Mr. Justice Maxwell
delivered the opinion of the court:
This is a quo warranto action filed in the superior court of Cook County by the People, on the relation of J. H. Anderson Monument Company, a corporation, hereinafter referred to as plaintiff, against Rosehill Cemetery Association, a corporation, hereinafter referred to as defendant. The plaintiff appeals from the judgment of the superior court dismissing the complaint and entering judgment for defendant on the pleadings. The appeal is properly directed to this court since a franchise is involved.
After refusal of the Attorney General of Illinois and the State’s Attorney of Cook County to file a complaint in the nature of quo warranto, plaintiff filed its petition in the superior court for leave to file such complaint, pursuant to the statute. (Ill. Rev. Stat. 1953, chap. 112, par. 10.) Leave was granted plaintiff to file over defendant’s objection.
The complaint alleged that since 1949 defendant had engaged in the business of selling monuments, markers, tombstones and memorials for profit, and that it was thereby exceeding and violating its charter powers and called upon it to show by what warrant it exercised such powers. After denial of its motion to dismiss the complaint, defendant filed its answer admitting the sale of monuments, memorials and markers for use and installation within the cemetery operated by it, denying that it sells any memorials for use and installation elsewhere, and set up its charter.
Plaintiff’s reply denied generally the affirmative allegations of the answer and, while it did not question the statement that sales were for use or installation only within defendant’s cemetery, it did challenge defendant’s contention that Rosehill had the right to make such sales as a service incident to the carrying out of its objects and purposes as contemplated by the charter.
The court then granted defendant’s motion for judgment on the pleadings on the ground that the reply was substantially insufficient in law, denied permission to file an amended reply, and ordered the complaint dismissed at the cost of plaintiff. The judgment of the court was in effect an adjudication that defendant was within its charter authority in selling memorials for erection and use in its cemetery.
Before passing upon the primary question, it is necessary to examine the contention made by defendant that plaintiff has no such interest in defendant’s charter powers which would entitle it to maintain this action in the name of the People and consequently has no right to appeal. This question was raised before the trial court in the answer to the petition for leave to file the complaint and in a motion to dismiss the complaint. Defendant assigns as cross errors the court’s order authorizing the filing of the complaint and its refusal to dismiss the complaint. In addition to the assignment of cross errors, defendant has here filed a motion to dismiss this appeal, with suggestions, upon the theory that plaintiff had no right to maintain a quo warranto proceeding in the first instance and consequently has no right of appeal from an adverse decision. This motion was denied by this court March 9, 1954.
Section 2 of the Quo Warranto Act (Ill. Rev. Stat. 1941, chap. 112, par. 10,) provides that quo warranto proceedings shall be brought in the name of the People by the Attorney General or State’s Attorney of the proper county or by any citizen having an interest in the question on his own relation after request to and refusal or failure by such officials so to do, upon giving proper notice and getting leave of court. All necessary jurisdictional steps were here taken and the sole question presented on this point is whether plaintiff has such an interest in the question as to permit it to maintain this action.
We have had numerous occasions to construe the Quo Warranto Act of 1937 with respect to the right of private citizens to maintain actions thereunder. Our holdings have consistently been that the interest of an individual must be one that is personal to him and not common to the public. It must be of such a nature that the usurpation of a public grant, franchise or office has trespassed upon or injured his private, legal or equitable rights as differentiated from the injury to the general public. Rowan v. City of Shawneetown, 378 Ill. 289; People ex rel. Buchanan v. Mulberry Grove Community High School Dist. 390 Ill. 341; Adair v. Williams, 407 Ill. 309; People v. Wood, 411 Ill. 514.
It is alleged by plaintiff’s pleadings that it is engaged in the business of selling tombstones, monuments and markers for graves and memorials, that its principal place of business is located across the street from the main entrance to the Rosehill Cemetery, that a major portion of its business is derived from lot owners and relatives of deceased persons buried in that cemetery, that since the year 1949 when defendant began to sell in competition that plaintiff’s business has declined approximately 50 percent and that if defendant continues to engage in such business plaintiff will be compelled to discontinue its business with a consequent loss of its large investment built up during the years.
