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District Court of Appeal, Second District, Division 2, California.

EDEN MEMORIAL PARK ASSOCIATION, a California non-profit corporation, and Sol Rosenberg, Plaintiffs and Appellants, v. The DEPARTMENT OF PUBLIC WORKS of the State of California et al., Defendants and Respondents.

Civ. 26719.

Decided: December 20, 1962

Sandler & Rosen, Nelson Rosen, Thorpe, Sullivan, Clinnin & Workman, Los Angeles, for appellants. Stanley Mosk, Atty. Gen., N. B. Peek, Don G. Kircher, Deputy Attys. Gen., for respondents State Treasurer and State Controller. George C. Hadley, Los Angeles, George W. Miley, Pacoima, Charles E. Spencer, Jr., Los Angeles, and Robert E. Reed, Sacramento, of counsel, for remaining respondents.

Appellants herein obtained from Division Three of this court, prior to the commencement of this action, a peremptory writ prohibiting the Superior Court of Los Angeles County from taking further proceedings in a condemnation action brought by the State of California, acting through its Department of Public Works, for the taking in fee for state highway purposes a portion of a certain private cemetery owned and operated by appellant Eden Memorial Park Association; the writ followed a holding that use for a public highway would violate §§ 8560 and 8560.5 of the Health and Safety Code of this state.

Section 8560 provides: ‘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.'1 The taking for such use by condemnation was also held in Eden Memorial Park Ass'n. v. Superior Court, 189 Cal.App.2d 421, 11 Cal.Rptr. 189, to be equally contrary to the declared public policy of this state. That decision was rendered on February 24, 1961.

Ever since that date appellants have been engaged in resisting a determined effort on the part of the Board of Public Works, the State Highway Commission and other public officials, to build said freeway across said cemetery in disregard of that prohibition decision and to the subversion of the plainly declared public policy of the state,—all of them public officials bound to uphold the laws of the state.

The facts are set forth in a ‘Stipulation of Facts for Disposition on the Merits' upon which the instant action was submitted; said stipulation is supplemented herein at times by judicial notice of files of this court in related proceedings, all of which are mentioned in said stipulation.

Eden Memorial Park Association (sometimes referred to as Eden) is a non-profit corporation organized in California; it owns and operates a private cemetery known as Eden Memorial Park Cemetery within the boundaries of the City of Los Angeles. Sol Rosenberg (one of appellants) is a director of the cemetery corporation and a taxpayer; he sues in the latter capacity.

Paragraph 4 of the stipulation says: ‘Eden Cemetery is a private cemetery, operated and conducted in accordance with the provisions of Sections 8275 through 8806 of the Health and Safety Code of the State of California. It is held, occupied and used exclusively for a cemetery and for cemetery purposes. It was dedicated exclusively for cemetery purposes on or about July 4, 1954, pursuant to the provisions of Sections 8550 through 8561 of the Health and Safety Code of the State of California. Approximately 60 acres of land are included within the gross land area of said cemetery. That part of the cemetery involved in this case is described in ‘Exhibit 1’ to the Complaint filed herein, and said description is incorporated herein by reference. Hereinafter said part will be referred to as the ‘subject land’, and it contains approximately 11.740 acres. No burials have thus far been made in the subject land, although within the last five years, approximately 1,000 burials have been made in other portions of Eden Cemetery.'

Paragraph 5: ‘Proposed plans for the construction of the San Diego Freeway and the Golden State Freeway, to be a part of the National System of Interstate and Defense Highways, in the vicinity of the subject land were submitted by the Division of Highways of the Department of Public Works of the State of California to the Federal Bureau of Public Roads by Contracts Nos. 1–005–3(34) 154 and 1–405–3(35) 163, pursuant to Section 105, Subdivision (a) of 23 U.S.C.A. Said proposed plans were approved by the Federal Bureau of Public Roads by contracts with the said Division of Highways of the Department of Public Works executed on June 22, 1955.2 Copies of said contracts, marked ‘Exhibit 1(a)’ and ‘Exhibit 1(b)’ are submitted herewith and may be introduced herein as exhibits.' (Emphasis added.)

Paragraph 9: ‘Eden and the owners of interment plots in Eden Cemetery do not consent to and have never consented to the laying out of a freeway, or a road, or a public thoroughfare through, over or across Eden Cemetery, or across the land embraced within the boundaries of said cemetery or the subject property * * *.’

The California Highway Commission adopted a resolution on August 31, 1960, authorizing the acquisition by condemnation of a described portion of the cemetery property ‘for State highway purposes in connection with State highway road, VII–LA–158–LA, declared a freeway.’ The action was filed in Los Angeles on November 1, 1960, and on November 7 the superior court made an ex parte order for immediate possession. Motion to vacate was made by Eden and was denied on January 5, 1961. Thereupon Eden and Rosenberg filed their petition for writs of review and prohibition which was vigorously opposed by the Department of Public Works of the State. In an opinion filed on February 24, 1961, Division Three of this court annulled the order granting immediate possession and ordered the issuance of a peremptory writ prohibiting the court from proceeding further in the condemnation action. Speaking through Nourse, J. pro tem, the court said, in part: ‘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. * * * 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.’ (189 Cal.App.2d p. 423, 11 Cal.Rptr. p. 190.)

‘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, 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.’ (159 Cal.App.2d pp. 424–425, 11 Cal.Rptr. p. 191.)

‘The Legislature has granted to real party in interest the right to exercise the state's power of eminent domain. Section 102 of the Streets and Highways Code provides in part: ‘In the name of the people of the State of California, the department may condemn for State highway purposes, under the provisions of the Code of Civil Procedure relating to eminent domain, any real property or interest therein which it is authorized to acquire.’ (Emphasis added.)' (159 Cal.App.2d pp. 425–426, 11 Cal.Rptr. p. 192.)

‘* * * If dedicated cemetery property remains subject to the power of the state, its agencies and political subdivisions, to take property for roads, streets, alleys or other public thoroughfares, the prohibitions against the establishment of them across the dedicated property are, as we have shown, meaningless and of no effect. It is our duty, if possible, to place a construction upon both statutes which will reconcile them and make each effective. [Citations.] As we interpret the provisions of the Health and Safety Code in question, their effect is to exempt from the classes of property which may be taken under the provisions of section 1240, Code of Civil Procedure, property dedicated for cemetery use. This interpretation does not leave the statutes in conflict but renders each effective to accomplish the purposes for which it was enacted.’ (P. 426, 11 Cal.Rptr. p. 192.) Petition for rehearing was denied on March 15, 1961, and petition for hearing in the Supreme Court denied unanimously on April 19, 1961.

Respondents immediately set forth upon a campaign to defeat the ruling and to deprive appellants herein of its benefits. In so doing they lost sight of the proprieties which govern the actions of public officers and agents. Public office is a public trust and the incumbent has a clear duty of fealty to the laws of the State, whether declared by statute or court decisions or both, a duty to uphold and enforce the same, never to undermine or subvert the declared public policy of his master, the State. ‘It is elementary that public officials must themselves obey the law. It has been expressly held in this state that expediency cannot justify the denial of an injunction against the expenditure of public funds in violation of the constitutional guarantees here involved.’ (Wirin v. Parker, 48 Cal.2d 890, 894, 313 P.2d 844, 846.) ‘If the plaintiff can establish the truth of the allegations made, which amount to charges of collusion and conspiracy on the part of city and state officers to divert dedicated park property to freeway use, in violation of the original grant and of the City Charter, and the other allegations, a case has been made out which would seem to justify the relief prayed for. Moreover, the plaintiff will then be entitled, under the complaint, to a declaratory judgment definitely confirming, refuting, limiting or interpreting, as the evidence requires, the nature and extent of rights and obligations arising out of the original grant, and the defendants' alleged right to divert the use of the Griffith Park property.’ (Griffith v. Department of Public Works, 141 Cal.App.2d 376, 381, 296 P.2d 838, 842.) ‘If that which is enacted in the form of a statute is within the general sphere of legitimate legislative, as distinguished from executive and judicial, action, and not forbidden by the Constitution, it is the supreme law of the land,—supreme over all in public stations as well as over all the people. ‘No man in this country,’ this court has said, ‘is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.’' (Burton v. United States, 202 U.S. 344, 368, 26 S.Ct. 688, 693, 50 L.Ed. 1057.) To the same effect see, Gogerty v. Coachella Valley Junior College Dist., 57 Cal.2d 727, 732, 21 Cal.Rptr. 806, 371 P.2d 582; Terry v. Bender, 143 Cal.App.2d 198, 206, 300 P.2d 119; Patton v. Board of Health, etc., 127 Cal. 388, 393, 59 P. 702; 45 Cal.Jur.2d § 19, p. 411; 40 Cal.Jur.2d § 8, p. 647; 43 Am.Jur. § 262, p. 79.

