CEMETERY BOARD OF THE STATE OF CALIFORNIA, Plaintiff and Appellant, v. TELOPHASE SOCIETY OF AMERICA et al., Defendants and Respondents, 87 Cal. App. 3d 847

Opinion KAUFMAN, Acting P. J. Defendant, Telophase Society of America (hereafter Telophase or defendant), is in the business of incinerating or cremating human remains. Plaintiff, Cemetery Board (hereafter Board or plaintiff), is a statewide administrative agency charged with administering and enforcing the Cemetery Act (Bus. & Prof. Code, § 9600 et seq.) and Parts 1, 3 and 5 of Division 8 of the Health and Safety Code (§ 8100 et seq.) relating to cemeteries.

Board instituted this action to enjoin Telophase from (1) “[m]aking any interments or performing any cremations''’ or (2) “[operating the cemetery known as Cremar Cemetery ... or cremating the bodies of deceased persons at said location without a valid, subsisting and unsuspended certificate of authority issued by” Board. (Emphasis added.) The trial court found that Telophase does not perform cremations as that term is statutorily defined, does not make interments as that term is statutorily defined, and is not operating a cemetery within the statutory

definitions of that term. It therefore concluded that Telophase was not unlawfully doing or threatening to do any of those things without a certificate of authority issued by Board, and denied issuance of the injunctions. Board appeals. A consideration of the pertinent statutory provisions, which are almost nonsensical in several important respects, demonstrates that the trial court’s conclusions were sound. Before turning to the statutory language, a brief statement of the pertinent facts is appropriate.

In 1974, defendant acquired Cremar Crematory by leasing the building and grounds and purchasing the retorts (furnaces) and contents of the building. The crematory is situated on land dedicated for cemetery purposes and had previously been operated in connection with an adjacent existing cemetery. Defendant is involved in providing what it calls “simple cremation services” as an alternative to the more costly services provided by the mortuary-funeral-cemetery system. Several different entities are involved in providing these services, which include several steps.

While the details have varied over time, the general process is as follows: Another entity, Telomega, Inc., pursuant to a contract with defendant, registers persons in advance for the service, picks up decedents at the place of death, transports the bodies to a- repository, and processes the necessary paperwork. Upon payment by the decedent’s survivors of an agreed fee ($250) if the fee has not been prepaid, Telomega transports the bodies, along with death certificates and disposal permits, to defendant’s crematory facility.

Telomega performs these precremation activities in San Diego and Orange Counties; in San Fernando Valley they are performed by Garrity Associates; and in Los Angeles County defendant performs them directly. The bodies are incinerated by defendant at the crematory, and the cremated remains are, in the vast majority of cases, transferred to the San Diego Ecumenical Conference, which scatters the ashes at sea. Under a mutual understanding, defendant donates $200 per month to the Conference.

In the remaining cases, the cremated remains generally are either picked up by the survivors or forwarded to a cemetery designated by the survivors for interment. In April 1974, because the Cemetery Board was asserting jurisdiction to require defendant to obtain a certificate of authority to operate its business, it filed an application for a certificate of authority. Following an administrative hearing, the Board denied defendant’s application. A principal reason given for the denial was that defendant’s facilities did not include a columbarium or burial park as assertedly required by Health and Safety Code

section 8340. Board relies primarily on Business and Professions Code

section 9768 which provides in relevant part: “It is a misdemeanor for any cemetery corporation to make any interments or perform any cremations without a valid, subsisting and unsuspended certificate of authority.” (Italics added.) The trial court concluded that under the statutory

definitions Telophase is not a cemetery corporation, does not make interments and does not perform cremations. We agree. Health and Safety Code

section 7009 defines interment as follows: “ ‘Interment’ means the disposition of human remains by inurnment, entombment, or burial in a cemetery or, in the case of cremated remains, by inurnment, entombment, burial or burial at sea as provided in

Section 7117.” “ ‘Inurnment’ means placing cremated remains in an urn and placing it in a niche.” (Health & Saf. Code, § 7011.) “ ‘Niche’ means a space in a columbarium used, or intended to be used, for inurnment of cremated human remains.” (Health & Saf. Code, § 7016.) The trial court found that defendant does not make interments, and that finding is supported by substantial evidence.

