Eden Memorial Park Ass'n v. Superior Court In and For Los Angeles County

• Decision Date: 24 February 1961
• Citation: 11 Cal.Rptr. 189,189 Cal.App.2d 421
• Court: California Court of Appeals Court of Appeals
• Parties: EDEN MEMORIAL PARK ASSOCIATION, a California non-profit corporation, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR COUNTY OF LOS ANGELES, Respondent. Department of Public Works of the State of California, Real Party in Interest. Civ. 25260.

Page 189

11 Cal.Rptr. 189

189 Cal.App.2d 421

EDEN MEMORIAL PARK ASSOCIATION, a California non-profit corporation, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR COUNTY OF LOS ANGELES, Respondent Department of Public Works of the State of California, Real Party in Interest.

Civ. 25260.

District Court of Appeal, Second District, Division 3, California.

Feb. 24, 1961.

Rehearing Denied March 15, 1961.

Hearing Denied April 19, 1961.

Sandler & Rosen, Beverly Hills, and Thorpe, sullivan, Clinnin & Workman, Los Angeles, for petitioner.

George C. Hadley, San Diego, George W. Miley, and Charles E. Spencer, Jr., Los Angeles, for real party in interest.

Loeb & Loeb and Herman F. Selvin, Los Angeles, amici curiae.

NOURSE, Justice pro tem.

Petitioner is a nonprofit corporation organized under the laws of this state. It owns and operates a cemetery known as the Eden Memorial Park Cemetery situate within the boundaries of the city of Los Angeles. The lands included within the boundaries of said cemetery have been dedicated for cemetery purposes in accordance with the laws of this state. By the petition here, petitioner seeks to restrain the respondent court from proceeding in an action brought by real party in interest, the Department of Public Works of the State of California, to condemn portions of the dedicated property for use as a freeway and to annul ¹ an order made by the respondent court granting to real party in interest the right to the immediate possession of the land sought to be condemned.

The sole question presented here is: May the state exercise the power of eminent domain so as to condemn and take for freeway purposes lands which have been theretofore dedicated exclusively to cemetery purposes, or are such lands exempt from such condemnation by the state? The answer to this question depends upon the construction placed upon sections 8560 and 8560.5 of the Health and Safety Code. ² Section 8560 reads: 'Construction of thoroughfares or utilities through cemeteries. After dedication pursuant to this chapter, and as long as the property remains dedicated to cemetery purposes, no railroad, street, road, alley, pipe line, pole line, or other public thoroughfare or utility shall be laid out, through, over, or across any part of it without the consent of the cemetery authority owning and operating it, or of not less than two-thirds of the owners of interment plots.'

There is no contention on the part of respondent or real party in interest that it was not the intent of the Legislature, by this statute, to exempt property dedicated to cemetery purposes from classes of property which are subject to be taken under the power of eminent domain but they assert that they are not so exempt when the state or any agency thereof, such as real party in interest, seeks to take the property for freeway purposes. They base this assertion upon the rule that "laws in derogation of sovereignty are construed strictly in favor of the state and are not permitted to divest it or its government of any prerogatives, unless intention to effect that object is clearly expressed" and that '[a] statute will not be construed to impair or limit the sovereign power of the state to act in its governmental capacity and perform its governmental functions in behalf of the public in general, unless such intent clearly appears.' People v. Centr-O-Mart, 34 Cal.2d 702, 703-704, 214 P.2d 378, 379.

'Where a statute is not expressly made applicable to government, it is for the courts to determine whether the Legislature intended it to apply to government. In making that determination, it is proper to consider all matters which, under the rule of statutory interpretation, shed light on the legislative intention.' People v. Centr-O-Mart, supra, 34 Cal.2d at page 704, 214 P.2d at page 379.

In interpreting a statute the court must first ascertain the purpose sought to be accomplished by the statute and then place such an interpretation on it as will promote rather than defeat that purpose. In construing the statute in question here it should be kept in mind that the rule, heretofore quoted, which real party in interest seeks to invoke, applies not alone to the state but to its various agencies and subdivisions. Butterworth v. Boyd, 12 Cal.2d 140, 150, 82 P.2d 434, 126 A.L.R. 838; Balthasar v. Pacific Elec. Ry. Co., 187 Cal. 302, 305-310, 202 P. 37, 19 A.L.R. 452; Estate of Miller, 5 Cal.2d 588, 597, 55 P.2d 491.

It has long been the policy of this state that places where the dead are buried shall be protected and preserved against interference, molestation or desecration. This policy was first expressed by the Legislature in 1859 when by statute the Legislature exempted all cemeteries from public taxes and provided that so long as the land was held for cemetery purposes no street, avenue, road or thoroughfare should be laid out over it (Stats.1859, pp. 281, 284), and has been adhered to since that time (see Stats.1911, p. 1100; Stats.1931, ch. 1148, p. 2451; Stats.1939, ch. 60, §§ 8558, 8559, 8560 and 8561), and in 1926 the people took away from the government of the state the right to exercise its inherent sovereign power to tax insofar as certain property dedicated to cemetery use was concerned. Cal.Const. art. XIII, § 1b. The Legislature has not only protected burial grounds from molestation and desecration through invasion thereof by the public by means of public roads, highways and thoroughfares, but exempted them from assessments for public improvement, sale on execution and the conveyance thereof from the rule against perpetuities and restraint upon alienation (§§ 8559-8561, Health & Saf.Code), and its purpose in so doing is clearly expressed in section 8559 of the Health and Safety Code (this is a codification of Stats.1931, ch. 1148, § 8), through the following language: 'Dedication to cemetery purposes pursuant to this chapter * * * shall be deemed to be in respect for the dead, a provision for the interment of human remains, and a duty to, and for the benefit of, the general public.' (Emphasis added.)

It is clearly and admittedly the purpose of the statutes to exclude real property dedicated to cemetery purposes from property which may be taken, under the powers of eminent domain, for roads, ³ streets or other public thoroughfares. It is self-evident that this purpose would be defeated if the state, its agencies or its political subdivisions may exercise the power of eminent domain to take such dedicated property for those purposes, for they, and they only, have the power to take private property for those purposes.

Real party in interest asserts that the power of eminent domain was...