124 Cal. 344 | Cal. | 1899
Injunction to restrain defendant from establishing a cemetery upon certain lands and interring 'human bodies therein. The complaint shows that the supervisors of Los Angeles county duly passed an ordinance,' the first section of which reads: “It shall be unlawful to locate or establish, extend or enlarge, any cemetery, graveyard, burying-ground or crematory within the limits of the county of Los Angeles without the permission of the board of supervisors first had and obtained.” The second section directs how to apply for such permission and what facts shall be set forth in the petition therefor, and that thirty days’ notice of the hearing of the petition shall be given by publication' in some newspaper published in the county. The third and last section provides .for publication of the ordinance. It is alleged that since said ordinance took effect defendant has located and is now locating and establishing a cemetery (upon certain lands described) situated in said county, “without the permission of the said board of supervisors first had and obtained, and contrary to and in violation of all the provisions of said ordinance”; the complaint then sets out certain acts now being done by defendant in furtherance of its said purpose, and that it “will continue in the work of locating and establishing such cemetery, in violation of said ordinance .... and greatly to the injury of the entire neighborhood of the said location, unless restrained,” et cetera.
Defendant answered the order to show cause by general demurrer to the complaint and by certain affidavits, which latter were controverted by counter-affidavits. The demurrer was overruled, and the court granted an injunction as prayed for directing defendant to refrain from proceeding further to establish said cemetery and from burying any human bodies in the land
The demurrer admits the allegations of the complaint and raises the questions discussed by counsel. The trial court disposed of the case on the demurrer and on the sufficiency of the complaint. We shall, therefore, take no notice of the affidavits.
The contention of defendant is that the ordinance is violative of the fourteenth amendment of the federal constitution and of section 11, article I, and section 11, article XI, of our state constitution; and is an unreasonable exercise of the power to regulate, and therefore invalid. The ordinance before us simply makes it unlawful to establish a cemetery without using it for the burial of the dead; and the complaint does not charge in terms that defendant has used its land or is about to use it for the burial of the dead. Counsel on both sides, however, and the court as well, treat the ordinance and the complaint as aimed not only at the dedication or establishment of the cemetery, but also at the burial of the dead therein. We shall, therefore, assume that the broader meaning of the word “cemetery” is intended in the ordinance and the complaint.
From the opinion of the learned judge who sat in the case (printed in the record) ft is manifest that he regarded the establishment of a cemetery for the interment of human bodies “as an avocation which may be well presumed to have an injurious tendency.” It is not so stated, but the opinion proceeds, I think, upon the assumption that a cemetery is a nuisance per se, or at least may be so regarded in measuring the extent of the police power to regulate it. We cannot concur in this view, nor can we concur in the position that the business of conducting a cemetery is an avocation presumably having an injurious tendency. We think, however, and in this we quite agree with the learned counsel for respondent, that there are many considerations, too obvious to require enumeration, which bring cemeteries withm the power of reasonable regulation by both city and county municipalities.
Before proceeding further, it may be well to observe that this power of regulation given by our constitution, to municipalities.
Article XI, section 11, of the constitution of this state, provides as follows: “Any county, city, town or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.” This section is re-enacted in the County Government Act, section 25, act of April 1, 1897 (Stats. 1897, p. 452). Of this provision it was said in Ex parte Sing Lee, 96 Cal. 354, as to cities and towns, that it is sufficiently broad and comprehensive to “sustain the enactment of any ordinance having a reasonable tendency to promote the health, comfort, safety, and welfare of all the inhabitants of the municipality, and which would not be in conflict with some general law.”
Is the ordinance before us a reasonable exercise of the power conferred by the constitution and the statute upon boards of supervisors, and as applicable to counties? It cannot be assumed that the supervisors in the present case legislated with a view to reach the defendant's enterprise especially, or that they knew it was in contemplation when the ordinance was enacted. On the contrary, it must be presumed that their purpose was to promote the welfare of the inhabitants. The validity of the ordinance must be determined from its face alone. The ordinance makes it unlawful to establish, extend, or enlarge any cemetery within the limits of the county without the permission of the supervisors. It does not attempt to deal with or prohibit private interments, nor with interments in cemeteries already established. It declares that in no part of Los Angeles county, however remote from any city or town, even though the location be suitable for the purpose and entirely satisfactory to the neighboring inhabitants, no cemetery shall be established except by permission of the supervisors first obtained. As the ordinance is silent as to interments in cemeteries already established, it nec
In Austin v. Murray, 16 Pick. 121, the ordinance prohibited any person from bringing into the town of Charleston any dead body, or cause the same to be conveyed through the streets, or to be buried on the premises of such person, without a permit from the selectmen of the town. The court said that if the bylaw had been limited to the populous part of town and had been made in good faith “for "the purpose of preserving the health of the inhabitants, which may be in some degree exposed to danger by the allowance of interment in the midst of dense population, it would have been a very reasonable regulation. But it cannot be pretended that this by-law was made for the preservation of the health of the inhabitants. Its restraints extend many miles into the country, to the utmost limits of the town. Such an unnecessary restraint upon the right of interring the dead we think essentially unreasonable.”
In State v. Mott, 61 Md. 297, 48 Am. Rep. 105, the city council of Baltimore was granted power to pass ordinances to preserve the health of the city, to prevent and remove nuisances, prevent the introduction of contagious diseases within the city, and .within three' miles thereof regulate the places for manufacturing soap and candles, the erection of slaughter-houses and distilleries, “and wherever every other offensive trade is carried on.” The city passed an ordinance making it unlawful for “any person .... to work, operate, or continue in use, for the purpose of burning oyster shells or limestone, any kiln situated or erected within the limits of the city of Baltimore.” The ordinance was held to be void because an absolute prohibition of a lawful occupation which might, on the remote outskirts of the city, be carried on without injury to anyone.
2. Aside from the objections just considered, the ordinance is unequal in its operation.
In Ex parte Bohen, 115 Cal. 372, an ordinance of the city and county of San Francisco made it unlawful for any person to purchase or sell any land within the county for the purpose of interring any human body therein, but permitted interments in plots or lots belonging to persons, associations, or corporations for their families or members. The ordinance was held to be
It is advised that the injunction be dissolved and the order overruling the demurrer be reversed, with directions to sustain the demurrer.
Gray, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the injunction is dissolved and the order overruling the demurrer is reversed, with directions to sustain the demurrer.
Garoutte, J., Harrison, J., Van Dyke, J.
Hearing in Bank denied.