Defendant accepts remains for cremation only where arrangements have been made for disposition by other persons or entities elsewhere, primarily by burial at sea by the San Diego Ecumenical Conference. (See text accompanying fn. 2, ante.) Although concededly Telophase operates a crematory as defined in Health and Safety Code

section 7006, and incinerates human remains, it does not perform cremations within the statutory definition. Health and Safety Code

section 7010 reads: “ ‘Cremation’ means the reduction of the body of a deceased person to cremated remains in a crematory and the placement of the cremated remains in a grave, vault or niche or burial at sea as provided in

Section 1717 of this code.” (Italics added.) Since it neither makes interments nor performs cremations, Telophase is not in violation of Business and Professions Code

section 9768 whether it is a cemetery corporation or not. However, the trial court concluded it was not, and we agree. In its original articles of incorporation, the stated primary purpose of the corporation was “to conduct any one or more or all of the businesses of a cemetery.” But on February 10, 1976, the articles of incorporation were amended to delete the former primary purpose and to substitute therefor “to reduce dead human bodies directly to cremated remains.” Health and Safety Code

section 7019 defines “cemetery corporation” as meaning “any corporation now or hereafter organized which is or may be authorized by its articles to conduct any one or more or all of the business of a cemetery. . . .” Cremating human remains without interment is not within the definition of “cemetery business” as set forth in Health and Safety Code

section 7020. Thus, Telophase is not a cemetery corporation within the statutory definition of that term. There can be no question but that the court properly denied Board’s request to enjoin defendant from “making any interments” or “performing any cremations” without a certificate of authority. We turn then to the propriety of the court’s denial of Board’s request that defendant be enjoined from “operating the cemetery known as Cremar Cemetery. . . .” The starting point is Business and Professions Code

section 9715 which provides: “Application for a certificate of authority shall be made in writing on the form prescribed by the board and filed at the principal office of the board. Such application shall be accompanied by the fee provided for in this act and must show that the cemetery authority[] owns or is actively operating a cemetery in this State which is subject to the provisions of the Cemetery Act or that the applicant is in a position to commence operating a cemetery.” (Italics added.) The question is then simply whether Telophase owns or is actively operating a cemetery subject to the provisions of the Cemeteiy Act. Cemetery is defined at two places in the Health and Safety Code.

Section 8100 is obviously inapplicable. It reads: “Six or more human bodies being buried at one place constitute the place a cemetery.” Neither is the definition found in

section 7003, which provides: “ ‘Cemetery’ means any one, or a combination of more than one, of the following, in a place used, or intended to be used, and dedicated, for cemetery purposes'. [If] (

a) A burial park, for earth interments. [1] (

b) A mausoleum, for crypt or vault interments, [fj (

c) A crematory, or a crematory and columbarium, for cinerary interments.” (Italics added.) Whether or not a crematory can constitute “[a] crematory ... for cineraiy interments” when the operator of the crematory is making no interments need not be decided. Telophase’s crematoiy is not “in a place used, or intended to be used, and dedicated, for cemeteiy purposes.” “Cemetery purposes” is defined in Health and Safety Code

section 7020, set forth in full in footnote 6, ante. Its essential language is: “ ‘[CJemetery purposes . . . meanfs] any and all business and purposes requisite to ... or incident to, establishing, maintaining, operating, improving, or conducting a cemetery, interring human remains, and the care, preservation, and embellishment of cemetery property, including . . . any activity . . . designed for the benefit, . . . convenience, education, or spiritual uplift of property owners or persons visiting the cemetery.” (Italics added.) As is all too apparent, the statutory language is virtually nonsensical. The quéstion under Business and Professions Code

