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Court of Appeal, Second District, Division 4, California.

TROOST MONUMENT COMPANY, et al., Plaintiffs and Respondents, v. CITY OF SANTA MONICA, Defendant and Appellant.

No. B066850.

Decided: January 06, 1994

Robert M. Myers, City Atty., Joseph Lawrence, Asst. City Atty., Adam Radinsky and Barry A. Rosenbaum, Deputy City Attys., for defendant and appellant. Voorhees, Knable, Tucker, Freeman & Pettler and Sidney Knable, Torrance, for plaintiffs and respondents.

This appeal concerns the validity of a Santa Monica city ordinance that allows the sale of markers at a city-owned cemetery.   The City of Santa Monica, a charter city, appeals from a judgment of the trial court declaring the ordinance invalid and enjoining the sale of such markers on the ground that the ordinance is preempted by a state statute.

The City makes three arguments challenging the judgment:  the statute does not apply to charter cities;  the sale of markers by a city-owned cemetery is a municipal affair within the authority of the City under the home rule provision of the California Constitution;  and the statute is unconstitutional because the Legislature has not affirmatively regulated the field.

We conclude that the statute applies to charter cities as well as to general law cities.   The ordinance conflicts with the statute in a matter of statewide concern, and therefore is invalid.


The City has owned and operated Woodlawn Cemetery in Santa Monica since 1907.   Santa Monica is a charter city.  (See City of Santa Monica v. Grubb (1966) 245 Cal.App.2d 718, 723, 54 Cal.Rptr. 210.)   The Santa Monica Municipal Code provides for the operation of Woodlawn Cemetery.  (City of Santa Monica Ordinance Nos. 7305–7310.)   City Ordinance section 7308 provides that the prices for all services at the cemetery are to be fixed by resolution of the City Council.

The most recent Santa Monica resolution setting prices for services at the cemetery is Resolution 7475, adopted and approved on July 28, 1987.   It sets the price of grave markers, crypt markers, and niche markers at three times the actual cost to the City.  (For convenience, we refer to all of these collectively as “markers.”)   An earlier resolution, 6636, adopted February 22, 1983, also provided for the sale of markers.

In 1980, the Legislature added section 8137 to the Health and Safety Code:  “A cemetery owned and operated by a city, county, or city and county shall not engage in the business of selling monuments or markers, and its officers and employees who manage, operate, or otherwise maintain such cemetery on a day-to-day basis shall not engage in the private business of selling monuments or markers.”  (Stats.1980, ch. 161;  all further statutory references are to the Health and Safety Code, unless otherwise stated.)   The Legislative Counsel's Digest of Assembly Bill No. 2154, the bill through which the statute was enacted, explains:  “Existing law provides a system for the regulation of cemeteries.   Under this system public cemetery districts, their officers, and their employees are prohibited from engaging in the business of selling monuments or markers.  [¶] This bill would extend the prohibition to cemeteries owned and operated by cities, counties, and cities and counties, as well as to their officers and employees, as prescribed.”

On November 15, 1989, respondents, three private retail and wholesale monument dealers, instituted a proceeding against the City, seeking a declaration that the City ordinance providing for the sale of markers was invalid.   The action also sought a permanent injunction to enjoin the sale of such markers, and damages.   The cause of action for damages was subsequently dismissed.

The trial court denied respondents' motion for summary judgment.   The parties then stipulated to trial of the matter based on the pleadings, the moving and responding papers on respondents' motion for summary judgment, and oral argument.   The trial court entered judgment in favor of respondents, finding:  “1. With respect to plaintiffs' [respondents'] First Cause of Action set forth in their Complaint for Declaratory Relief, Resolution No. 7475(CCS), adopted by the City Council of the City of Santa Monica at a meeting duly held in July 28, 1987, to the extent that it authorizes the sale of Grave Markers and Niche Markers at its WOODLAWN CEMETERY, is declared to be invalid and in contravention of and preempted by California Health and Safety Code Section 8137.  [¶] 2. With respect to plaintiffs' Second Cause of Action, set forth in their Complaint, for injunction, defendant CITY OF SANTA MONICA is hereby permanently enjoined and restrained from the sale of Grave Markers and Niche Markers in its City owned cemetery, WOODLAWN;  ․”

The City filed a timely notice of appeal from the judgment.   Its motion to stay enforcement of the judgment was denied by the trial court, and we denied the City's petition for writ of supersedeas because of the absence of facts showing entitlement to that relief.



 We first consider whether section 8137 applies to charter cities, such as the City of Santa Monica.   In doing so, we apply the general rule that an appellate court should not reach constitutional questions unless required to do so in order to dispose of the matter before it.  (See Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575, 586, fn. 7, 262 Cal.Rptr. 46, 778 P.2d 174;  Breaux v. Agricultural Labor Relations Bd. (1990) 217 Cal.App.3d 730, 745, 265 Cal.Rptr. 904.)