From the facts alleged, which for the present purpose must be taken as true, it appears that plaintiff does have a sufficient individual interest in the question to maintain a quo warranto action on its own relation. Its location across from defendant’s cemetery, peculiar to it so far as the record shows, and the fact that a majority of its business is derived from owners of lots in such cemetery make its interest different not only from that of the general public but its individual interest differs even from others engaged in a like business. We find no error in the trial court’s rulings on this point and the motion to dismiss the appeal was properly denied.
The substantive question is whether the sales of markers and memorials for use in its cemetery were ultra vires acts and not authorized by its charter.
Rosehill Cemetery Company was incorporated in 1859 by a special act of the General Assembly. The charter granted it the right to operate and maintain a cemetery. It was therein authorized to purchase land, to lay out, arrange and dispose of burial lots on such terms and in such conditions for permanent care and preservation as they may agree upon with the purchasers, to erect such buildings, tombs, enclosures or other structures as the board of managers deemed advisable, to ornament the grounds for cemetery purposes and to receive trust funds and apply them for the improvement of the cemetery or for the erection, repair, preservation or renewal of any tomb, monument, gravestone or other erection. The charter has twice been amended; first, to authorize the setting up of a trust fund, and, second, granting it the powers of eminent domain.
Defendant insists that it has express powers granted by its charter to offer for sale, and to sell as a service to its lot owners, markers and monuments for installation on lots in its cemetery and that the comprehensive powers to use land for “cemetery purposes” is indicated by the specific powers granted. It is argued that the words “to arrange and dispose of” burial lots is only a part of the larger purpose for which the cemetery was established, and that such words are ample authority to sell and erect monuments.
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Mr. Justice Maxwell
delivered the opinion of the court:
This is a quo warranto action filed in the superior court of Cook County by the People, on the relation of J. H. Anderson Monument Company, a corporation, hereinafter referred to as plaintiff, against Rosehill Cemetery Association, a corporation, hereinafter referred to as defendant. The plaintiff appeals from the judgment of the superior court dismissing the complaint and entering judgment for defendant on the pleadings. The appeal is properly directed to this court since a franchise is involved.
After refusal of the Attorney General of Illinois and the State’s Attorney of Cook County to file a complaint in the nature of quo warranto, plaintiff filed its petition in the superior court for leave to file such complaint, pursuant to the statute. (Ill. Rev. Stat. 1953, chap. 112, par. 10.) Leave was granted plaintiff to file over defendant’s objection.
The complaint alleged that since 1949 defendant had engaged in the business of selling monuments, markers, tombstones and memorials for profit, and that it was thereby exceeding and violating its charter powers and called upon it to show by what warrant it exercised such powers. After denial of its motion to dismiss the complaint, defendant filed its answer admitting the sale of monuments, memorials and markers for use and installation within the cemetery operated by it, denying that it sells any memorials for use and installation elsewhere, and set up its charter.
Plaintiff’s reply denied generally the affirmative allegations of the answer and, while it did not question the statement that sales were for use or installation only within defendant’s cemetery, it did challenge defendant’s contention that Rosehill had the right to make such sales as a service incident to the carrying out of its objects and purposes as contemplated by the charter.
The court then granted defendant’s motion for judgment on the pleadings on the ground that the reply was substantially insufficient in law, denied permission to file an amended reply, and ordered the complaint dismissed at the cost of plaintiff. The judgment of the court was in effect an adjudication that defendant was within its charter authority in selling memorials for erection and use in its cemetery.
Before passing upon the primary question, it is necessary to examine the contention made by defendant that plaintiff has no such interest in defendant’s charter powers which would entitle it to maintain this action in the name of the People and consequently has no right to appeal. This question was raised before the trial court in the answer to the petition for leave to file the complaint and in a motion to dismiss the complaint. Defendant assigns as cross errors the court’s order authorizing the filing of the complaint and its refusal to dismiss the complaint. In addition to the assignment of cross errors, defendant has here filed a motion to dismiss this appeal, with suggestions, upon the theory that plaintiff had no right to maintain a quo warranto proceeding in the first instance and consequently has no right of appeal from an adverse decision. This motion was denied by this court March 9, 1954.
Section 2 of the Quo Warranto Act (Ill. Rev. Stat. 1941, chap. 112, par. 10,) provides that quo warranto proceedings shall be brought in the name of the People by the Attorney General or State’s Attorney of the proper county or by any citizen having an interest in the question on his own relation after request to and refusal or failure by such officials so to do, upon giving proper notice and getting leave of court. All necessary jurisdictional steps were here taken and the sole question presented on this point is whether plaintiff has such an interest in the question as to permit it to maintain this action.
