291 P. 397 | Cal. | 1930
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *123 This is an appeal by plaintiff from a judgment of the Superior Court of Los Angeles County in an action to apportion an assessment, enjoin a sale and deed, and to quiet title.
Plaintiff is a private corporation organized for profit, and having its principal place of business at Los Angeles, California. In 1901 it was the owner of a tract of land in Los Angeles, consisting of some sixty acres. This land it proceeded to subdivide for cemetery purposes into lots and blocks, with a number of walks and drives. A plat thereof was filed with the county recorder and designated No. 156. The land has since been known as The Hollywood Cemetery. It is bounded on the north by Santa Monica Boulevard, on the east by Van Ness Avenue, and on the west by Gower Street. It is approximately 1920 feet long east and west, and approximately 1280 feet wide north and south. A resubdivision of part of the property was made in May, 1914, and another map (No. 317) was filed. In 1921 a later map (No. 523-R) was filed, which had annexed thereto rules, regulations and restrictions affecting the use of the lots by purchasers. *124
In March, 1925, a zoning ordinance of the city of Los Angeles prohibited the burial of bodies in a strip of land along the whole of the northern boundary of the cemetery, consisting of the northerly 102.61 feet. No bodies were, as yet, there interred. Thereafter plaintiff constructed a wall separating this strip from the rest of the cemetery and petitioned for a change in the ordinance so as to permit that portion to be used for business purposes. Objection was made by certain owners of lots in the cemetery, and the matter was still pending at the time this action was commenced. In plaintiff's latest map this strip is shown as divided into nineteen lots.
On January 25, 1923, and prior to the passage of the above-mentioned zoning ordinance, the city council of Los Angeles passed an ordinance of intention to improve a portion of Van Ness Avenue, under the Vrooman Act (Deering's General Laws 1923, Act 8194). The said ordinance was approved by the mayor, and thereafter the proper publication and posting of notices took place as required by the statute. The district to be charged was described in the notices and in a map filed with the city engineer, and included a parcel of land which was formerly fractional lot 15 of I.A. Weid's subdivision, and which now consisted of the easterly 300 feet of the Hollywood cemetery. This easterly 300 feet included a portion of the above mentioned strip of land running along the northerly boundary, namely, lots 17, 18 and 19 thereof.
No written objections to the proposed improvement were made, and no objection was made to the extent of the proposed district. Thereafter the board of public works made the assessment on the said lands, and the property of plaintiff (the easterly 300 feet of the tract) was assessed as one parcel in the sum of $11,069.90. The assessment was recorded on December 24, 1924, in the office of the board of public works. Plaintiff did not file any appeal to the city council. In this connection the court found that "plaintiff had no actual notice or knowledge of said assessment, excepting the constructive notice arising from the publications heretofore mentioned, until after the time for filing an appeal regarding the said assessment had expired."
In the land assessed, i.e., the easterly 300 feet, there had been sold, prior to the assessment, a large number of *125 lots and graves, and about 2,700 bodies had been buried therein. Plaintiff still has unsold, however, a portion of the property, including the said lots 17, 18 and 19 in the northerly strip, and comprising a total of not over thirty-six per cent of the land assessed.
The assessment was not paid, and a bond was issued on February 7, 1924, as provided in the act of 1893 (Deering's General Laws 1923, Act 8208). This bond, in the sum of $11,069.90, was purchased by defendant The Elliott-Horne Co. Plaintiff did not at any time present to the city treasurer an affidavit that it was the owner of the land or any part thereof and desired no bond to be issued. (See Deering's General Laws 1923, Act 8208, sec. 4.) Payment of $2,213.98 on principal and interest was made up to July 2, 1926, and no other sums were paid. On September 21, 1927, plaintiff tendered to defendant corporation thirty-six per cent of the amount remaining unpaid on the bond, which was refused. On September 26, 1927, defendant corporation gave notice to defendant city treasurer to sell the premises described in the bond at public auction. The latter gave due notice and set October 9, 1927, as the date for sale, but prior thereto plaintiff obtained a restraining order preventing such sale.
At the trial the cause was submitted upon written stipulation of facts and the several exhibits attached to the pleadings. The court gave judgment for defendants and dissolved the restraining order.
The chief contention of plaintiff on this appeal is that the assessment was improper because the portion of its property already transferred to others for burial purposes was exempt from such assessment. Before dealing with this proposition, however, we may briefly dispose of certain minor points raised in the briefs.
[1] With respect to the filing of the various maps of the tract, the court found that the plaintiff "did not . . . reserve any parcel of ground whatsoever for public purposes, and did not set forth lots intended for sale as are lots in recorded maps of cities, towns, additions to cities or towns, or subdivisions of land into small lots and tracts for the purpose of sale." Plaintiff contends that this finding is contrary to the evidence, and points to map No. 523-R, which shows a fifteen-foot alley separating the northerly *126 strip of land from the rest of the cemetery. The trial court also found that "the entire cemetery property of the plaintiff constitutes a unit maintained by the plaintiff for cemetery purposes." Plaintiff claims that lots 17, 18 and 19, which comprise the portion of the northerly strip lying within the assessed area, are business lots, separated by the above-mentioned alley from the rest of the cemetery. It is therefore argued that these lots should have been assessed separately from the rest of the cemetery property.
