Opinion
Rehearing Denied Feb. 13, 1930
Hearing Granted by Supreme Court March 13, 1930
Appeal from Superior Court, City and County of San Francisco; Daniel C. Deasy, Judge.
Suit by the Cypress Lawn Cemetery Association against the City and County of San Francisco. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.
COUNSEL
John J. O’Toole, City Atty., and Walter A. Dold, Chief Deputy City Atty., both of San Francisco, for appellant.
Brittain & Weise, of San Francisco, for respondent.
Everett W. Mattoon, Co. Counsel, and W. Sumner Holbrook, Jr., Deputy Co. Counsel, both of Los Angeles, amici curiae.
OPINION
GRAY, Justice pro tem.
This appeal from a judgment, rendered after the overruling of a general demurrer, presents for decision the single legal question as to whether or not the properties described in the complaint are, under its allegations, exempt from taxation by the provisions of article 13, section lb of the state Constitution.
The complaint alleges that the defendant was and is a municipal corporation; that the plaintiff was and is a cemetery 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 said 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 said cemetery for which it holds trust moneys; that at the time of the assessment 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 such taxes so paid under protest and their cancellation.
The constitutional provision here involved and decisive of the present dispute reads as follows: "All 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."
Subject to the exception, this provision exempts from taxation and local assessment two kinds of property, classified on the basis of its use, but without consideration of the status or character of its owner or possessor, to wit: (1) That "used or held exclusively for the burial or other permanent deposit of the human dead"; and (2) that "used or held exclusively *** for the care, maintenance or upkeep of such property" (i.e., the first class) "or such dead" (i.e., human dead so deposited or buried). The exception "except as used or held for profit" qualifies the phrase "all property" and therefore restricts or limits both classes of property. We are here concerned only with the second class as affected by the exception.
If the language of this provision is plain and unambiguous, that language is mandatory and its meaning and intent is solely to be gathered therefrom, without consideration of the argument in favor of its adoption, or the mischiefs arising from the administration of pre-existing laws or the public policy towards the institution involved. San Francisco v. McGovern, 28 Cal.App. 491, 152 P. 980. The words employed must be given the meaning which they bear in ordinary use. Shay v. Roth, 64 Cal.App. 314, 221 P. 967. A word repeatedly used in a constitution will bear the same meaning throughout the instrument, unless it is apparent that another meaning was intended. Miller v. Dunn, 72 Cal. 462, 14 P. 27, 1 Am.St.Rep. 67. Section 1 of article 13 declares what is to be included in the word "property." The phrase "exclusively used" appeared, prior to the adoption of section 1b, in section 1, relative to the exemption of public schools, in section 1½, relative to exemption of churches (see Havens v. County of Alameda, 30 Cal.App. 206, 157 P. 821), and in section 14a, relative to the taxation of public utilities (see Lake Tahoe Ry., etc., Co. v. Roberts, 168 Cal. 551, 143 P. 786, Ann.Cas.1916E, 1196; Southern Pacific Co. v. Richardson, 181 Cal. 280, 184 P. 3). The frequency of the occurrence of the verb "use" in the same article shows that it has a definite, fixed, and well-understood meaning. "The verb ‘to use’ means to employ; to put to a purpose; to employ for the attainment of some purpose or end; to avail one’s self of, 39 Cyc. 846." Whitaker v. Regents etc., 39 Cal.App. 111, 115, 178 P. 308, 310. Webster defines "hold" as "to own or possess." See, also, 29 C.J. 758. "The statute exempting property of the board has exempted ‘all property, real or personal, held by the board of education.’ The world ‘held,’ as used in the statute, means owned. State v. South Penn. Oil Co., 42 W.Va. 80, 24 S.E. 688." Wey v. Salt Lake City, 35 Utah, 504, 508, 101 P. 381, 382.
According to Webster, "care" means "charge, oversight or management." Of the same word, 9 C.J. 1286, says: "As a noun, a relative term and a broad comprehension, meaning responsibility, charge or oversight; watchful regard and attention. The term may mean also safekeeping, preservation and security. Furthermore, it has been used synonymously with custody, diligence, maintenance, possession and protection." Webster defines "maintenance" as "support" or "sustenance," and "upkeep" as "maintenance" or "repair." "Maintenance" has been defined as meaning "the act of maintaining, keeping up, *** preservation, subsistence, supply of necessaries and conveniences." 38 C.J. 338. "Now, the operation of a business or property includes payment for labor and materials which go into the actual operation thereof, while maintenance means the upkeep or preserving the condition of the property to be operated. ***" San Francisco & P.S.S. Co. v. Scott (D.C.) 253 F. 854, 855.