Mr. Chief Justice Vanderbilt, in Imbrie v. Marsh, 3 N.J. 578, 71 A.2d 352, 360, after striking down a statute which attempted to add to the constitutionally prescribed oath of a public officer, said: ‘This decision in nowise affects the duty of allegiance owed by a legislator or state officers generally to the State. Even though it is beyond the power of the Legislature to prescribe an oath of allegiance for members of the Legislature and other state officers, they are nevertheless bound, along with every other citizen, in their allegiance to the State even in the absence of an oath.’

On February 28, 1961 (2 days after the Eden decision) and again on March 16, 1961, before the filing of a petition for hearing in the Supreme Court (April 5, 1961), respondents herein turned to the federal government with a request that the Federal Bureau of Public Roads condemn the desired portion of the Eden land. On March 20, 1961, a month before the State Supreme Court denied a hearing, ‘a document was executed with respect to the payment of 10% or some lesser sum of the costs incurred in acquiring the subject land.’ It took the form of a letter, exhibit 2 herein, running from the State Highway Engineer to the Division Engineer of Bureau of Public Roads, referred to the Federal-Aid Highway Act of 1958 and that of 1956, the payment of ten per cent or less of the costs incurred in acquiring the subject land and explained that ‘[t]he purpose of this letter is to supplement our presentation in regards to the State's agremeent to pay costs in connection with this proposed litigation to be carried on by the United States.’ (Emphasis added.)3 Referring to that document as an agreement, the stipulation of facts says that ‘[p]ursuant to said agreement, the Federal Highway Administrator on April 27, 1961, caused to be filed action No. 507–61–TC Civil (complaint in condemnation) in the United States District Court, Southern District of California, Central Division. Said action, hereinafter referred to as ‘the federal action’, sought to acquire the subject land for the construction of said portions of the Golden State and San Diego Freeways, being portions of the National System of Interstate and Defense Highways.' A declaration of taking was filed on April 27, 1961, a deposit of $144,000 was made for the benefit of the owners, and an order for possession was made on May 15, 1961, which order is not appealable under federal law.

The Federal-Aid Highways Act of 1958 (23 U.S.C.A. § 101 et seq.) shows, contrary to respondents' present contentions, that the condemnation by the United States Government therein referred to is intended as an acquisition of a land title which is to be forthwith transferred to the State and that the highway is to be built by the State and becomes a State highway in fact, not one belonging to, constructed by or maintained by the federal government.4 A review of some of the pertinent provisions of that statute becomes necessary here.

Section 105 contemplates that a State highway department desiring to avail itself of the benefits of the Act shall file with the Secretary of Commerce for his approval a program or programs of proposed projects for utilization of the funds apportioned thereto. Section 106 requires the Secretary to act upon the program submitted to him as soon as possible and authorizes him to approve the same wholly or in part. Section 107 authorizes the Secretary to acquire by purchase, donation, condemnation or otherwise lands required by the State for right-of-way or other purposes of the project if the Secretary has determined that the State is unable to acquire such lands with sufficient promptness, and that the State has agreed to pay an amount of ten per cent or more of the costs incurred by the Secretary in acquiring such lands. The Secretary is authorized and directed by a proper deed executed in the name of the United States to convey any such lands to the State Highway Department of the State (except, in certain cases, the outside five feet of any right-of-way) upon terms and conditions to be agreed upon. Section 110 requires that as soon as practicable after the approval of plans etc., the Secretary enter into a formal agreement with the State Highway Department concerning construction and maintenance of such project. Section 114 specifies that the construction of the highways shall be undertaken by the respective State Highway Departments or under their direct supervision; that same shall be done under the direct supervision of said highway department ‘and in accordance with the laws of that State and applicable Federal laws.’ (Emphasis added.) In so doing the State Highway Department does not act as agent of the Federal government. So held in Eden Memorial Park Assn. v. United States, infra, 9 Cir., 300 F.2d 432, 438.5 Section 116 makes it the duty of the State Highway Department to maintain or cause to be maintained any project constructed under the provisions of said Act or any prior Acts. The pertinent portions of these respective sections are quoted in the margin.6

On May 5, 1961, and before the order of the Federal court for possession was made in the condemnation proceeding, appellants herein filed in the superior court their original complaint in the instant action wherein they sought to enjoin defendants (respondents herein) from entering upon or taking possession of the cemetery land involved in the Federal condemnation proceeding or constructing thereon a public highway. They also sought to enjoin defendants from authorizing contractors to enter upon the land for construction purposes, from expending State funds for the purpose of acquiring the land or constructing a highway thereon, from entering into contracts purporting to obligate the State to expend State funds for such purposes, and from paying to the United States or any official thereof or any person State funds in connection with such purposes.

On May 19 the application for preliminary injunction was denied by the State court but ‘an injunction pending appeal was granted restraining the defendants * * * the California Highway Commission, and all persons acting as their agents, employees or otherwise from constructing any permanent structures, as defined by the Court, on the subject land.’ (Stipulation, Par. 19.) But the United States District Court on May 25 made an order enjoining the plaintiffs in the State court action (appellants herein) from seeking any injunctive relief herein and ordering plaintiffs to immediately and forthwith cause to be vacated the injunction theretofore issued by the said superior court on May 19th. The judge orally directed that the State restraining order be vacated by 5:00 p. m. of that day. Under the compulsion of that order (which later proved to be unwarranted) the plaintiffs applied to the superior court for vacation of its injunction and same was vacated on May 25. The district judge's oral order of that date was formalized into a written order of injunction which was signed and filed in the Federal court on May 31, 1961. From that order Eden forthwith appealed to the United States Court of Appeals, Ninth Circuit. On October 5, 1961, that court entered its order staying certain provisions of the District Court order ‘pending the disposition of this appeal, but for the limited purpose of enabling Eden Memorial Park Association to obtain in the state court proceeding, if this may be done, an order staying, restraining or enjoining further permanent construction work on the tract in question pending, among other things, the disposition of the instant appeal.’ (Quoted from footnote 6 on page 436 of 300 F.2d.) Plaintiffs then filed a supplement and amendment to complaint in the instant action changing the complaint to one for declaratory relief and again praying for a preliminary injunction, which was granted on November 1, 1961. ‘Said injunction again restrained the defendants named in paragraph 19 [of stipulation] and their officers, agents, employees and contractors from constructing any permanent structures, as defined by the Court, on the subject land.’ In its chronological summary of evidence respondents' brief says at page 4: ‘November 1, 1961—Preliminary injunction issued. (No permanent structures as defined by court—State's work proceeded.)’