The parties stipulated, and the court found, that none of the maps filed by plaintiff were executed or recorded as required by the statute governing the subdivision of land into lots for the purpose of sale. (Deering's General Laws 1923, Act 4574.) Plaintiff suggests that cemetery corporations are not governed by the provisions of this statute, but come within the terms of California Civil Code, section 608, which merely requires that a map of the cemetery be filed in the office of the county recorder. This section can have no application here, for plaintiff is attempting to establish an alleged separation of the northerly strip of land from the rest of the cemetery, and the subdivision thereof into business lots for purposes of sale. As to these lots and the alleged public alley, the Map Act should control, and it clearly appears in the stipulated facts and the findings of the court that there was no compliance with its terms. Plaintiff further claims that such lack of compliance with respect to the maps filed in 1901 (No. 156) and in 1914 (No. 317) was immaterial in view of the provisions of the Curative Act of 1921 (Deering's General Laws 1923, Act 4575). But the record does not establish that these two earlier maps showed such separation and dedication as, it is contended, is shown in the latest map filed in 1921, but after the Curative Act. Finally it must be remembered that the northerly strip was improved with lawns and shrubbery, and no physical separation from the rest of the cemetery was made until the wall was constructed in 1925, after the levying of the assessment. We think that the findings of the court to the effect that the cemetery property is a unit, no part of which is reserved for public purposes, are sufficiently sustained by the evidence.
Another contention of plaintiff is that under section 7, subdivision 10, of the Vrooman Act, the property should *127
not have been assessed as a unit, but that assessments should have been levied against the separate lots, sections and parcels, as shown on Map No. 523-R. On this point, it must again be observed that plaintiff did not comply with the requirements of the Map Act in filing its Map No. 523-R for record. [2] It has been held that the mere fact that a piece of land has been surveyed and mapped and subdivided by its owner does not warrant the placing of assessments on the separate parcels indicated thereon, where the map has not been properly recorded. (People
v. Clifford,
Plaintiff calls attention to section 613 of the Civil Code, which provides in part: "Whenever an interment is made in any lot or plat transferred to individual owners by the corporation, the same thereby becomes forever inalienable, *128
and descends in regular line of succession to the heirs at law of the owner." In Hornblower v. Masonic Cemetery Assn.,
Other cases point to the impracticability of making a separate assessment on each of a large number of cemetery lots. Thus, inMullins v. Mt. St. Mary's Cemetery, 259 Mo. 142 [168 S.W. 685, 687], the court says: ". . . if the separate cemetery lots were made the units for special tax purposes, the result would be unsatisfactory to all concerned. Some lots would be sold for the tax, and thus diverted to secular uses. . . . The cemetery, instead of being one consecrated place of burial, or all devoted to business or residence purposes, would be broken up into small fragments used for different and incompatible purposes, rendering the cemetery unfit for the repose of the dead or the activities of the living." The case went to the United States Supreme Court, and it was there said (Mt. St. Mary's Cemetery Assn. v.Mullins,
[4] Finally, it is provided in section 11 of the Vrooman Act that a party aggrieved by an act or determination in relation to the assessment shall appeal to the city council within thirty days after the date of the warrant. An objection of this character, namely, that land has been assessed as a unit instead of as a number of separate parcels, must be made by appeal to the city council, in order that such body may have the opportunity to correct its error. (McSherry v. Wood,
It therefore appears that the objections to the manner of levying the assessment are not well founded; and were, moreover, not properly nor seasonably raised. [5] We now come to a consideration of the basic question presented by this appeal: Whether the property involved is exempt from an assessment of this character. In this connection it should be borne in mind that we are dealing with a local street assessment, and not a general tax; with a private corporation organized for profit; with property not all of which has been sold for burial purposes or occupied by human bodies; and with property, the legal title to which is in the corporation.