The City argues that section 8137 does not apply to charter cities because the statute specifically addresses cemeteries owned by “a city, county, or city and county ․,” without expressly referring to charter cities.   This conclusion is supported, the City asserts, by the language in a related section, 8136, which does expressly refer to chartered cities:  “Any city, including a chartered city, which owns and operates a cemetery may maintain a proceeding in the superior court of the county in which the cemetery is located to have any plot in the cemetery declared abandoned․”

“[O]ur first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law.   In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.   A construction making some words surplusage is to be avoided.   The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.  [Citations.]”  (Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386–1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)

Section 8137 is a part of Division 8, Part 2 of the Health and Safety Code, which governs public cemeteries.   As the parties have noted, the term “public cemetery” is not defined in Part 2 of the code.   It is defined in Part 3 of Division 8 relating to private cemeteries.   Section 8250 expressly excludes public cemeteries from coverage in Part 3.   The term “public cemetery” is defined as “a cemetery owned and operated by a city, county, city and county, or public cemetery district.”  (§ 8250.5.)   That definition was enacted in 1953.  (Stats.1953, ch. 386, p. 1647, § 16.)   It is apparent that the Legislature intended the definition to clarify the applicability of the regulations directed at private cemeteries codified in Part 3 of Division 8 of the Health and Safety Code.  (§§ 8250–8825.)   Section 8137, which was enacted after the definition of public cemeteries was added to the code, adopts the words “city, county, city and county” used in section 8250.5.

We conclude the Legislature employed this language to extend the regulation of public cemeteries to all cities.   A similar issue was reviewed and the same conclusion reached in City of Los Angeles v. Department of Health (1976) 63 Cal.App.3d 473, 477–479, 133 Cal.Rptr. 771.   In that case, the issue was whether a provision of the Welfare and Institutions Code defining the use of property to house the mentally ill as a “residential use” applied to charter cities.   The version of Welfare and Institutions Code section 5116 in effect at the time limited the conditions that “any city or county” could impose on such a use through a conditional use permit.  (See Hist. Note, 73B West's Ann.Welf. & Inst.Code (1984 ed.) § 5116, p. 31;  City of Los Angeles v. Department of Health, supra, 63 Cal.App.3d at p. 476, 133 Cal.Rptr. 771.)   The court concluded that the statute was intended to apply equally to chartered and general law cities by reference to cities and counties without distinction, and that the statewide policy could be achieved only by equal application to all municipalities.  (Id. at p. 478, 133 Cal.Rptr. 771.)

It is instructive that the only section in this part of the code which expressly refers to chartered cities is section 8136.   Other sections refer to “incorporated cities” and towns (§ 8125);  “any city” (§§ 8126, 8127);  “cities, towns, or neighborhoods” (§ 8129);  or “city” (§§ 8130, 8131);  or “any city or city and county” (§ 8134).   We believe this language evidences a legislative intent to regulate cemeteries owned and operated by any municipality, whether chartered or general law.   Therefore, we conclude that section 8137 applies to Santa Monica.   We turn to the constitutional question.


 The City argues that section 8137 is invalid under California Constitution, article 11, section 5, which provides in pertinent part:  “(a) It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws.   City charters adopted pursuant to this Constitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith.”

 This section, known as the “home rule” provision, grants charter cities sovereignty over “municipal affairs.”  (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 5–6, 283 Cal.Rptr. 569, 812 P.2d 916, hereafter California Federal.) 1  The determination of what constitutes “municipal affairs” within the meaning of the home rule provision has bedeviled appellate courts for nearly a century.  (Id. at p. 6, 283 Cal.Rptr. 569, 812 P.2d 916.)

In 1991, the California Supreme Court addressed the issue, clarifying the appropriate analysis.  (California Fed. Savings & Loan Assn. v. City of Los Angeles, supra, 54 Cal.3d at p. 18, 283 Cal.Rptr. 569, 812 P.2d 916.)   The court explained:  “ ‘[H]ome rule’ is a means of adjusting the political relationship between state and local governments in discrete areas of conflict.   When a court invalidates a charter city measure in favor of a conflicting state statute, the result does not necessarily rest on the conclusion that the subject matter of the former is not appropriate for municipal regulation.   It means, rather, that under the historical circumstances presented, the state has a more substantial interest in the subject than the charter city.”  (Ibid.)

There is no dispute with respect to the first step of the analysis.   There is an actual conflict between the state statute and the charter city measure, since section 8137, prohibits any sale of markers by cities, while the Santa Monica ordinance and resolutions provide for such sales by the City.