United States Court of Appeals on February 15, 1962, decided the cause in an opinion reported as Eden Memorial Park Assn. v. United States, supra, 300 F.2d 432. It therein reversed the order of October 5 staying proceedings in the State court, and in so doing decided favorably to Eden most of the points involved in the appeal now before us. Pertinent passages are now quoted: ‘The land in question is part of a cemetery owned and operated by Eden.’ (300 F.2d P. 433.) Concerning the prohibition case in the District Court of Appeal: ‘The court held that sections 8560 and 8560.5 of the California Health and Safety Code prevented the state from condemning or establishing roads across cemetery property. [Emphasis added.] Eden Memorial Park Ass'n. v. Superior Court, 189 Cal.App.2d 421, 11 Cal.Rptr. 189. The California Supreme Court thereafter denied the Department's petition to review the decision of the District Court of Appeal.’ (P. 434.) State Highway Engineer Womack ‘thus sought to invoke a provision of the Federal-Aid Highways Act which authorizes the United States to acquire land by condemnation under certain circumstances, for the purpose of conveying it to a state which would construct and maintain a state highway thereon. See 23 U.S.C.A. § 107.’ (P. 434.) (Emphasis added.) ‘We now proceed to consider, on the merits, the appeal from the order concerning which we have granted a partial stay.’ (P.437.) Paragraph 29 of the stipulation of facts says: ‘Defendant Department of Public Works of the State of California, with the assistance and cooperation of the other defendants herein, intends with the permission of the Federal Bureau of Public Roads and the Federal Highway Administrator, and pending a final determination of and judgment in the federal condemnation action, to lay out and construct on the subject land a state highway, which has been designated as a part of the National System of Interstate and Defense highways; to authorize, direct and request contractors to do work on the subject land in connection with the construction of said highway; to accept title to the subject land from the Federal Highway Administrator or the Federal Bureau of Public Roads or the Secretary of Commerce of the United States for the purpose of utilizing said land for highway purposes and for the purpose of maintaining a highway thereon; and, to expend public funds of the State of California for the aforesaid purposes.’ (Emphasis added.)

On April 27, 1962, plaintiffs filed their second supplement and amendment to complaint in the State action, which, among other things, amends the prayer to ask for a determintion and declaration that defendant Womack's request for Federal condemnation was in violation of ‘the public policy and prohibitions of the Health and Safety Code of the State of California, and was made for the purpose of circumventing said public policy and doing indirectly that which the District Court of Appeal has adjudged cannot be done’; it also reiterates the prayer for an injunction. The cause having been submitted upon the stipulation of facts the trial judge held that the complaint was without merit and defendants were entitled to judgment; the preliminary injunction was dissolved and the court refused to keep it alive during an appeal from the judgment.

We think it clear from the decisions that the settled and declared public policy of the State of California precludes the use of cemetery land for highway purposes and that no condemnation of same for such purposes can be had under California law; that, though the United States may now have a defeasible title to the subject strip of cemetery property by virtue of its declaration of taking in the condemnation under Federal law,7 it has no intention to build or maintain a highway across the same; that its acquisition of title was for the sole purpose of conveying same to the State Highway Department so that the latter can build, maintain and use a highway thereover; that the State, after it has acquired title from the Federal government, cannot convert any part of the cemetery into a highway because it is forbidden by statute to use for such purposes any part of property dedicated to cemetery uses; that defendants unless enjoined will complete a freeway across plaintiffs' cemetery and put it into use; that monetary compensation for the taking would not remedy the wrong and that plaintiffs are entitled to an injunction to pervent the wrongful taking of their property.

One major point argued by respondents in opposition to these views is that Federal laws must prevail over State laws within an area where Federal action is authorized and hence the condemnation of cemetery land for highway purposes is valid under the Federal-Aid Highways Act. In disposing of this argument it is not necessary to deny the power of the United States to acquire by condemnation title to cemetery property or to question its right to transfer title to the State,8 or to question the proposition that interstate defense highways are a proper concern of Congress, for the principle which respondents invoke is applicable only where conflict arises between Federal and State laws operating within the same field of activity and this question of conflict raises one of statutory interpretation rather than one of Congressional power.

It is difficult to envision the Congress intentionally passing a law which sanctions concert of action between Federal and State officials in an effort to circumvent a declared public policy of a State.9 Certainly the history of the law under consideration suggests no such purpose. The reports of Congressional Committees (cited and quoted in appellants' opening brief and not challenged by respondents) stress the need of the statute for control of access in states whose laws are not adequate for that purpose.10 This thought is reflected in § 107, subdivisions (c) and (d) and § 111 of the Act.

Certainly there is no presumptive Congressional intent to override State laws merely because the United States has entered the same field. Penn Dairies v. Milk Control Com., 318 U.S. 261, 275, 63 S.Ct. 617, 623, 87 L.Ed. 748: ‘An unexpressed purpose of Congress to set aside statutes of the states regulating their internal affairs is not lightly to be inferred and ought not to be implied where the legislative command, read in the light of its history, remains ambiguous. Considerations which lead us not to favor repeal of statutes by implication [citations], should be at least as persuasive when the question is one of the nullification of state power by Congressional legislation. * * * Courts should guard against resolving these competing considerations of policy by imputing to Congress a decision which quite clearly it has not undertaken to make. Furthermore we should be slow to strike down legislation which the state concededly had power to enact, because of its asserted burden on the federal government. For the state is powerless to remove the ill effects of our decision, while the national government, which has the ultimate power, remains free to remove the burden.’

Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 815, 4 L.Ed.2d 852: ‘Evenhanded local regulation to effectuate a legitimate local public interest is valid unless pre-empted by federal action * * *.

‘In determining whether state regulation has been preempted by federal action, ‘the intent to supersede the exercise by the state of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress, fairly interpreted, is in actual conflict with the law of the State.’ [Citations.]'

California State Board of Equalization v. Goggin (9 C.A.), 191 F.2d 726, 27 A.L.R.2d 1211 (cert. denied, 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680): ‘It would be unwise to foster conflict where Congress has manifested a desire for harmony. Any such conflict would necessarily entail an application of the fundamental doctrine that laws enacted pursuant to power delegated to the United States under the Constitution are the supreme law of the land, and state laws inconsistent therewith are to that extent invalid. McCulloch v. Maryland, 1819, 4 Wheat 316, 17 U.S. 316, 4 L.Ed. 579. Our conclusion, however, adheres not only to our former view, State Board of Equalization v. Boteler, supra, but also to the doctrine that where problems in the sphere of dual sovereignty are involved, legislation should receive a construction which permits both to function with a minimum of interference each with the other.’ (191 F.2d P. 730.)

To the same effect see, Palmer v. Massachusetts, 308 U.S. 79, 84, 60 S.Ct. 34, 84 L.Ed. 93; United Auto Aircraft & Agr. Implement Workers v. Wisconsin Employment Relations Bd., 351 U.S. 266, 275, 76 S.Ct. 794, 100 L.Ed. 1162; Schwartz v. Texas, 344 U.S. 199, 202–203, 73 S.Ct. 232, 97 L.Ed. 231; California v. Zook, 336 U.S. 725, 733, 69 S.Ct. 841, 93 L.Ed. 1005; 49 Am.Jur. § 14, p. 236; 81 C.J.S. States § 7, pages 886–888 and 895.

The desire for harmony mentioned in the Goggin case, supra, is manifested in the statute under examination. Its application to a particular highway is dependent upon request from the State's highway department, the Federal government pays most of the costs, when acquired it conveys title of any necessary land to the State Highway Department, the State must agree to do and must do the construction work, and same ‘shall be performed * * * in accordance with the laws of that State and applicable Federal laws.’ (§ 114.) There appears to be no inconsistency between the applicable State and Federal statutes and inconsistency is the sole basis of the declaration in § 820, Streets and Highways Code, that State laws shall not apply to the work ‘to the extent of such inconsistency.’

It should be remembered that the initial enlistment of Federal aid in this instance occurred in June, 1955, and was directed toward highways ‘in the vicinity of the subject land,’ also that it nowhere affirmatively appears that the last quoted phrase was ever reduced to more precise terms prior to the time of the state's specific request for condemnation of the ‘subject land.’ It is but fair to assume that the energies directed to thwarting the State law since April, 1961, could doubtless have accomplished a rerouting of the highway in that same vicinity so as to avoid the cemetery, for Rule 1.6(b) of the Bureau of Public Works of the Department of Commerce, Part I, as adopted on May 11, 1960, and now found in Code of Federal Regulations, Title 23, Pocket Supplement, 1961, provides: ‘A State highway department may propose revisions, including additions, deletions or other changes, in the routes comprising the approved Federal-Aid highway systems. Any such revision shall become effective only upon approval thereof by the Administrator upon a determination that such revision is in the public interest and consistent with Federal laws. There is no predetermined time limit for the submission of the full selection of the systems.’

