88 Pa. 42 | Pa. | 1879
Lead Opinion
delivered the opinion of the court, January 6th 1879.
It was provided by the first section of the Act of 18th of April 1877, Pamph. L. 54, “ That -when by the growth of cities and the opening of incorporated cemeteries in the vicinity thereof, or from other causes, any burial-ground belonging to or in charge of any religious society or church, directly or through trustees therefor, has ceased to be used for interments, the courts of Quarter Sessions of the several counties of this Commonwealth, upon petition of the managers, officers or trustees of such society or church, setting forth that the erection, extension or improvement of buildings for religious purposes of such society or church are hampered and interfered with, and the welfare of such religious society or church is injured to the detriment thereof and of the public good, and after four weeks’ advertisement of hearing in open court for the purpose, may, after a full hearing of the parties therein, proofs and allegations, authorize and direct the removal of the remains of the dead from so much of such burial-ground as may be needed for buildings for religious purposes only, by the managers, officers or trustees of such society or church; Provided, that no such application shall be made by the managers, officers or trustees of such society or church, except in pursuance of the wishes of a majority of the members of such society or church, expressed at a church election, held for that purpose after two weeks’ public notice.” Under this act, the trustees of the First Presbyterian Church of Pittsburgh, presented their petition to the Court of Quarter Sessions of Allegheny county, setting forth, inter alia, that the burial-grounds attached to and belonging to said church had ceased to be used for the interment of the dead; that a portion of said ground was needed for the erection of a new Sabbath school building and lecture-room; that such building was intended only for the religious purposes of said church, and that the same is interfered with, to the detriment of the said church and the public good; that in accordance with the terms of said Act of Assembly, at the request of the trustees of said church, public notice
All the presumptions are in favor of the constitutionality of an Act of Assembly. It comes to us with the seal of approval of two of the co-ordinate departments of the government. To doubt is to decide in favor of its constitutionality. It is only in a clear case that we are justified in declaring an act to be unconstitutional. We have no such clear case presented by this record. ' The Act of April 18th 1877, was a supplement to the Act of 13th May 1876, which was a supplement to the Act of 19th May 1874, and is germane to the subject of the original bill. This is all that is required : State Line and Juniata Railroad Company’s Appeal, 27 P. F. Smith 431. They all relate to cemeteries and the removal of the dead therefrom.
There are several objections to the regularity of the proceedings. The Act of Assembly does not specify how notice shall be given to the church meeting to be called for the purpose of voting on the question of the reproval of the remains of the dead from the burying-ground. It merely says such meeting shall be held after two weeks’ “ public notice.” The record shows that notice was given from the pulpit of the church for the three Sabbaths immediately preceding the meeting. This is the usual manner of giving notice to the mem
The objection that the case of the petitioners is not within the purview of the Act of Assembly, involves the further proposition, that the purposes to which the proposed new buildings are to be put are not the religious purposes contemplated by the act. If the petitioners are wrong as to the second proposition, the first necessarily falls with it. The petition alleges that the new building is to be applied only to the religious purposes of said church. There is nothing in the record that contradicts this assertion/ The Sunday school rooms and the lecture-room of a modern church, are as essentially used for religious purposes as the body of the church building itself. The Sabbath schools are an important auxiliary of every Christian church, and indispensable to its life and growth. That the services in such schools are, in the main, of a religious character, is too well known to be seriously disputed. So of the lecture-room. It is used for the mid-week evening lectures and other services, when the attendance is not large. The expense of lighting and heating the main church building is thus avoided. But the services upon such occasions are as truly religious in their character as the sermon upon the Sabbath. Gass’s Appeal, 28 P. F. Smith 46, has no application to the point in controversy. There, a German Reformed congregation and a Lutheran congregation built a church together, in which by their articles of association, “ Divine service” only was to be held; for many years, there were no meetings in it except for public worship. It was held, under the facts of that case, that “ Sabbath schools” were not included in the term, “Divine service,” and
The question whether there was any necessity for the proposed encroachment upon the graves of the dead, is not legitimately before us. It might or might not have been avoided by purchasing another lot for building purposes. The Act of Assembly refers this question to the congregation, and they have decided it adversely to the plaintiffs. We see nothing upon the record to justify us in revising their discretion.
