for religious, charitable, scientific, literary, or educational purposes, * * * no part of the net earnings of which inures to the benefit of any private shareholder or individual * * * .'
The question involved is whether the employer of the claimant, the Calvary Cemetery Association, is a corporation 'organized and operated exclusively for religious * * * purposes.'
It is the contention of counsel for the Social Security Board that the services performed by Denis J. O'Leary for the Association were not 'employment' and the remunerations received were not 'wages' within the meaning of the act and the claimants are not entitled to insurance benefits.
Counsel for the claimants contend that the Appeals Council of the Social Security Board erred in its conclusions of law as applied to the facts of the case and that the claimants are entitled to insurance benefits under the act.
Counsel for both sides have presented in this court separate motions for summary judgment, under Rule 56 of the Rules of Civil Procedure, 28 U.S.C.A.following section 723c, on the ground that there is no genuine issue as to any material fact.
Upon the facts as presented above, this court has arrived at the conclusion that Calvary Cemetery Association is not a corporation organized and operated exclusively for religious purposes.
Under the facts as presented it is to be noted that the incorporators were all individuals. Although those incorporators were members of a church, no church or religious institution constitutes one of the incorporators. The same thing is true of the present corporation in its membership and management. It is a fact that the association was not created by a charter given to a church or religious denomination.
Calvary Cemetery Association was organized for the purpose of 'the forming and maintaining of a public cemetery for the burial of deceased Roman Catholics who may be entitled to burial according to the laws, rules and regulations of the Roman Catholic Church. * * * .'
Although the purpose for which the association was formed was as stated above, it is to be noted that others than Roman Catholics are permitted to be buried in the cemeteries owned by the association and that burial therein is not confined to deceased members of the five parishes represented on the Board of Managers.
The fact that this association is operated under the laws, rules and regulations of the Roman Catholic Church does not make it a corporation organized and operated exclusively for religious purposes.
It is not a religious function to operate a cemetery, care for the grounds, sell concrete slabs for vaults, inter bodies or exhume bodies, any more than it is a religious function to clean, repair, or maintain the property of a church.
When Congress appropriated funds to erect hospital buildings for Providence Hospital to be managed and directed by an order of sister-hood of the Roman Catholic Church with title in the Sisters of Charity, Emmitsburg, Maryland, it was contended that the appropriation violated the clause of the Constitution of the United States which declares 'Congress shall make no law respecting the establishment of religion.' The Supreme Court of the United States ruled that whether individuals in a corporation are all of the same creed is not of the slightest consequence with reference to the auspices and influence of a particular church which may control its management, it must be managed pursuant to the law of its being. Bradfield v. Roberts, 175 U.S. 291, 298, 20 S. Ct. 121, 44 L. Ed. 168. A public charity managed by a board of trustees composed of members of a single church does not affect its status as a purely public charity. White v. Smith, 189 Pa. 222, 42 A. 125, 43 L.R.A. 498.
A cemetery corporation organized and operated for the dominant purpose and function of furnishing a burial place for the dead is not a religious society even though religious rites may accompany the interment. Proprietors of Cemetery of Mt. Auburn v. Fuchs, 305 Mass. 288, 25 N.E.2d 759.
In the case above cited the court passed upon provisions of a social security enactment similar to the one to be considered here.
In passing upon the question of deductibility from income tax of a gift to a charitable agency, the Federal courts have held that the gift did not lose its deductibility merely because the agency was established or controlled by a non-exempt organization. Faulkner v. Commissioner of Internal Revenue, 1 Cir., 112 F.2d 987.
The Act of 1874, supra, under which this cemetery association was formed, recognized a difference between corporations formed for the purpose of maintaining and operating a cemetery and corporations formed for religious purposes. Each of these purposes was authorized in a separation section and, moreover, these purposes could not be combined. The Act of Assembly of the Commonwealth of Pennsylvania of 1933, 15 P.S. § 2851 -- 214, known as the Pennsylvania Corporation Act of 1933, now permits a religious denomination to be chartered for the purpose of maintaining a cemetery. In other words, the distinction still exists but the two purposes may now be combined.
The Act of Assembly of the Commonwealth of Pennsylvania of May 5, 1921, P.L. 395, supplementing the Act of 1874, supra, provided whenever 'Any church which now has, or hereafter shall acquire, any burial ground or cemetery, shall make an application to the court of common pleas for a charter * * * it shall be lawful * * * to grant a charter to such church for the purpose of the support of public worship and for the further collateral purpose of conducting a public burial ground or cemetery not for profit, other than is necessary for the proper maintenance of said burial ground or cemetery.'
There can be no doubt that the chief purpose and function of the Calvary Cemetery Association is to furnish a burial place for the dead.
It is the opinion of this court that the Calvary Cemetery Association is not a corporation organized and operated exclusively for religious purposes; that Denis J. O'Leary, claimant, rendered services in employment covered by the Social Security Act; received wages therefor, and was insured under the Act; that Denis J. O'Leary is entitled to primary insurance benefits under the Social Security Act, and that Catherine C. O'Leary is entitled to wife's insurance benefits under the Social Security Act.
And now March 19, 1945, it is ordered and decreed that defendant's motion for summary judgment be, and it hereby is, denied; the plaintiffs' motion for summary judgment is granted; the decision of the Social Security Board is reversed, and the Social Security Board is hereby directed to allow and to pay to the claimants, Denis J. O'Leary and Catherine C. O'Leary, the insurance benefits provided by the terms of the Social Security Act.
Supplemental Order of March 19, 1945
It is ordered and decreed that defendant's motion for summary judgment be, and it hereby is, denied; the plaintiff's motion for summary judgment is granted; the decision of the Social Security Board is reversed; the Social Security Board is directed to certify to the Managing Trustee that the plaintiffs are entitled to payments under the Social Security Act; the names and addresses of the plaintiffs; the amount of the payments the plaintiffs are entitled to receive and the time at which such payments should be made.
Frederick V. Follmer, U.S. Atty., and Alphonsus L. Casey, Asst. U.S. Atty., both of Scranton, Pa., for Social Security Board.
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