We conclude that there is no inconsistency in the contexts or purposes of the State and Federal statutes that gives to the latter superior authority over cemeteries or impliedly authorizes State officials to construct a highway over a cemetery in defiance of the declared public policy of the State.

Any reliance upon People ex rel. Department of Public Works v. Chevalier, 52 Cal.2d 299, 340 P.2d 598, would be misplaced in this case. The problem here presented did not exist in that proceeding. There was no subversion or attempt at subversion of declared public policy in Chevalier. The main question was whether the answer pleading bad faith, fraud and arbitrary action in determining the necessity of taking the particular parcels ‘presented a justiciable issue’ and the question was answered in the negative.

The argument of respondents that this highway is being built with the consent of ‘the person owning and controlling the cemetery’ (the language of Health and Safety Code § 8560.5), does not convince us. It ignores the language of § 8560—‘the consent of the cemetery authority owning and operating it, or of not less than two-thirds of the owners of interment plots.’ The United States, if conceded to be absolute rather than defeasible owner of the subject land, owns only a sixth of the whole burial ground, claims no more, and in no sense of the word does it control the cemetery or the greater portion of it.

The argument that this case does not involve any real public policy of the State is adequately answered by the opinion in Eden Memorial Park Assn. v. Superior Court, supra, 189 Cal.App.2d 421, at page 424, 11 Cal.Rptr. 189, at page 191, and by People ex rel. Keller v. La Vista Cemetery Assn., 175 Cal.App.2d 197, 201, 345 P.2d 590, 592 wherein it is said: ‘In our view, these enactments are mere detailed specifications of the general policy of the common law placing cemeteries in a special category, receiving particular protection from many of the rules applied to private individuals and preventing cemetery lands from being encroached upon except under those special circumstances which the sovereign general policy permitted as evidenced by legislative enactment or judicial pronouncement. This policy is also apparent in different ways in the decisions of other states. [Citations.]’ Also see § 8559, Health and Safety Code, which declares: ‘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.’ And § 8558: ‘After property is dedicated to cemetery purposes pursuant to this chapter, neither the dedication, nor the title of a plot owner, shall be affected by the dissolution of the cemetery authority, by nonuser on its part, by alienation of the property, by any incumbrances, by sale under execution, or otherwise except as provided in this chapter.’

Respondents argue that the subject land is no longer dedicated to cemetery purposes because title thereto has been acquired by the United States. Of course the assumption that absolute title now exists in the United States is erroneous, as above shown, and the further assertion that this opens the subject property to any use desired by the United States, especially one which violates the State's public policy, is equally erroneous. With respect to land which has been acquired by the Federal government by condemnation, it is said in 54 Am.Jur. § 80, page 593: ‘But where land is acquired by the exercise of this power, the United States becomes simply an ordinary proprietor, and the jurisdiction and authority of the state over the lands remain unchanged, except so far as their use for the purpose of executing the powers of the general government necessarily remove them from the domain of state authority.’

James v. Dravo Contracting Co., 302 U.S. 134, 141, 58 S.Ct. 208, 212, 82 L.Ed. 155: “Exclusive legislation' is consistent only with exclusive jurisdiction. Surplus Trading Company v. Cook, supra, 281 U.S. 647, at page 652, 50 S.Ct. 455, 456, 74 L.Ed. 1091 [1095]. As we said in that case, it is not unusual for the United States to own within a state lands which are set apart and used for public purposes. Such ownership and use without more do not withdraw the lands from the jurisdiction of the state. The lands ‘remain part of her territory and within the operation of her laws, save that the latter cannot affect the title of the United States or embarrass it in using the lands or interfere with its right of disposal.’ Id., at page 650.'

Silas Mason Co. v. Tax Comm. of Washington, 302 U.S. 186, 203, 58 S.Ct. 233, 242, 82 L.Ed. 187: ‘Appellants contend that exclusive jurisdiction as to these lands vested ipso facto in the Federal Government by the operation of Clause 17, section 8, article 1, of the Federal Constitution, which provides that the Congress shall have power ‘To exercise exclusive legislation’ over ‘all Places purchased by the consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-yards, and other needful Buildings.’' Referring to James v. Dravo Contracting Co., supra, the court continued: ‘We also concluded that Clause 17 should not be construed as implying a stipulation that the consent of the State to purchases must be without reservations. We were unable to reconcile such an implication with the freedom of the State and its admitted authority to refuse or qualify cessions of jurisdiction when purchases have been made without consent or property has been acquired by condemnation.’ (302 U.S. p. 203, 58 S.Ct. p. 242.)

Johnson v. Morrill, 20 Cal.2d 446, 456, 126 P.2d 873, 879: ‘Land acquired by the United States which is not subject to the exclusive legislative authority vested by the Constitution, remains subject to the jurisdiction of the state in matters not inconsistent with the free and effective use of the land for the purpose for which it was acquired. Further or exclusive authority may be ceded by the state on any terms acceptable to the United States.’

Section 126, Government Code, which ‘consents to the acquisition by the United States of land within this State upon and subject to each and all of the following express conditions and reservations,’ says in subdivision (f): ‘This consent continues only so long as the land continues to belong to the United States and is held by it in accordance and in compliance with each and all of the conditions and reservations in this section prescribed.’ In subdivision (g): ‘Acquisition as used in this section means: (1) lands acquired in fee by purchase or condemnation * * *.’ As the deeding of the land by the United States to the State Highway Department must occur before construction of the highway, it seems a bit farfetched to argue that the temporary ownership by the United States, which is not intended to extend to any user by it, can effect a removal of the land from the category of property exempt from any use other than that of a cemetery.

A second major point advanced by respondents is the claim that the United States is an indispensable party to this action and, as it cannot be brought in, the action must be dismissed. This question was decided by the United States Court of Appeals, which answered it in the negative and upon the basis that the rights or claims of the United States cannot be affected by the judgment herein. That court said, in part: ‘Two factors, the [district] court found, made it necessary to order Eden to obtain dissolution of the state court temporary restraining order and to enjoin further state injunction proceedings. The first of these was, in effect, that in the state action, Eden contests the ownership of the United States in the land despite the declaration of taking. The second was that, in the state action, Eden sought relief which would make ineffective the order of immediate possession, and which would interfere with the exercise of ownership of the United States in this land.

‘The district court found that in the state action Eden asserted continued ownership of the land despite the declaration of taking.

‘Neither the United States nor any of its agencies or officials were made parties to the state action, nor was the land in question brought before the state court in anything approaching an in rem proceeding. Under these circumstances we do not perceive how any claim to ownership made by Eden in that state action could possibly affect the title acquired by the United States by its declaration of taking. Assuming that the outcome of that in personam state action to which the United States is not a party would be an adjudication that Eden continued to own the land, such a judgment would neither operate to divest the United States of its title nor have any effect by way of res judicata to impair such title.

In any event we do not agree with the district court's view that, in the state action, Eden contests the ownership of the United States. * * * The relief prayed for was directed solely against state agencies and officials who were not alleged to then have any control over the title to the land. No request was made for adjudication of title or to divest or in any manner adversely affect the title then resting in the United States. Moreover, the complaint contains other allegations expressly recognizing that title to the land had passed to the United States. In the argument before the district court, counsel for Eden assured the court that they recognized that title was in the United States subject to possible defeasance as a result of further federal court proceedings, and that no issue concerning title was being raised in the state court.

‘We conclude that the order staying proceedings to obtain a state court temporary restraining order or permanent injunction is not warranted on the ground that, in the state action, Eden contests the ownership of the United States in the land despite the declaration of taking.

‘The district court also held, in support of its stay order, that in the state action Eden sought relief which would make ineffective the order of immediate possession, and which would interfere with the exercise of ownership of the United States in this land.

‘The relief sought in the state court, to which reference is here made, is the enjoining of state officials from taking possession of the land in question, entering into contracts with road builders to construct highway facilities, and expending state money on the project.