section 9715 is whether defendant is operating a cemetery. Health and Safety Code

section 7003 purports to define cemetery in terms of “a place used, or intended to be used ... for cemetery purposes.” But “cemetery purposes” is defined in Health and Safety Code

section 7020 by reference to “purposes . . . incident to . . . operating ... a cemetery,” and we are returned to the point of beginning. Nevertheless, no elaborate argument is required to demonstrate that Health and Safety Code

section 7020 contemplates a cemetery in the traditional sense. Whatever “incident to . . . interring human remains” might mean in isolation, the

section read in its entirety and taken in context with the numerous other statutory provisions having obvious reference to conventional cemeteries imparts an irresistible impression that

section 7020 contemplates a conventional cemetery. Perhaps the single most significant indication in the language of the

section itself is the use of the “and” after reference to “conducting a cemetery, interring human remains.” If “and” is given its usual meaning, “cemetery purposes” must relate at least in part to “the care, preservation, and embellishment of cemetery property.” This plus the reference to “property owners” and “visiting the cemetery” unmistakably indicate the

section does not include the incineration of dead bodies without more. It is suggested that notwithstanding that defendant performs no cremations within the statutory definition and makes no interments within the statutory definition and is not operating a cemetery within the statutory

definitions, issuance of an injunction was compelled by Health and Safety Code

section 8340 which prohibits operation of a crematory “unless there is in connection therewith in the same fireproof building or structure or in a separate fireproof building within the same cemetery, either: [If] [a] columbarium, a burial park or mausoleum amply equipped at all times for the interment of remains of bodies cremated at the crematory.” (Italics added.) (See fn, 4, ante.) The first and essential point to be observed is that this

section is completely unrelated to the relief sought by Board. In essence, Board sought to enjoin defendant from “making any interments or performing any cremations, without a. certificate of authority” and from “operating the cemetery known as Cremar Cemetery” without a certificate of authority. As previously explained, the trial court was correct in concluding that defendant does not perform cremations, make interments or operate a cemetery.

Section 8340 is entitled “Required facilities” and purports to require a crematory to have “within the same cemetery” a “columbarium, a burial park or mausoleum” “for the interment of remains . . . cremated at the crematory.” Even if it were assumed that

section 8340 is applicable to an operation such as that of Telophase and that Telophase is violating the

section because it has no columbarium, burial park or mausoleum, the injunction sought by plaintiff was not to restrain Telophase from operating its crematory until such time as it should have a columbarium, burial park or mausoleum but, rather, until it should obtain a certificate of authority from the Cemetery Board. Whether or not

section 8340 applies to Telophase’s operation is problematical. Its language “within the same cemetery” is again indicative that the Legislature had in mind the kind of cemetery where remains are interred. This is further indicated by the statutory

definitions of “columbarium,” “burial park” and “mausoleum” used in the section. “ ‘Burial park’ means a tract of land for the burial of human remains in the ground, used or intended to be used, and dedicated, for cemetery purposes.” (Health & Saf. Code, § 7004; italics added.) As used in

section 8340, “‘mausoleum’ means a structure or building for the entombment of human remains in crypts or vaults in a place used, or intended to be used, and dedicated, for cemetery purposes. ” (Health & Saf. Code, § 7005; italics added.) As used in

section 8340 “ ‘columbarium’ means a structure, room, or other space in a building or structure containing niches for inurnment of cremated human remains in a place used, or intended to be used, and dedicated, for cemetery purposes.” (Health & Saf. Code, § 7007; italics added.) Not only are we again brought face to face with the nondefinition of “cemetery purposes” in Health and Safety Code

section 7020 discussed previously, but we have already concluded that defendant’s crematory is not “in a place used, or intended to be used, and dedicated, for cemetery purposes.” Additionally, there is a significant probability that

