Sutter Realty Co. v. City Council

PEEK, J. This is an appeal by the city of Sacramento from a judgment in favor of petitioner and respondent, Sutter Realty Company, a nonprofit cemetery corporation.

Respondent was first incorporated in 1905 as the Odd Fellows’ Lawn Cemetery, for the purpose of operating a cemetery. On November 22, 1932, its articles of incorporation were amended in order to qualify as a nonprofit corporation in conformity with the General Cemetery Act (Stats. 1931, chap. 1148, p. 2434; Deering’s Gen. Laws, 1937, Act 1288). No by-laws have been adopted by respondent. However, on August 2, 1932, the corporation adopted certain rules and regulations governing the operation of the cemetery. Its capital stock is owned by three individuals as trustees for three lodges and one encampment of the Independent Order of Odd Fellows, a fraternal and charitable organization. The three trustees also serve as directors of respondent corporation without pay.

On March 30, 1933, the Council of the City of Sacramento granted the application of respondent for an exemption under article XIII, section lb of the Constitution, and authorized the assessor-collector of the city to delete from the city’s tax rolls the real property used in the operation of respondent’s cemetery. The section in question is as follows:

“All property used or held exclusively for 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.”

In the month of August, 1942, pursuant to the authority granted under the Improvement Act of 1911 (Stats. 1911, p. 730; Deering’s Gen. Laws, 1937, Act 8199) and the Im[3]provement Bond Act of 1915 (Stats. 1915, p. 1441; Deering’s Gen. Laws, 1937, Act 8209), appellant authorized improvements upon a street bordering respondent’s property.

Respondent did not protest the proposed street work nor the award of the contract, but on January 28, 1943, petitioned the city council under sections 4801 and 4802 of the Revenue and Taxation Code for a cancellation of the assessment levied against it. The petition was denied by the city council and the corporation then sought a writ of mandate in the Superior Court of Sacramento County to compel the cancellation of the alleged illegal assessments. The city by its answer denied the allegations that respondent was a nonprofit corporation entitled to the constitutional exemption previously set forth, and alleged that respondent, by failing to protest as provided in sections 5220, 5258 and 5259 of the Streets and Highways Code, had waived its right to the relief prayed for. After a hearing upon such issues the trial court made its findings in favor of respondent and entered judgment cancelling the street assessment levied against it.