‘In our view, none of this relief, if granted in the state action, interferes with any right to possess and use the land which the United States has gained or expects to gain as a result of the condemnation proceedings. If the United States has gained the right to have the state accept this property and construct and operate a highway thereon, it is not because of any rights acquired by the United States in these condemnation proceedings; rather, it is by virtue of the section 107(a)(2) agreement and possibly other agreements which the state has entered into with the United States. * * *

‘If, by reason of any judgment entered in the state action, the state is unable to fulfill its obligations under such contract or contracts, the United States, which is not a party to, and not bound by, the state adjudication, has its remedy in a separate court proceeding. But this condemnation proceeding, in which the state is not even a party, is not the place to litigate any such contractual rights.

‘We therefore conclude that the order staying state court proceedings with respect to a temporary restraining order or permanent injunction is no more warranted by the second factor relied upon by the court than by the first factor discussed above.’ (300 F.2d pp. 437–439.)

Of course, the doctrine of res judicata applies to questions of law as well as those of fact (29 Cal.Jur.2d § 243, p. 205), and the United States and Eden are both bound by that holding that the United States is not an indispensable party here, for no certiorari has been sought and that judgment is final. How then do respondents have any standing to assert the affirmative? If the United States cannot be prejudiced by nonjoinder, certainly no prejudice can be suffered by respondents through the absence of the sovereign. No equitable principle could be served by sustaining the plea of indispensability, for that would mean that appellants could not litigate their real controversy in State or Federal court, would mean that this wrong which they assert is without any remedy.

Concerning a request of counsel for both sides that the Court of Appeals ‘decide the underlying question as to the validity of the condemnation proceeding’ the opinion says: ‘Under the Federal-Aid Highways Act, which provides the statutory authority for this taking, the only purpose for which the land may be acquired is to transfer it to the state so that the state can construct and maintain a highway thereon. If, by reason of the decision in the pending state case a cloud is thrown over the authority and obligation of the state to accept such a transfer and so utilize the land, the United States may desire to know it before the taking becomes irrevocable, assuming that it has not already become so.11

‘Apart from the possible desire of the United States in this regard, the district court might itself desire to re-examine its determination as to validity in the light of any such state adjudication. If, for its own purposes, or to accommodate the United States, the district court should determine to postpone the entry of a final decree in the condemnation proceeding pending such state adjudication this would be an altogether proper exercise of judicial discretion.12

‘We cannot perceive how anything will be gained by perfecting title in the United States unless and until California's ability and obligation to accept a transfer of the land and utilize it for the intended purposes, has been authoritatively determined. It need only be added that it is the pendency of the state action, and not this condemnation proceeding, which has occasioned any delay so far experienced, or which will be the cause of any further delay in completing this highway project.

‘The order under review is reversed and the cause is remanded with directions to vacate such order.’ (Emphasis added.) (300 F.2d pp. 439–440.)

This reasoning is in harmony with that of the California cases dealing with the subject. Bowles v. Superior Court, 44 Cal.2d 574, 583, 283 P.2d 704, 710: ‘Where persons are so interested in the controversy that they should normally be made parties in order to enable the court to do complete justice, but their interests are separable from the rest, they are necessary but not indispensable parties. On the other hand, one may be an indispensable party if his interest in the subject matter of the controversy is of such a nature that a final decree cannot be rendered between the other parties to the suit without inevitably affecting that interest.’

Bank of California v. Superior Court, 16 Cal.2d 516, 523, 106 P.2d 879, 884: ‘The other classification includes persons who are interested in the sense that they might possibly be affected by the decision, or whose interests in the subject matter or transaction are such that it cannot be finally and completely settled without them; but nevertheless their interests are so separable that a decree may be rendered between the parties before the court without affecting those others. These latter may perhaps be ‘necessary’ parties to a complete settlement of the entire controversy or transaction, but are not ‘indispensable’ to any valid judgment in the particular case. They should normally be joined, and the court, following the equity rule, will usually require them to be joined, in order to carry out the policy of complete determination and avoidance of multiplicity of suits. But, since the rule itself is one of equity, it is limited and qualified by considerations of fairness, convenience, and practicability. Where, for example, it is impossible to find these other persons or impracticable to bring them in, the action may proceed as to those parties who are present.' (Emphasis added.)

The last quoted language seems applicable here. The United States owns only the title to the land, no right to use it for it must immediately convey the same to the State Highway Department; its title is not challenged by plaintiff-appellants; its ownership cannot be affected by an injunction against State officers using the specific part of the cemetery for highway purposes; any effect which a judgment favorable to plaintiffs in the state court may have upon the United States is indirect and remote. It cannot be brought into this action. Although it has a right to intervene (County of San Bernardino v. Harsh California Corp., 52 Cal.2d 341, 344–346, 340 P.2d 617), it has not done so. It has started another suit in its own court which will result in its acquiring title without the necessity of litigating with these plaintiffs the question posed by their State court equity action. When the condemnation action is completed and full title vested in the United States, there will remain the necessity of determining whether its grantee can use the condemned portion of a cemetery for highway purposes. The rule of indispensable parties is ‘one of equity * * * limited and qualified by considerations of fairness, convenience, and practicability,’ says the Bank of California case, supra. There would be no equity in permitting the sovereign as actor to frame the issues to suit itself and thus to preclude the opposing party from having a trial of the real dispute which gave rise to the litigation.

The United States is not an indispensable party to this action and it is highly appropriate, as held by the Court of Appeals, that its condemnation be postponed until the major question in this case has been settled. Such a procedure was sanctioned by the Supreme Court in Leiter Minerals, Inc. v. United States, 352 U.S. 220, 229, 77 S.Ct. 287, 1 L.Ed.2d 267.

In view of the conclusions just stated we find it unnecessary to discuss other points raised by respective counsel.

Only questions of law are presented by the instant appeal for the findings and judgment are based upon agreed facts. An injunction is the proper, and in this case the only effective remedy for threatened taking of plaintiffs' land for an unauthorized use (see, 30 C.J.S. Eminent Domain § 407, p. 128).

The rule of balancing conveniences does not apply to the granting of a permanent injunction where plaintiff has established a clear legal right thereto after a trial upon the merits. Richards v. Dower, 64 Cal. 62, 64, 28 P. 113, 114: ‘The findings leave no room for doubt as to the plaintiff's title to the premises, and that, coupled with the fact that the threatened injury is per se irreparable, entitles the plaintiff to the relief demanded in his complaint; and we think the error committed by the court in dissolving the injunction should be corrected.

‘Cases of palpable error or abuse of discretion are excepted from the rule under which this court declines to interfere with the granting, refusing, continuing, or dissolving of injunctions; and that rule applies more especially, if not exclusively, to preliminary injunctions. We do not think that it applies to a case in which an injunction is continued or dissolved after trial and findings upon all the material issues.’

In Eastern Columbia, Inc. v. Waldman, 30 Cal.2d 268, 273, 181 P.2d 865, 868, the court said: ‘Whether a permanent injunction should issue becomes a question of law where the ultimate facts are undisputed and in such a case the appellate court may determine the issue without regard to the conclusion of the trial court. (Thompson v. Moore Drydock Co., 27 Cal.2d 595, 165 P.2d 901; Richards v. Dower, 64 Cal. 62, 28 P. 113; Isert v. Riecks, 195 Cal. 569, 234 P. 371; Carolina Pines, Inc. v. Catalina Pines, 128 Cal.App. 84, 16 P.2d 781.)’ See also, Morgan v. Veach, 59 Cal.App.2d 682, 689–690, 139 P.2d 976.

As appears from the above discussion, appellants herein were entitled to an injunction. The findings are based upon a complete stipulation of facts, which renders them surplusage (2 Witkin, California Procedure, § 104, p. 1835), and they consist principally of conclusions of law which are erroneous; said findings are stricken and the judgment is reversed with instructions to the lower court to enter in favor of plaintiffs a permanent injunction as prayed in paragraph 2, subdivisions a, b, c, d and e of the second supplement and amendment to their complaint herein.

I dissent. As I view the record in this case, there is no basis for the statements in the majority opinion to the effect that the responsible public officials of this State who are named as defendants and respondents herein, have acted improperly, contrary to law and ‘to the subversion of the plainly declared public policy of this state.’