We have had numerous occasions to construe the Quo Warranto Act of 1937 with respect to the right of private citizens to maintain actions thereunder. Our holdings have consistently been that the interest of an individual must be one that is personal to him and not common to the public. It must be of such a nature that the usurpation of a public grant, franchise or office has trespassed upon or injured his private, legal or equitable rights as differentiated from the injury to the general public. Rowan v. City of Shawneetown, 378 Ill. 289; People ex rel. Buchanan v. Mulberry Grove Community High School Dist. 390 Ill. 341; Adair v. Williams, 407 Ill. 309; People v. Wood, 411 Ill. 514.
It is alleged by plaintiff’s pleadings that it is engaged in the business of selling tombstones, monuments and markers for graves and memorials, that its principal place of business is located across the street from the main entrance to the Rosehill Cemetery, that a major portion of its business is derived from lot owners and relatives of deceased persons buried in that cemetery, that since the year 1949 when defendant began to sell in competition that plaintiff’s business has declined approximately 50 percent and that if defendant continues to engage in such business plaintiff will be compelled to discontinue its business with a consequent loss of its large investment built up during the years.
From the facts alleged, which for the present purpose must be taken as true, it appears that plaintiff does have a sufficient individual interest in the question to maintain a quo warranto action on its own relation. Its location across from defendant’s cemetery, peculiar to it so far as the record shows, and the fact that a majority of its business is derived from owners of lots in such cemetery make its interest different not only from that of the general public but its individual interest differs even from others engaged in a like business. We find no error in the trial court’s rulings on this point and the motion to dismiss the appeal was properly denied.
The substantive question is whether the sales of markers and memorials for use in its cemetery were ultra vires acts and not authorized by its charter.
Rosehill Cemetery Company was incorporated in 1859 by a special act of the General Assembly. The charter granted it the right to operate and maintain a cemetery. It was therein authorized to purchase land, to lay out, arrange and dispose of burial lots on such terms and in such conditions for permanent care and preservation as they may agree upon with the purchasers, to erect such buildings, tombs, enclosures or other structures as the board of managers deemed advisable, to ornament the grounds for cemetery purposes and to receive trust funds and apply them for the improvement of the cemetery or for the erection, repair, preservation or renewal of any tomb, monument, gravestone or other erection. The charter has twice been amended; first, to authorize the setting up of a trust fund, and, second, granting it the powers of eminent domain.
Defendant insists that it has express powers granted by its charter to offer for sale, and to sell as a service to its lot owners, markers and monuments for installation on lots in its cemetery and that the comprehensive powers to use land for “cemetery purposes” is indicated by the specific powers granted. It is argued that the words “to arrange and dispose of” burial lots is only a part of the larger purpose for which the cemetery was established, and that such words are ample authority to sell and erect monuments. It is further argued that the authority "to erect such buildings, tombs, enclosures or other structures as they may deem advisable” covers any structure appropriate to a cemetery. These are tenuous arguments at best. The meaning of the right “to arrange” in its usual context would be the laying out and planning of the cemetery. The most reasonable construction of the authority to erect buildings, tombs, enclosures and other structures is that the proprietor has the right to erect the same for itself and the general use of its cemetery, rather than for the individual lot owners for profit.
It is also contended that the authority to own and operate a cemetery carries with it the implied power to offer for sale and sell monuments. Reference is made to the Illinois Business Corporation Act and many cases are cited to the effect that a corporation may do all things convenient, suitable or necessary to enable it to perform the business designated in the charter. Examples are: a hotel may operate buses, a restaurant, barber shop and other retail shops. (Richelieu Hotel Co. v. International Military Encampment Co. 140 Ill. 248.) An interior decorating business may sell flowers 'for use by its customers. (Quinlan v. Almini Co. 191 v. App. 568.) These cases and many others are eminently correct, but they deal with implied powers of corporations which are not in the preferred class of the defendant. Rosehill is a qMiro'-public corporation with the right of eminent domain. (Rosehill Cemetery Co. v. Hopkinson, 114 Ill. 209.) It has certain other privileges not enjoyed by business corporations, including exemption from taxes. (People v. Rosehill Cemetery Co. 371 Ill. 510.) As a consequence, its powers should be strictly construed lest it be put in such a preferred position as to constitute a menace to free enterprise.
