Cypress Lawn Cemetery Ass'n v. City & County of San Francisco

WASTE, C. J.

The above-entitled causes, consolidated for purposes of appeal, present appeals from judgments rendered after the overruling of general demurrers, and require determination of the single legal question as to whether or not the properties described in the respective complaints are, under the allegations thereof, exempt from taxation by the provisions of section lb of article XIII of the state Constitution, adopted November 2, 1926. As the facts involved in these appeals differ only as to the party plaintiff and the property owned, we will set out in substance only the allegations of the complaint filed by the .Cypress Lawn Cemetery Association.

It is therein alleged that the defendant was and is a municipal corporation; that the plaintiff was, and is a eeme

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tery association incorporated under sections 608 to 617, both inclusive, of the Civil Code, and has been and is maintaining a cemetery in the county of San Mateo wherein it has sold and granted the perpetual right of burial to many thousands of persons, and the bodies of many thousands of human dead have been buried; that said plaintiff has received a surplus from the sale of lots which, under sections 610 and 611 of the Civil Code, can only be used for the improvement, embellishment and preservation of said cemetery and not for dividends; that the plaintiff, under section 616 of the same code, has received trust moneys, and under section 617 has contracted for the perpetual care of certain lots in the cemetery for which it holds trust moneys; that, at the time of the assessment hereinafter mentioned it was the owner, by the investment of such trust moneys in accordance with said sections 616 and 617, of land, improved with a hotel then operated by it for peculiar reasons set forth, located in the city of San Francisco; that “said cemetery is used and held exclusively for the burial or other disposition of the human dead, and the said trust funds with the proceeds thereof, and the entire net proceeds and income from the whole of said trust fund is used exclusively for the care, maintenance and upkeep of said cemetery and the care of said

dead;

and, no part of said trust fund, nor of the proceeds or income thereof ever has been, or lawfully can be used or held for profit of said plaintiff, or its members”. Then, appropriately, the taking of the various steps required by law for the assessment and levying of taxes against such property and the payment of such taxes under protest is alleged. Plaintiff seeks recovery of the amount of taxes so paid and their cancellation.