On the contrary, it is my considered conclusion that the judgment of the trial court is entirely correct and that all of the criticized actions of respondents have been entirely lawful and proper, and consistent with public policy, both state and federal. Indeed, it seems clear to me that the actions of these public officials have been well designed to protect the general welfare and to promote important public interests in the vital areas of transportation and national defense.

On the other hand, the demands which appellants have made strike me as being so clearly excessive, so unreasonable and so obviously designed to capitalize unfairly upon the necessities of the public interest which faced respondents that appellants are in a very poor position to seek the aid of a court of equity.

As I see it, the single narrow question here presented for the determination of this court is simply this: does the record support the trial court's conclusion that appellants were not entitled, either legally or equitably, to an injunction which would operate to prohibit public officials of the State of California from performing their contractual obligations to the federal government in connection with a public highway found necessary to meet the needs of local and interstate commerce and to provide for the national and civil defense? I would answer this determinative question in the affirmative.

Subsection 101(b) of 23 U.S.C.A. provides: ‘It is hereby declared to be in the national interest to accelerate the construction of the Federal-aid highway systems, including the National System of Interstate and Defense Highways, since many of such highways, or portions thereof are in fact inadequate to meet the needs of local and interstate commerce, for the national and civil defense.

‘It is hereby declared that the prompt any early completion of the National System of Interstate and Defense Highways, so named because of its primary importance to the national defense and hereafter referred to as the ‘Interstate System’, is essential to the national interest and is one of the most important objectives of this Act. It is the intent of Congress that the Interstate System be completed as nearly as practicable over the period of availability of the thirteen years' appropriations authorized for the purpose of expediting its construction, reconstruction, or improvement, inclusive of necessary tunnels and bridges, through the fiscal year ending June 30, 1969, under section 108(b) of the Federal-Aid Highway Act of 1956 (70 Stat. 374), and that the entire System in all States be brought to simultaneous completion. Insofar as possible in consonance with this objective, existing highways located on an interstate route shall be used to the extent that such use is practicable, suitable, and feasible, it being the intent that local needs, to the extent practicable, suitable, and feasible, shall be given equal consideration with the needs of interstate commerce.' (Emphasis added.)

In 1935, the Legislature adopted section 820 of the Streets and Highways Code which provided: ‘The State of California assents to the provisions of the Federal Highway Act, as amended and supplemented. All work done under the provisions of said act or other acts of Congress relative to federal aid, or other cooperative highway work, or to emergency construction of public highways with funds apportioned by the Government of the United States, shall be performed as required under acts of Congress and the rules and regulations promulgated thereunder. Laws of this State inconsistent with such laws, or rules and regulations of the United States, shall not apply to such work, to the extent of such inconsistency.’ (Emphasis added.)

In 1941 said section was amended by adding the concluding sentence: ‘The reenactment of this section is for the purpose of bringing the assent of the State of California to the provisions of the applicable Federal statutes up to the effective date of this amendment.’ It was again amended in 1945 by substituting the words ‘This further’ for the word ‘The’ at the beginning of this concluding sentence. It was again reenacted in 1955. Finally, it was amended in 1959; the final sentence relating to the obvious effect of reenactment was omitted. With reference to the effect of this section, see County of Marin v. Superior Court, 53 Cal.2d 633, 640–643, 2 Cal.Rptr. 758, 349 P.2d 526, and Logan v. Matthews, 330 Mo. 1213, 52 S.W.2d 989, cited therein.

To my mind it is difficult to see how such a clear and repeated legislative announcement of public policy can be held ineffectual to achieve the purpose set forth in its language; namely, that in order to gain the benefits of a federal act, work to be performed under the rules and regulations promulgated by the federal government shall not be restricted by inconsistent state laws.

The agreed facts upon which this matter was submitted indicate that in 1955, less than one year after the property here involved had been dedicated to cemetery purposes, the federal agencies had approved the plans for this portion of the national system of interstate and defense highways, which plans necessarily had been adopted by the state authorities prior to appellants' purported dedication. The federal government, which contributes ninety per cent of the cost of the construction here in issue, has exercised, and unquestionably has the right to exercise, the final word in such determinations. (Streets and Highways Code, Section 820; 23 U.S.C.A. §§ 105 and 109.) Once determined, these plans may not be changed without approval of the Secretary of Commerce.

The majority opinion states: ‘It is but fair to assume that the energies directed to thwarting the State law since April, 1961, could doubtless have accomplished a re-routing of the highway in that same vicinity so as to avoid the cemetery * * *.’ I find no evidence in the record upon which to base such an assumption. On the contrary, the admitted facts indicate that when the Secretary of Commerce had determined ‘either that the State [was] unable to acquire necessary lands or interests in lands, or [was] unable to acquire such lands or interests in lands with sufficient promptness', he exercised his right to take possession thereof as authorized by section 107 of 23 U.S.C.A. Thus, it very clearly appears that the federal government considers the present route to be the most ‘practicable, suitable, and feasible.’

The majority opinion appears to me to infer that the public officials of California, in a devious and underhanded fashion, improperly have used the federal government as a tool to accomplish its desired objective. Certainly there has been nothing of subterfuge involved in any of these proceedings. They have been entirely public and in strict conformity with both state and federal laws. I find it difficult to believe that any state could successfully use our federal government as its puppet to accomplish an unlawful objective contrary to the public interest.

Necessarily it is conceded that the United States has the power to acquire the land in question and to use it as it deems fit, and this would be so even in the absence of California's legislative subordination of its laws. The decision in Eden Memorial Park Assn. v. Superior Court, 189 Cal.App.2d 421, 11 Cal.Rptr. 189, merely declared the lack of power in the Department of Highways to take the cemetery land by condemnation. The court there was not called upon to decide whether or not the state could continue to meet its contractual obligations after the federal government had determined to acquire such land directly.

The majority opinion indicates that: ‘The United States owns only the title to the land, no right to use it for it must immediately convey the same to the State Highway Department * * *.’ The very right to convey it to the state, the party obligated to build and maintain the desired defense highway thereon, not only is a ‘use’ thereof, but the very use contemplated by the Federal Highways Act. If, as a result of our decision, the federal government is forced either (1) to pay an exorbitant price to appellants ($144,000.00 already has been deposited in Federal Court for their benefit and to compensate them for their loss), or (2) to re-route, if physically possible, so substantial a structure as a modern freeway in order to avoid appellants' property, it will produce an effect upon the United States that is neither ‘indirect nor remote’ in any practical sense of those terms.

It should be emphasized that it was not the state officials now sought to be enjoined who determined that section 8560 of the Health and Safety Code should not stand in the path of a defense highway desired by the federal government. The California Legislature adopted section 8560 of the Health and Safety Code and then later adopted section 820 of the Streets and Highways Code providing that all other laws ‘shall not apply to such work, to the extent of such inconsistency.’ To say that section 8560 is not ‘inconsistent’ with rules and regulations promulgated by an authorized agency of the federal government under whose direct control this work is to be performed, appears to fly in the face of the plain fact that this federal agency has filed a complaint in the federal court alleging that such cemetery land ‘is necessary to provide adequately for the construction, reconstruction, and improvement of California Projects * * *, a portion of the National System of Interstate and Defense Highways, being constructed in accordance with the standards, including control of access, adopted by the Secretary of Commerce in cooperation with the State highway departments.’

The unquestionable propriety of the taking here involved appears to me to follow from the determination of the federal agency which holds the final power of decision under both state and federal law. Nothing has been presented to this court which would enable us to determine whether or not a different route is physically practicable or available at less than a prohibitive cost. As a matter of fact, the exhibits introduced in the condemnation action filed by the state show that the proposed freeway at this point traverses a pass between two hills and is bounded on the west by a large reservoir and on the east by appellants' land. It may well be that the federal government, which is expending ninety percent of the funds, has determined that it would be wholly impracticable from an engineering standpoint to locate this defense highway along any different route.