The remaining question is one of power. The church having granted the privilege of interment in its grounds to certain persons, it is contended that as against the corporation such persons have a right to have the bodies remain undisturbed. In other words, that they had certain rights of property in said burial-ground which could not be taken away except for public purposes, and upon making compensation therefor; and that the said Act of April 18th 1877 was transgressive of art. 1, sect. 17, of the Constitution, which prohibits the legislature from passing any law impairing the obligation of a contract.
Neither of the plaintiffs has such a standing in court as entitles
We might well stop here. As, however, this point was argued on its merits, both below and in this court, we will consider it as if properly before us.
The ground in controversy was • a gift from the Penns. It was conveyed by John Penn and John Penn, Jr., to the trustees of the Presbyterian congregation of Pittsburgh, by deed, dated September 24th 1787. The church was incorporated five days thereafter, to wit, on the 29th of September 1787. The ground conveyed to the church by the Penns was originally the western half of an old public burying-ground, used as- a place of interment for a period of thirty-five years before the Penns conveyed it to the church. The French used the ground as a place of sepulture from 1753 to 1758, whilst they held Fort Duquesne. Here they buried Beaujeux, the commander of the French and Indians at Braddoek’s defeat, July 9th 1755. Afterwards, the ground was used for the same purpose by the British and Colonial troops, stationed at Fort Pitt, and subsequently by the American troops, during the Revolutionary war. It was also used by the inhabitants from the first sectlement of the country. (Vide testimony of Isaac Craig.) In the course of time the ground became so densely populated with dead bodies that it was scarcely possible to open a new grave without disturbing the remains of some one previously interred, and in 1848 or 1849 interments there ceased altogether, and its further use as a place of burial was abandoned. It was under such circumstances that the church petitioned the court for authority to remove the remains, under the Act of 18th April 1877.
We have no accurate information as to the precise nature of the relations between the church and those privileged to bury in its grounds. It does not appear that any one of them had any right to or title in the soil, nor any right of sepulture in any particular lot or place in the yard. We have nothing^in this entire record upon this subject except the statement of Robert Dalzell. He says in his cross-examination : “ My impression is that pew-owners were entitled to burial without paying anything for the ground. There was
The right of the legislature to authorize the removal of the remains
The graves of the dead may not be disturbed from mere wantonness. To do so is a misdemeanor and indictable both at common law and under the statute as an offence “highly indecent and contra bonos mores.” Conceding, however, the right of the legislature to authorize such removal by virtue of its police power, the exercise of such power is not to be interfered with or denied because accompanied with some incidental benefit to the society or church in whose interest such power is invoked. It was competent for the legislature to have passed an act merely authorizing the removal of the remains from this burial-ground. That the ground thus to be vacated is to be utilized by the church by the erection of a building for Sunday school purposes and a lecture-room, neither vitiates the act nor inflicts a wrong upon any human being, living or dead.
Speaking for myself I have no doubt of the power of the trustees, under the deed from the Penns, and the charter of the church, to remove the remains with the consent of the congregation. I regard the application to the court, under the Act of 1877, as wholly unnecessary. Be that as it may the power of the legislature to authorize such removal is beyond doubt.
I have considered the law of this case, not its sentiment. Mere sentiment, not based upon rights of persons or property, is not of value in a judicial proceeding.
We have been unable to find any serious error in this record. The proceedings therefore are affirmed.
Dissenting Opinion
filed the following dissenting opinion.
I cannot assent to the decision in this case. In my judgment, it offends against natural feeling and constitutional law. I grant the right of the state, in the exercise of her police power to regulate graveyards for the public good, and to remove decaying remains for the preservation of the health of the citizens. I grant her right of removal by way of eminent domain, when a great public interest requires it, but on compensation to those who have acquired a right of sepulture by contract. Yet even in this respect, the state has shown her sense of propriety and right in the General Railroad Law
Among all tribes and nations, savage and civilized, the resting places of the dead are regarded as sacred. There memory loves to linger and plant the choicest flowers ; there the sorrowing heart renews the past, rekindles into life the viewless forms of the dead, revives the scenes where once they moved, and recalls the happy hours of love and friendship. There parent and child, husband and wife, relatives and friends, with broken spirits and crushed hopes, revisit often the spot where they deposited their dead. Who does not feel the fountains of his heart broken up and the warm gushings of emotion, when standing over the green sod which covers the departed. Wherever the simple stone is placed, or the marble monument is roared, spontaneous thought inscribes upon it “ sacred to the memory.”