The second step in the analysis under California Federal is to determine whether the subject matter of the statute is one of “statewide concern.”  (54 Cal.3d at p. 17, 283 Cal.Rptr. 569, 812 P.2d 916.)  “If the subject of the statute fails to qualify as one of statewide concern, then the conflicting charter city measure is a ‘municipal affair’ and ‘beyond the reach of legislative enactment.’  [Citation.]․  If, however, the court is persuaded that the subject of the state statute is one of statewide concern and that the statute is reasonably related to its resolution, then the conflicting charter city measure ceases to be a ‘municipal affair’ pro tanto and the Legislature is not prohibited by article XI, section 5(a), from addressing the statewide dimension by its own tailored enactments.”  (Ibid.)  The test is “the identification of a convincing basis for legislative action originating in extramunicipal concerns, one justifying legislative supersession based on sensible, pragmatic considerations.  [T]hat is, whether the showing before the superior court supports the Legislature's finding of a need for paramount state control․”  (Id. at p. 18, 283 Cal.Rptr. 569, 812 P.2d 916;  see also Johnson v. Bradley (1992) 4 Cal.4th 389, 398–400, 14 Cal.Rptr.2d 470, 841 P.2d 990.)

The City argues that its sales of markers is a purely local matter, with no effects beyond the city limits, since only persons with a connection to Santa Monica may purchase a plot or crypt at Woodlawn Cemetery, and the City only sells markers for use at that cemetery.   The City characterizes section 8137 as “the result of special-interest lobbying designed solely to benefit private interests.”   It asserts that the sale of markers in public cemeteries is not a matter of statewide concern, contrasting the extensive regulation of private cemeteries by the state with what it claims is a virtual absence of regulation governing public cemeteries.

Respondents rely on cases decided before California Federal in arguing that the City's interest in obtaining additional revenue from the sale of markers does not differ from municipality to municipality, and therefore is a matter of statewide concern.

The question comes down to the characterization of what is being regulated.   The City would focus attention solely on regulation of the sale of markers, to the exclusion of legislation relating to other aspects of cemeteries and the disposition of human remains.   Seen that way, it asserts, the subject matter is within the reservation of the home rule provision.   Respondents argue that the subject matter at issue is cemeteries and the disposition of human remains, a matter of statewide concern on which the Legislature is empowered to act, and has acted, and that regulation of the sale of markers is simply an aspect of that authority.

We agree with respondents.   The statewide concern with the disposition of remains is fulfilled by comprehensive Health and Safety Code provisions devoted to the subject of disposing of human remains in a dignified and respectful manner which protects the public safety.   This is an extramunicipal concern which applies throughout the state.   The Legislature has enacted criminal and civil penalties for vandalism of burial sites (§§ 8101–8102);  specified extensive requirements for burials (§§ 8113–8113.6);  extensively regulated the operation and management of private cemeteries (§§ 8250–8829), cemeteries operated by public cemetery districts (§§ 8890–9225), and mausoleums and columbariums (§§ 9501–9677);  and provided for the handling of abandoned cemetery plots (§§ 9300–9309).

This comprehensive scheme reserves a role for local entities in the regulation of cemeteries:  “The governing body of any city or county, in the exercise of its police power, may by ordinance prescribe such standards governing burial, inurnment, and entombment and such standards of maintenance for cemeteries, including mausoleums and columbariums, as it shall determine to be reasonably necessary to protect the public health or safety, assure decent and respectful treatment of human remains, or prevent offensive deterioration of cemetery grounds, structures, and places of interment.   Such standards may be made applicable to every public and private cemetery within the city or county.  [¶] Nothing in this section supersedes any provision of this division [Division 8] or Division 7 (commencing with Section 7000) or authorizes the adoption of local standards in conflict with such provisions, except that city or county ordinances adopted pursuant to this section shall prevail over the rules and regulations of any private or public cemetery to the extent of any conflict.”  (§ 8115, emphasis added.)

 We recognize that the Legislature may not, by “ ‘attempting to deal with a particular subject on a statewide basis,’ ” define what is a matter of statewide concern.  (Johnson v. Bradley, supra, 4 Cal.4th 389, 405, 14 Cal.Rptr.2d 470, 841 P.2d 990.)   Instead, “we must be satisfied that there are good reasons, grounded on statewide interests, to label a given matter a ‘statewide concern.’ ”  (Ibid.)  We conclude that the disposition of human remains is such a matter of statewide concern, and is not excluded by the home rule provision.   The Legislature acted within its power to grant a role to local entities in the management of public cemeteries (§§ 8130, 8133), but chose to limit that authority by prohibiting the sale of markers by cities.   This statutory scheme is not invalid under article XI, section 5 of the California Constitution.2


The judgment is affirmed.   Each party is to bear its costs on appeal.


1.   California Constitution, article 11, section 4, grants similar powers to charter counties.

2.   Our conclusion that the Legislature has extensively regulated the subject matter disposes of the City's argument that the Legislature failed to affirmatively regulate this field.  (See City of Santa Monica v. Yarmark (1988) 203 Cal.App.3d 153, 171, 249 Cal.Rptr. 732.)

EPSTEIN, Acting Presiding Justice.

HASTINGS and CONWAY,* JJ., concur.

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