A somewhat analogous issue involving other governmental agencies was presented to our Supreme Court in People ex rel. Department of Public Works v. Chevalier, 52 Cal.2d 299, 340 P.2d 598. There the State Highway Commission, being unable legally to condemn certain land in connection with a freeway, entered into an agreement with the City of Los Angeles whereby the latter would condemn the land at the state's expense. This action by the city was upheld against substantially the same arguments as those presented by appellants here. In that instance, the city might, with some merit, have been termed ‘an instrumentality’ used by the state to achieve something which the state could not accomplish itself, and in which the city had no direct interest. In the instant case, however, the federal agency is doing exactly what the Congress has directed it to do, and it is only because the state was unable to accomplish the desired result that the federal agency has determined to achieve it directly.

Section 526 of the Code of Civil Procedure provides in part: ‘An injunction can not be granted * * * (6) To prevent the exercise of a public or private office, in a lawful manner, by the person in possession.’ I cannot escape the conclusion that the action of the officials here sought to be enjoined are actions which they are expressly authorized to take under the provisions of section 820 of the Streets and Highways Code.

In addition to the foregoing considerations, which I regard as controlling, I feel compelled to refuse to bring the powers of equity to the aid of the appellants in this action, and I am unable to join in a holding which suggests that responsible officers of our state and federal governments intentionally have planned and schemed to build this freeway through a cemetery in total disregard of our established public policy requiring respect for the dead. The exact opposite appears to be the case.

It is universally known that the construction of a modern freeway is an enormous undertaking and that most of the surveying and engineering work is commenced many years before even tentative plans therefor are developed. Once a proposed highway has been laid out and surveyed, then maps thereof are prepared and the beds of such mapped highways are to some degree protected by the provisions of sections 740 to 742 of the Streets and Highways Code. The public is well aware of the routes of such highways long before they are officially adopted. The secondary question presented on this appeal, therefore, is whether or not the development of such a project can be totally halted or be subjected to practically unlimited financial demands of private parties who elect to make a unilateral determination to dedicate to cemetery purposes property lying in the path of the planned project. Since the creation of private cemetery corporations and the dedication of land to cemetery use are purely ex parte proceedings over which no public body has any effective degree of control, it would be most unfortunate if the parties taking such actions could automatically thwart the development of an eight-lane defense highway pending payment of any demanded tribute.

The record in the instant case is clear that the State had adopted a route for the freeway here involved prior to the time when the appellant corporation was formed and before the land involved had been acquired by the organizers of the corporation for purposes of transfer to it and subsequent dedication. Rather than the respondents seeking to deprive ‘those who are about to die of their birthright’ it is apparent that appellants, in violation of the very conditions under which they were allowed to operate in the city of Los Angeles, are seeking to use the ‘respect for the dead’ held by all men of good faith to justify their financial demands upon the people of this State and of the United States.

In passing, it might be noted that it is doubtful that appellants' dedication of the subject property met the rule requiring that ‘He who would assert that a dedication has been made must show that all of the calls of the statute have been followed because such provisions have been held to be of the substance of the creation of a dedication.’ (Application of Laurel Hill Cemetery Ass'n., 73 Cal.App. 193, 196, 238 P. 732, 733; Christian Service Soc. v. County of Butte, 161 Cal.App.2d 280, 283, 326 P.2d 532.)

By taking judicial notice of the files of this court in the related proceedings referred to in the stipulation, we observe that the recorded ‘dedication map’ fails to show any ‘sections, plots, avenues, walks or other subdivisions, which descriptive names or numbers' as required by sections 8550–8553 of the Health and Safety Code, but is merely a bare outline of the entire parcel. Further, following the language of dedication used by appellant corporation, there appear the words, ‘reserving, however, unto itself, its successors or assigns, the right and privilege at any time and from time to time to resurvey, enlarge, diminish, replat, alter in shape or size, and/or otherwise to change all or any part, portion or subdivision of the property hereby mapped and platted * * *.’ (Emphasis added.) Of course, the internal parts or subdivisions of dedicated land may be altered in shape or size, (section 8554, Health and Safety Code) but a dedication which purports to reserve to the dedicator the right ‘at any time * * * to diminish * * * in shape or size * * * all * * *’ of the dedicated property without compliance with sections 8580–8581 of the Health and Safety Code is of very doubtful validity.

More pertinent, however, to this action seeking extraordinary equitable relief is the fact that by the terms of the ‘Conditional Use Permit’ under which appellant corporation is operating, it was, and still is, prohibited from using for cemetery purposes that portion of the land which was known to be needed by the State for this highway project at the very time the permit was issued. Therefore, the ‘rights under dedication’ now asserted by appellant corporation to have resulted from its subsequent unilateral decision to include such lands within its dedication are in direct violation of the conditions imposed by the city of Los Angeles in the permit theretofore granted appellant.

The ‘Conditional Use Permit’ granted by the City Council on October 29, 1953, provided in condition number 2 thereof: ‘That a subdivision tract map covering the entire site shall be filed and recorded within 180 days from the effective date of this grant, said tract map to omit that portion of the westerly section of the property falling within the right of way for the proposed Sepulveda Parkway and the land needed for the parkway shall be sold to the State including the right of access thereto, at its value as acreage without claim for severance damage.’ (Emphasis added.) Whether or not the city of Los Angeles had the right to determine, even with the applicant's assent, that the subject land ‘shall be sold * * * at its value as acreage without claim for severance damage’ we need not now decide, but certainly appellant corporation should not now be heard to urge that it did not, prior to dedication, expressly consent to the construction of the highway upon that portion of the subject land excluded from its use as a cemetery.

The decision made by the federal authorities has been manifested by their actions and it appears entirely consonant with the declared intent of the Congress as expressed in section 101(b) of 23 U.S.C.A., quoted supra. (See also United States v. Certain Parcels of Land, etc., D.C., 175 F.Supp. 418, 423; see also United States v. Certain Parcels of Land, etc., D.C., 209 F.Supp. 483, filed October 15, 1962.)1 When negotiations for the purchase of this needed land failed, the State of California was obligated under both state and federal law, and by the contracts made thereunder, to attempt to acquire the land. As we have said, inability on the part of the state to acquire needed land is a condition precedent to federal condemnation action. By its answer in the state condemnation action, appellant corporation, notwithstanding its acceptance and operation under the condition imposed in its permit, prayed that if the condemnation action were successful, it be awarded $200,000 as severance damages and $1,800,000.00 as the reasonable value of these eleven unused and undeveloped acres!

When it was judicially determined that the State of California could not acquire the land, then under the express provisions of 23 U.S.C.A. § 107, the federal government proceeded to comply with the mandate which required it to fulfill the national needs, both economic and military, by acquiring the property directly. Appellants now seek the extraordinary relief provided by a court of equity to thwart the public interest which the federal government is attempting to serve by the prosecution of its condemnation action. Appellants seek to accomplish their purpose by enjoining California public officials from fulfilling their contractual obligations as authorized by section 820 of the Streets and Highways Code.

Under these circumstances, I feel that the discretion exercised by the trial court was abundantly warranted. I do not feel that the people of the United States should be forced either to abandon the standards deemed necessary for defense highways or be required to pay an unlimited amount of money as the alternatives to incurring the staggering costs of re-routing an eight-lane freeway during the course of construction.

I would affirm the judgment.


1.  Section 8560.5 reads: ‘No streets, alleys, or roads shall be opened or laid out within the boundary lines of any cemetery located in whole or in part within the lines of any city or city and county, where burials in the cemetery have been had within five years prior thereto, without the consent of the person owning and controlling the cemetery.’ Probably § 8560 governs here, for the Code Commissioners' Note to § 8560.5, says: ‘Does this section apply only to public cemeteries? Section 8560 of the Health and Safety Code is a similar provision but relates only to private cemeteries. The two sections differ in scope since this section relates to cemeteries located in whole or part within a city or city and county, and only to such cemeteries where burials have been had within five years prior to the laying out of the streets. Section 8560 relates to all private cemeteries and prohibits the laying out of any public thoroughfare or utility in such cemeteries.’

2.  This was before the enactment of the Federal-Aid Highway Act of 1956.

3.  ‘The voice is Jacob's voice, but the hands are the hands of Esau.’ Gen. 27:22.