This sacredness is evidenced by one of the most touching incidents of Scripture. When Abraham standing by the dead body of Sarah, addressed the sons of Ileth, saying, “ I am a stranger and sojourner with you, give me a possession of a burying place with you, that I may bury my dead out of my sightThey offered him a choice of their sepulchres; but Abraham, intent upon a possession of his own, where the remains of her he had loved might repose in security, purchased the field of Macpelah of Ephron, the llittite, for four hundred shekels of silver. Even more touching is the reference to Jacob, who, dying in Egypt, surrounded by his children, “ charged them and said unto them ‘ I am to be gathered unto my people, bury me with my fathers in the cave that is in the field of Macpelah.’ There they buried Abraham and Sarah, his wife, there they buried Isaac and Rebecca, his wife, and there I buried Leah.” Tradition has preserved to this day, the identity of the cave and the tombs of those ancient worthies, undisturbed even by the Moslem, whose mosque covers and protects their resting places.
The man who violates the homes of the dead, who erases the tablets by which affection records their lowly dwelling, is lost to natural feeling and does an act which harrows the heart and excites mankind to rage. The law seizes hold of him for condign punishment: Act 31 March 1860, sect. 47. At common law it was a misdemeanor and indictable as an offence, “ highly indecent and contra bonos mores:” King v. Lynn, 2 Term R. 733; Commonwealth v. Cooley, 10 Pick. 37. The law enacts no new standard, but follows
In my judgment it is equally against the constitutional inviolability of contracts. Can a private association, corporate or unincorporate, sell a right of sepulture to-day, and to-morrow or next year retake the ground for a lecture or a school room ? It is immaterial whether a grant of sepulture confers an estate or a privilege ; it is a purchased right founded in contract, which no law can violate, except for a public necessity. They who advocate this violation of nature and of the sanctity of contracts, by calling it a mere privilege, assert its application to green graves as well as moss-covered tablets. This is the necessary and logical result of their argument, for power stops not even when the mourners are bending over the freshly-filled earth. The power to do it to-day, is the same power which must do it to-morrow or years hence. Let it be a privilege, and this is the entire scope of the argument founded on Kincaid’s Case, 16 P. F. Smith 412, yet it is a right also paid for by the legal representatives of the deceased. What law can take it away for a private purpose ?
It has no analogy to the privilege of a pew and cannot fall with the building. Its occupancy is permanent, not like that of a pew, periodical and temporary. If the building fall, is burned, destroyed or rebuilt, the pew right fails with it. But the purchased grave has no such necessary and intrinsic weakness of title. There the body is laid away, according to the rites of Christian burial, and in the acts of Christian faith, to await the resurrection morn, when its dust, reanimated by the Creator's call, shall rise to meet the Lord. Then why should a Christian congregation violate instinct and law, on the ground of privilege ? Poverty is the plea, but such a plea would better defend a larceny of bread to feed famished children. But can poverty sanctify this disturbance of the bones of the dead ? The principles stated in Kincaid’s Case go the length of my conclusions. The opinion there states that owing to its neglected condition, the graveyard was rapidly becoming a “nuisance” to the neighborhood. It is also admitted that if a congregation, from mere motives of convenience or ornament, resolve to pull down the old and erect a new church edifice, in such case the pew-holder is entitled to compensation. In Kincaid’s Case, the law provided that the proceeds of the sale should first pay the expenses of removal, including the cost of new lots, and in the second should compensate lot-holders before any division of the funds. In this case, there is no provision for compensation. It is said also in the opinion: “ But when it is an act of necessity required by the condition of the building or other imper
I would reverse this decree and dismiss the petition.