Plaintiff points to several statutes which, it is claimed, create the exemption. The first reference is to the act providing for the formation of rural cemetery corporations, which, as amended in 1911, exempts from taxes and assessments "cemetery lands and property of any association, formed pursuant to this act. . . ." (Deering's General Laws 1923, Act 1284, sec. 10.) Plaintiff can derive no benefit from this provision, since it was organized for profit, *130
and not under this act. Article XIII, section 1b, of the California Constitution, adopted in 1926, provides that property "used or held exclusively for the burial or other permanent deposit of the human dead or for the care, maintenance or upkeep of such property or such dead, except as used or held for profit, shall be free from taxation and local assessment." This section was not passed until after the assessment was levied. Plaintiff states that the amendment merely declares the previously existing law, but no authority is cited in support of this unusual assertion, and plainly the presumption would be to the contrary. (See McCarthy v. Board of Fire Commrs.,
Plaintiff's final reference is to the statute making cemetery lots inalienable (Cal. Civ. Code, sec. 613); and to the statutes prohibiting the desecration of graves. (Cal. Pen. Code, secs. 290, 296.) It is argued that since lots and graves in which interments have been made cannot be sold by anyone or used for any purpose save burial, and that since the only procedure for collection of an assessment is by sale of the property assessed, the property of the cemetery sold for burial purposes is exempt. There are several decisions which, to some extent, tend to support this argument. In Woodmere Cemetery Assn. v. City ofDetroit,
Under their particular facts, these decisions may be perfectly sound, and it is sufficient for our present purposes to observe that they deal with situations essentially different from that which confronts us here. Plaintiff seeks to escape from the assessment on the ground that it cannot be enforced against the holders of the lots. A simple answer would be that this is an objection which might be raised by them were such an attempt made; and they could undoubtedly prevent a sale, or restrain the use of the property in any other manner than for burial purposes. (City of Harrisburg v. Harrisburg Cemetery Assn., 293 Pa. St. 390 [
The case of In re Sixth Avenue West,
It may be well at this time to summarize, briefly, the conclusions set forth in the foregoing discussion. As we understand the case of plaintiff, no serious claim is made that there is any actual exemption of its property by express statutory provision. It has, in fact, offered to pay a portion of the assessment, recognizing that there is no reason why it should ordinarily be relieved of obligations borne by other property holders. But plaintiff contends that though it may not itself be entitled to exemption, the holders of lots in the tract, which lots are devoted to burial purposes, are so entitled by virtue of the fact that the law does not permit the only method of enforcement — sale of the lots. Plaintiff recognizes further that this so-called exemption protects only the land already disposed of for burial purposes and leaves open to sale those lots unsold and retained by it. Plaintiff therefore argues that the land retained should not be burdened with the assessment of the land exempted, but should only be liable for a part of the total charge, in proportion to its area. Thus plaintiff transforms a protection of the lot holders into an exemption for itself.
We accept neither of these propositions, which seem to us to be wholly artificial, and without substantial support in the authorities. We are of the opinion that an exemption from local assessments cannot be implied from a mere immunity from the procedure of enforcement, which immunity is not even declared in the taxing statute. We conclude that the land held for burial purposes is not exempt from the assessment, but the right of sepulture cannot be sold to pay it. The corporation, however, is the holder of the legal title to the entire tract, against which the assessment is made. The obligation rests upon it, and all property in the tract, which it has and which can be sold, may properly be sold to meet that obligation.
Thus far we have considered only the question whether exemption may be derived from the provisions of the law preventing the sale of burial lots and interference with graves; and we have disposed of the argument that there is a statutory basis for the claim of exemption. [6] There remains to be considered the final question, whether private cemetery corporations should, as a matter of public policy, be exempt from local assessment. *135
This phase of the inquiry is, we think, less difficult. It is perhaps to be doubted whether such a contention should even be considered, under the circumstances. The statute providing for rural cemetery corporations has specifically granted exemption to that single type of cemetery corporation. Exemption from local assessment should, even more than exemption from general taxation, be based on express statutory authority, for every such exemption increases the burdens of other property owners, and decreases the rights of the contractor who performs the work; and an exemption from general taxation will ordinarily not include exemption from local assessments. (Los Angeles Ry. Corp. v.Los Angeles County Flood Control Dist.,
The briefs of plaintiff have cited to us a number of cases. Some are from jurisdictions where an express statutory exemption exists. (See State of Minnesota v. City of St. Paul,
None of these decisions are controlling in the present case, which is concerned with a private corporation, organized for profit, and having in its possession some property not devoted to burial purposes. The great majority of the cases have held that such a corporation is not exempt from local assessment, in the absence of an express statute.
In Garden Cemetery Corp. v. Baker,
In State v. Crystal Lake Cemetery Assn.,
See, also, Lima v. Cemetery Assn.,
We see no reason to disregard this general current of authority, for it appears to us to be founded on correct principles and sound policy. The people have seen fit to make an express exemption by constitutional amendment, in 1926. They had not seen fit to do so before that time, but were satisfied to have the exemption apply solely to corporations formed under the act providing for rural cemeteries, and not operating for profit. The lack of an express statutory exemption at the time this assessment was made is fatal to the claim of plaintiff, which claim rests purely on technical grounds. Its attack on the assessment is not that it is unjust or unreasonable, but that it is unenforceable; and not that it is unenforceable against plaintiff, but that it is unenforceable against the lot owners. No compelling principle of justice or policy is presented, sufficient to warrant *138 a determination contrary to the weight of authority, and in conflict with our own taxing statutes.
The judgment is affirmed.
Richards, J., Curtis, J., Seawell, J., Preston, J., and Waste, C.J., concurred.