4.  Paragraph 29 of the Stipulation of Facts says: ‘Defendant Department of Public Works of the State of California, with the assistance and cooperation of the other defendants herein, intends with the permission of the Federal Bureau of Public Roads and the Federal Highway Administrator, and pending a final determination of and judgment in the federal condemnation action, to lay out and construct on the subject land a state highway, which has been designated as a part of the National System of Interstate and Defense highways; to authorize, direct and request contractors to do work on the subject land in connection with the construction of said highway * * *.’ (Emphasis added.)

5.  ‘The Government's view, advanced in the district court, and accepted by that court, that in the performance of the acts and threatened acts, these state agencies and officials are agents of the United States, seems to us immaterial. Any agency relationship which may have come into existence is by virtue of section 107 agreements, and not because of any right acquired by the Government in the condemnation proceeding itself. ‘Moreover, analysis of the Federal-Aid Highways Act indicates that while close cooperation between the United States and the individual states was contemplated, the states or their agencies or officials were in no sense to become agents of the United States in projects authorized by that act. The whole tenor of the act is that the United States stands ready to assist the states when, under stated conditions, the states seek such assistance. Section 107 agreements are intended to confirm this arrangement, but not to create a principal and agent relationship in either direction.’ (300 F.2d Pp. 438–439.)

6.  All emphasis in the following quotations has been supplied. Sec. 107: ‘(a) In any case in which the Secretary is requested by a State to acquire lands or interests in lands (including within the term ‘interests in lands', the control of access thereto from adjoining lands) required by such State for right-of-way or other purposes in connection with the prosecution of any project for the construction, reconstruction, or improvement of any section of the Interstate System, the Secretary is authorized, in the name of the United States and prior to the approval of title by the Attorney General, to acquire, enter upon, and take possession of such lands or interests in lands by purchase, donation, condemnation, or otherwise in accordance with the laws of the United States (including the Act of February 26, 1931, 46 Stat. 1421), if—(1) the Secretary has determined either that the State is unable to acquire necessary lands or interests in lands, or is unable to acquire such lands or interests in lands with sufficient promptness; and (2) the State has agreed with the Secretary to pay, at such time as may be specified by the Secretary an amount equal to 10 per centum of the costs incurred by the Secretary, in acquiring such lands or interests in lands, or such lesser percentage which represents the State's pro rata share of project costs as determined in accordance with subsection (c) of section 120 of this title. ‘The authority granted by this section shall also apply to lands and interests in lands received as grants of land from the United States and owned or held by railroads or other corporations. ‘* * * (c) The Secretary is further authorized and directed by proper deed, executed in the name of the United States, to convey any such lands or interests in lands acquired in any State under the provisions of this section, except the outside five feet of any such right-of-way in any State which does not provide control of access, to the State highway department of such State or such political subdivision thereof as its laws may provide, upon such terms and conditions as to such lands or interests in lands as may be agreed upon by the Secretary and the State highway department or political subdivisions to which the conveyance is to be made. Whenever the State makes provision for control of access satisfactory to the Secretary, the outside five feet then shall be conveyed to the State by the Secretary, as herein provided. * * *’ Sec. 110: ‘(a) As soon as practicable after the plans, specifications, and estimates for a specific project have been approved, the Secretary shall enter into a formal project agreement with the State highway department concerning the construction and maintenance of such project. Such project agreement shall make provision for State funds required for the State's pro rata share of the cost of construction of such project and for the maintenance thereof after completion of construction. * * *’ Sec. 114: ‘(a) The construction of any highways or portions of highways located on a Federal-aid system shall be undertaken by the respective State highway departments or under their direct supervision. Except as provided in section 117 of this title, such construction shall be subject to the inspection and approval of the Secretary. The construction work and labor in each State shall be performed under the direct supervision of the State highway department and in accordance with the laws of that State and applicable Federal laws. * * *’ Sec. 116: ‘(a) It shall be the duty of the State highway department to maintain, or cause to be maintained, any project constructed under the provisions of this chapter or constructed under the provisions of prior Acts. The State's obligation to the United States to maintain any such project shall cease when it no longer constitutes a part of a Federal-aid system. * * *’

7.  See Catlin v. United States, 324 U.S. 229, 241, 65 S.Ct. 631, 89 L.Ed. 911; McKendry v. United States (9 C.A.), 219 F.2d 357, 358.

8.  The opinion of the district judge in United States v. Certain Parcels of Land, etc., D.C., 175 F.Supp. 418, goes no further.

9.  What has been done along this line in the field of racial integration, one charged with strong emotional and political compulsions, has been done by the courts, not the Congress.

10.  Before the Federal-Aid Highway Act of 1956 was passed, the report of the Senate Committee on Public Works (Senate Report No. 1965, found in U.S.Code Congressional and Administrative News, 84th Congress, Second Session, 1956, Volume 2, at page 2825) said: ‘The committee emphasizes that the program authorized herein is not one by which the Federal Government will construct highways, but a Federal-aid program within the framework of existing laws, rules, and procedures. Administration by the Bureau of Public Roads, in cooporation with the State highway departments, will permit maximum flexibility in meeting the needs of the States. It is the intention to ratain the basic structure of existing law without disturbing the present relationship between the Bureau of Public Roads and the States, nor the rights of the States in planning their programs and laying out the location of their highways.’ (Emphasis added.) The Committee on Public Works of the House of Representatives in its Report No. 2022 of April, 1956, said on page 11: ‘It is recognized that it takes time to acquire the necessary rights-of-way for a highway program of this magnitude. It is also recognized that in some States existing law does not permit the States to satisfactorily control access to its highways. The committee feels that prompt possession of the land and control of access thereto for the National System of Interstate and Defense Highways are essential. * * * [Emphasis added.] ‘Accordingly, a provision has been inserted authorizing the Secretary of Commerce to acquire any lands, including control of access from adjoining lands, required for construction purposes in connection with projects on the Interstate System when requested to do so by any State. Such lands would be acquired in the name of the United States by purchase, donation, condemnation, or otherwise upon request of the State * * *. ‘Such lands would be reconveyed to the State highway department of the State in which located by the Secretary except the outside 5 feet of such rights-of-way in States which do not provide control of access. When the State makes satisfactory provision for control of acess to the highway the Secretary will then convey to it the outside 5 feet.’

11.  That the United States would have a clear right to intervene in the State Court if its title were involved in the action is established by County of San Bernardino v. Harsh California Corp., 52 Cal.2d 341, 344–346, 340 P.2d 617.

12.  The Federal condemnation case is now set for trial in May, 1963.

1.  I find both the language and the logic of Chief Judge Mercer in this opinion, which deals with a very similar question presented in an Illinois condemnation proceeding, particularly apposite to our instant case. At 209 F.Supp. page 490 of said decision it is stated: ‘Was the federal power of eminent domain validly invoked in this instance? I hold that it was. ‘First, it is my opinion that the General Assembly has authorized the Department to make the request which led to this proceeding. It authorized and instructed the Department to enter into all agreements with the United States and to cooperate with the United States in the selection, construction and maintenance of federal aid highways ‘and to do all things necessary fully to carry out and make effective the cooperation contemplated and provided for by [the Federal Aid Highway Act]’. The quoted provision is sufficient authorization for the request made in this case. ‘Secondly, and, to me, that is the heart of the whole interstate program, the authority of the Department to make the request which invoked the federal power must be inherent in the Illinois statute. The interstate system is essentially a federal project. Had Illinois chosen to not participate in the project, the power of the United States to route FAI 74 over the proposed right-of-way through Illinois and over the land in suit can not be questioned. Illinois did choose to participate. Her General Assembly authorized the Department to implement the construction of highways within her borders as a part of that federal system. The doctrine of supremacy will not permit equivocal participation by a State, which would circumscribe the federal program by limitations imposed by local law. Illinois, having elected to participate in the interstate program, and having designated the Department as the agency authorized to act in her name, may not invoke the laws of the State to deny to her designated agent the authority to do every act necessary to the furtherance of the federal program. Even in the absence of any statutory provision touching the authority of the Department to request the Secretary to condemn the land in suit, such authority must be inferred from the adoption of the federal aid program by the Illinois General Assembly.’ (Emphasis added.)

ASHBURN, Justice.

FOX, P. J., concurs.