section 8340 would be rendered unconstitutional as violative of due process if applied to Telophase’s operation. The requirement of a columbarium, burial park or mausoleum in connection with the crematory was originally enacted in 1939 (Stats. 1939, ch. 60, p. 701, § 8340) at a time when the disposition of cremated remains at sea was not authorized. Thus, there was a necessity that a crematory have an appropriate place for the disposition of cremated remains. (See 55 Ops.Cal.Atty.Gen. 402, 406.) That this was the impetus for the requirement in

section 8340 that a crematory also have a columbarium, burial park or mausoleum is made clear by

section 8341, the very next code

section and the only other code

section besides

section 8340 in

Article 5 of

Chapter 2 of the Health and Safety Code which is entitled “Operation Of Crematories.” Mor to its amendment in 1965,

section 8341 read; “All cremated remains not removed for interment elsewhere shall be interred in a plot within a reasonable time after cremation.” (Stats. 1939, ch. 60, p. 702, § 8341.) However, in 1965,

section 7117 was added to the Health and Safety Code authorizing burial of cremated remains at sea (Stats. 1965, ch. 1421, p. 3346, § 8) and in 1970 and 1973

section 7117 was amended to eliminate several restrictions on the manner in which such burial was required to be effected (Stats. 1970, ch. 707, p. 1335, § 1; Stats. 1973, ch. 339, p. 763, § 1). Since Telophase makes no interments and accepts bodies for cremation only where arrangement has been made for disposition elsewhere or for burial at sea, there is no longer any apparent rational basis for requiring a “columbarium, a burial park or a mausoleum amply equipped at all times for the interment of remains of bodies cremated” at its crematory.

This question has not been briefed or argued by the parties, and there is no necessity for deciding it in this case. However, it is a basic tenet of statutory construction that a court will not construe a statute in such a way as to make it vulnerable to constitutional attack. (People v. Amor, 12 Cal.3d 20, 30 [114 Cal.Rptr. 765, 523 P.2d 1173]; In re Kay, 1 Cal.3d 930, 942 [83 Cal.Rptr. 686, 464 P.2d 142]; City of Los Angeles v.

Belridge Oil Co., 48 Cal.2d 320, 324 [309 P.2d 417].)_ As the trial court correctly stated in its notice of intended decision, the statutory scheme simply did not envision an operation like Telophase’s and therefore made no provision for it. We are not entirely unsympathetic to the suggestion that the cremation of dead bodies should not go unregulated. But whether or not it should be regulated and if it should, the nature and extent of its regulation are matters to be determined by the Legislature.

It is well established that it is not the proper function of the courts to supply legislative omissions from a statute in an attempt to make it conform to a presumed intention of the Legislature not expressed in the statutory language. (Code Civ. Proc., § 1858; Moyer v. Workmen’s Comp. Appeals Bd., 10 Cal.3d 222, 236 [110 Cal.Rptr. 144, 514 P.2d 1224]; Kirkwood v. Bank of America, 43 Cal.2d 333, 341 [273 P.2d 532]; In re Miller, 31 Cal.2d 191, 199 [187 P.2d 722]; Seaboard Acceptance Corp. v. Shay, 214 Cal. 361, 367-369 [5 P.2d 882]; Wisdom v. Eagle Star Ins.

Co., 211 Cal.App.2d 602, 605 [27 Cal.Rptr. 599]; Richardson v. City of San Diego, 193 Cal.App.2d 648, 650 [14 Cal.Rptr. 494]; Rudley v. Tobias, 84 Cal.App.2d 454, 458 [190 P.2d 984].) In applying and explaining this principle, the court in Rudley v. Tobias, supra, said: “Relying on the so-called doctrine of judicial empiricism, the appellant insists that the appellate court should ‘fill in the gaps’ in the law, and, for reasons of public policy and in ‘the interest of society as a whole,’ sanction the action contended for. But judicial process is concerned with the

interpretation and application of legislative intent, not with usurpation of the lawmaking function.