"Profit" is defined by Webster as "the excess of income over expenditure" and as synonymous with "benefit." "The word ‘profits’ signifies an excess of the value of returns over the value of advances. *** The ‘rents and profits’ of an estate; the ‘income’ or ‘net income’ of it,— are all equivalent expressions. Andrews v. Boyd, 5 Me. [5 Greenl.] 202; Earl v. Rowe, 35 Me. 420 [58 Am.Dec. 714]. *** In People v. Board Sup’rs Niagara Co., 4 Hill [[[[N.Y.] 20, Bronson, J., said: ‘It is undoubtedly true that "profits" and "income" are sometimes used as synonymous terms; but, strictly speaking, "income" means that which comes in or is received from any business or investment of capital, without reference to the outgoing expenditures; while "profits" generally means the gain which is made upon any business or investment, when both receipts and payments are taken into the account.’ " People v. Saving Union, 72 Cal. 199, 202, 13 P. 498, 499. See, also, Bates v. Porter, 74 Cal. 224, 15 P. 732; Cuneo v. Giannini, 40 Cal.App. 348, 180 P. 633. The term "profit" has a larger meaning than "dividends" and covers benefits of any kind, excess of value over cost, acquisition beyond expenditure, gain, or advance. Simcoke v. Sayre, 148 Iowa, 132, 126 N.W. 816. " ‘Profits’ and ‘dividends’ are not necessarily synonymous terms. City of Allegheny v. Pittsburgh, A. & M.P.R. Co., 179 Pa. 414, 36 A. 161." Boothe v. Summit Coal Min. Co., 55 Wash. 167, 104 P. 207, 212, 19 Ann.Cas. 1255. Since the determinative words in the above-quoted constitutional provision are in frequent, common, and everyday use and have definite, fixed, and unambiguous meanings, readily understood by the voter of ordinary intelligence, it is apparent that the provision means just what it says and needs no interpretation by use of extrinsic aids. Paraphrasing the section, by substituting definitions for original words, it reads as follows: All moneys and things, real, personal, and mixed, employed or owned, not for income, but solely for the oversight, preservation or repair of the burial places, is exempt from taxation. The grouping of the various words creates no ambiguity when so read.
It is apparent from a reading of the section that property to be exempt must possess two characteristics, i.e., it must fall within the limitation that it be used or held exclusively for the care, maintenance or upkeep of burial grounds, and it must also fall without the exception that it be used or held for profit. Since constitutional provisions exempting private property from taxation are strictly construed, and grants of exemptions cannot be allowed unless the intention to do so is expressed in direct terms or is fairly inferable from the language of the provision, it was incumbent upon plaintiff to plead sufficient facts to bring its property within the limitation and without the exception. 24 Cal.Jur. 89. The complaint alleges that plaintiff’s hotel is "centrally located income producing improved real estate" in the city and county of San Francisco, purchased, pursuant to sections 616 and 617 of the Civil Code, with moneys held in trust, in accordance with said sections, for the improvement of its cemetery, located in San Mateo county. While due attention has been given to adjudications from other states, construing similar laws, cited by respective counsel and obtained by research, no material assistance in solving the present question is thereby gained because of the different wording of such laws (Hallidie v. Enginger, 175 Cal. 505, 166 P. 1), and so no discussion of those cases will be here given. Obviously, since there is no physical connection between the hotel and the cemetery, located in different counties, it cannot be said that the direct and primary use or ownership of the hotel is exclusively for the care, maintenance or upkeep of the cemetery. But plaintiff urges that, since the income from the hotel is so used, the hotel itself is therefore so used and owned. Stated another way, plaintiff admits that the corpus of the trust is not directly so used or owned, but contends that, since the income derived from the corpus is so applied, such income is exempt and can pass its exemption back to its corpus. However, such reasoning inserts in the provision language not there present, for the exemption is given to the property itself without consideration as to whether it is income producing or as to the disposition of such income. Had it been the intention to grant the exemption upon the basis of the use of the income from the property rather than upon the use of the property itself, such intention would have been directly and positively expressed.
Plaintiff further argues that since a cemetery’s investment is limited by such sections of the Civil Code to (1) government bonds, (2) first mortgages, and (3) centrally located income producing real estate, and the first two classes of investment are exempt, it must have been the intention to extend this exemption to the third class. Three answers readily occur to meet this argument, to wit: (1) There being no ambiguity, questions of policy cannot be considered; (2) the exemptions of the first two classes are granted to them and not to their owners; and (3) a constitutional provision as to taxation cannot be construed with reference to a statute regulating investment of trust funds by cemeteries. The mere fact that the disposition of the income is beneficial to the burial grounds, which are exempt, does not extend that exemption through the income back to the property, from which the income is derived. Hart v. Plum, 14 Cal. 149.
The complaint, in order to negative that the property falls within the exception, further alleges that the income from the hotel cannot be used or held for the benefit of the plaintiff corporation or its members. From the foregoing definitions of the word "profit" it is seen that it is here used as synonymous with "income" and not "dividends." Restriction upon the use to which plaintiff, as trustee, can put such income under such sections of the Civil Code, does not make such income, so far as the use and ownership of the hotel is concerned, any less a profit. Since it is alleged that an income is derived from the hotel, it is apparent that the hotel itself is used and owned for profit. The exception denies exemption, if profit is received from the property, and does not limit itself to such profit, by which the owner may benefit. Were consideration given to policy, it might well be doubted whether it was intended to give such broad exemption, which, in practice, by exempting considerable holdings of developed business property, would increase the burden on property not exempted.
For the foregoing reasons, the judgment is reversed with instructions to the trial court to sustain the demurrer without leave to amend the complaint and thereupon render judgment in favor of the defendant.
We concur: KNIGHT, Acting P.J.; CASHIN, J.