”

Has the corporation taken any such action?

In the year 1880, as shown by the record, the corporation appropriated land under Section 10093, which is included in the title specified. The special charter gave the corporation no such power. Certainly by exercising this power with which cemetery corporations were invested by the general law, and with which this particular corporation was not invested under its charter, the corporation “took action” under part 2, title 9. It also thereby elected to be governed by the general corporation law, and is hence entitled to avail itself of the exemption in Section 10093, General Code, which, *442under the recent amendment, extends to 640 acres. Authority in favor of this contention is to be found in the case of *C. H. & D. Rd. Co.*v. *Cole,*29 Ohio St., 126, 23 Am. Rep., 729, in which the court held that “Railroad companies incorporated prior to the adoption of the constitution of 1851, and which avail themselves of' the *twenty-fourth*section of the general corporation act of 1852 (S. & C. Stat. 281), either by taking leases of the roads of other companies,, or by leasing their own roads to other companies, are to be regarded as thereby accepting a ‘provision’ of said act, within the meaning of its *sevemiy-first*section, and relinquishing all rights under their charters inconsistent with the provisions of said act.”

The Dartmouth College Case *(Dartmouth College*v. *Woodward,*4 Wheat., 518) is quoted by the Board of Education in this connection, but it does not apply. There is no attempt here upon the part of the Legislature to, change the charter of the Cemetery Corporation. This is a case in which the corporation changes its own charter by its own act under the specific provisions of the statutes thereto applying. In compliance with the privilege offered it by the law, the corporation acts under part 2,. title 9, of the General Law, and thus becomes subject thereto.

Moreover, we have here an instance in which the Board of Education seeks to appropriate property already devoted to a public use. Because of this public use the property under the law is “exempt from execution, from taxation, and from being appropriated to any other public purpose.” Section 10093, General Code.

*443Before property appropriated to a public use can be appropriated to another public use, which will later materially interfere with the original use, or be partly destructive thereof, it should be made to appear clearly that the same is necessary and not destructive of the public use to which the land is already devoted. *C., S. & C. Rd. Co.*v *Village of Belle Centre,*48 Ohio St., 273, 27 N. E., 464; *City of Cincinnati*v. *L. & N. Rd. Co.,*88 Ohio St., 283, at page 293, 102 N. E., 951. The record does not establish clearly that this appropriation is necessary. The finding of facts of the Court of Appeals states that the appropriation will be destructive of the public use to which the land is devoted.

Power to make this second appropriation of property already devoted to a public use is granted to the Board of Education, if granted at all, only as a general power under Section 7624, General Code. Express power to take this land, which by statute is exempt from appropriation, is not granted. But land exempt from appropriation cannot be taken under a mere general power of appropriation. Upon this one ground, if no other ground existed, the contention of the Board of Education must be overruled. *State ex rel. Atty. Gen.*v. *Cincinnati Cent. Ry. Co.,*37 Ohio St., 157, at page 176.

Judgment of the Court of Appeals affirmed.

*Judgment affirmed.*

Marshall, C. J., Jones, Matthias and Day, JJ.. concur.

Wanamaker, J., not participating.