The dangers of attempted interference by any one governmental division with matters committed to the jurisdiction of another division, whether executive, judicial, or legislative, are too obvious to require discussion.” (84 Cal.App.2d at p. 458.) Application of the rule of casus omissus is particularly appropriate in this case, for it obviates the necessity of embracing the absurdity that notwithstanding that defendant performs no cremations within the statutory definition and makes no interments within the statutory definition, and that its crematory is not a cemeteiy within either of the statutoiy

definitions, it nevertheless is operating a cemetery subject to the provisions of the Cemetery Act. It further virtually insures prompt legislative attention to the question whether an operation such as that of Telophase should be regulated and to the problems presented by the incoherent and almost meaningless

definitions contained in the statutes. Presumably, the Cemeteiy Board, to which the Legislature has entrusted the enforcement of the statutory provisions (see Bus. & Prof. Code, §§ 9631, 9657, 9658) will have the legislative ear. The judgment is affirmed. McDaniel, J., concurred. Several individuals were also named as defendants, but the trial court found that all acts of the individual defendants were performed as agents for Telophase, and no separate issue is presented as to these defendants. For the sake of simplicity, the designation defendant refers to defendant Telophase unless otherwise indicated.

Churches, religious corporations and religious societies or denominations are specifically excluded from coverage by the Cemetery Act. (Bus. & Prof. Code, § 9609.) In 1974, the Board consisted of six members, two of whom were public members not permitted to be involved in the industry and four were members of the funeral industry. (See Stats. 1971, ch. 716, p. 1428, §§ 159, 160.) In 1976, domination of the Board by representatives of the industry was eliminated by the Legislature when it amended Business and Professions Code

section 9625 to provide that four of the six members of the Board must be public members not involved in the industry. (Bus. & Prof. Code, § 9625 [Stats. 1976, ch. 1188, p. 5357, § 58]; Bus. & Prof. Code, § 9626.) Health and Safety Code

section 8340 reads: “No crematory shall conduct, or shall hereafter" be constructed, established, or authorized to conduct, any business unless there is in connection therewith in the same fireproof building or structure or in a separate fireproof building within the same cemetery, either: “A columbarium, a burial park or mausoleum amply equipped .at all times for the interment of remains of bodies cremated at the crematory.” (Italics added.) The purpose of this statutory provision and its relevance to this appeal are discussed infra. Health and Safety Code

section 7006 reads: “ ‘Crematory’ means a building or structure containing one or more furnaces for the reduction of bodies of deceased persons to cremated remains.”

Section 7020 reads: “ ‘Cemetery business,’ ‘cemetery busineses,’ and ‘cemetery purposes’ are used interchangeably and mean any and all business and purposes requisite to, necessary for, or incident to, establishing, maintaining, operating, improving, or conducting a cemetery, interring human remains, and the care, preservation, and embellishment of cemetery property, including, but not limited to, any activity or business designed for the benefit, service, convenience, education, or spiritual uplift of property owners or persons visiting the cemetery.” (Italics added.) The meaning and coverage of this

section is discussed at length, infra. Health and Safety Code

section 7018 reads: “ ‘Cemetery authority’ includes cemetery association, corporation sole, or other person owning or controlling cemetery lands or property.” For the reasons previously stated in our analysis as to whether defendant was operating a cemetery as “cemetery” is defined by Health and Safety Code

section 7003, we are unable to accept the unreasoned and unsupported opinion of the Attorney General that a crematory is a cemetery as there defined. (55 Ops.Cal.Atty.Gen. at p. 405.) The opinion neither considered nor discussed that only a crematory “for cinerary interments” can qualify as a cemetery under

section 7003 and then only if it is “in a place used, or intended to be used, and dedicated, for cemetery purposes.” Neither did it consider that “columbarium, or burial park or mausoleum” as used in

section 8340 are all also statutorily restricted to such facilities “in a place used, or intended to be used, and dedicated, for cemetery purposes.”