While we have never specifically passed upon the point here involved, we have had occasion in the past to comment upon the charter powers of the defendant. In City of Chicago v. Rose Hill Cemetery Co. 285 Ill. 567, at page 569, we said: “This was an incorrect basis for estimating benefits, as the property was not acquired and held by appellant for any other than cemetery purposes and the law prohibited the use of it by appellant for any other purpose.” Again, in People v. Rosehill Cemetery Co. 371 Ill. 510, at page 517 we stated: “Defendant was chartered and holds its franchise for the single purpose of conducting a cemetery for burial purposes. Whether it has made a profit and accumulated funds is wholly beside the mark.”
A similar situation was presented to us in the case of People ex rel. Paxton v. Bloomington Cemetery Assn. 353 Ill. 534. A-quo warranto action was filed against the Bloomington Cemetary Association by the Attorney General on the relation of an individual lot owner charging that the defendant was unlawfully selling and dealing in grave boxes and vaults for profit. The defendant was there charged with unlawfully exercising the powers of buying, selling and dealing in grave boxes and vaults for profit, that it had unlawfully adopted a rule forbidding the use of grave boxes or vaults except those purchased from it, that relator was prevented from interring a body on his lot in a grave box or vault not acquired from defendant, that individual dealers in boxes and vaults are taxpayers and that the enforcement of said rule restricts competition and tended to give defendant a monopoly. The plea of the defendant was that the furnishing of such items in its own cemetery was necessary to its protection and preservation and was a necessary incident to its business under its charter. The trial court entered an order ousting the corporation from the exercise of the powers complained of. The primary error assigned was that the court erred in finding that defendant had usurped powers not granted by its charter or necessarily incident thereto. The Bloomington charter was granted by the General Assembly just two years prior to that of Rosehill and there is little difference in their charter powers. The only dissimilarity between the Bloomington case and the one now under consideration is the claim of exclusive sales rights.
In the Bloomington case we said, at page 539: “The exclusive and sole object of the defendant association, as expressed in its charter, is to lay out, enclose and ornament a plat or piece of ground to be used as a burial place. Manifestly, the right to exercise the powers complained of is not expressly included in the grant. If defendant has a right to exercise them it is because they are necessarily incidental to or implied by the powers granted. (People v. Illinois Central Railroad Co., 233 Ill. 378; People v. Pullman Palace Car Co. 175 id. 125.) The right to furnish a place for burial includes the right to prescribe reasonable rules and regulations relative to burial, but the incidental right cannot be said to include any right not granted or reasonably contemplated by charter or contract.” In affirming the decision of the trial court in that case, we also said at page 539; “The right of exclusive sale of grave-boxes is not a necessary incident to the powers expressly granted by the association’s charter, nor does it appear how the furnishing of a vault or box by the defendant is either necessary or advantageous to the cemetery except as a means of revenue.”
We are of the opinion that the holding in the Bloomington case is decisive of the issues here presented. The use of the word “exclusive” in our final finding of usurpation was only descriptive of the factual situation there existing and not "as a word of limitation.
The well-written briefs have been carefully considered and we find no Illinois case cited which changes or modifies the ruling in the Bloomington case. Decatur Monument Co. v. New Graceland Cemetery Assn. 342 Ill. App. 692, is not in point, since it does not involve powers of a special charter cemetery corporation. While the cases cited from foreign jurisdictions are persuasive, we find nothing therein to justify a deviation from the holding in People v. Bloomington Cemetery Assn. 353 Ill. 534.
It is our conclusion that the acts of offering for sale and selling and dealing in markers and monuments by the defendant for installation and use in its cemetery, admitted by the answer, are a usurpation of power not granted by its charter. The judgment of the superior court of Cook County is accordingly reversed and the cause remanded, with directions to vacate its order dismissing the complaint and to take further proceedings not inconsistent herewith.
Reversed and remanded, with directions.
Per Curiam :
After allowance of a petition for re-
hearing on July 13, 1954, this case has been reconsidered and the foregoing opinion is reaffirmed and readopted.