93 Ky. 385 | Ky. Ct. App. | 1892
delivered the opinion op the court.
The appellee is an incorporated cemetery company in the city of Louisville. As such company it has the right to sell lots to persons for the burial of their dead. Martin A. Dickens, father of the appellant, bought a lot in said cemetery for a family burial ground. At his death he devised in general terms, all his estate, real and personal, to the appellant, except one dollar in money, which he devised to his son. The appellant contends that she is,
The appellee’s thirteenth and sixteenth rules are as follows : “ Proprietors shall not allow interments to be made in their lots for a remuneration, nor shall any transfer nor any assignment of any lot, or. any interest therein, be valid without the written consent of the appellees first had and obtained.
“Nor, under any circumstances, shall any proprietor of a lot sell any part of his lot unless the part sold and the part retained shall each contain at least ninety feet square.”
The act of the Legislature of February 21st, 1884, amending the appellee’s charter, provides as follows: That the owners of lots shall not sell the privilege of burying in their lots without the previous written consent ■of the appellee. But they may by last will and testament, ■or by writing directed to the appellee, signed by such ■owners and attested by two witnesses, determine who shall ■control the right of burial in their lots after’their death, etc. That in case no such direction is made by last will or by writing, etc., “ the right of burial in any of the lots of the cemetery shall go and descend to the lineal descendants of the original owners thereof,’’etc.
The act sufra provides, first, that the owners of lots shall not sell the privilege of burying in their lots without the previous written consent of the appellee; second, that the owner may by last will, or by writing attested, say who shall control the right of burial in said lots; third, in the absence of such direction the right of burial in said lots shall descend to the lineal descendants of the owners. Neither the charter nor by-laws of the appellee gave the owners of lots the right to devise the same, but it gave them the right to transfer the same, with the written consent of the appellee, and if such written consent was not obtained the transfer was invalid. It seems that the appellee reserved the right, all the time, to determine what persons and families should be deemed worthy to have a burial place in the cemetery; and, in order to keep that matter under its control, it declared all transfers by the owners of lots invalid, unless it consented to the transfer by writing. Such being the object the seri
Now, the rules of the appellee as to the transfer of lots by the owners, subsequently enlarged and interpreted by the statute supra, are referred to for the purpose of showing the substantia], not merely formal, discretionary power of the appellee as to such transfers, and the invalidity of the same unless the appellee exercised its discretionary power in reference thereto by consenting, in writing,’ to the transfer. So the question, then, arises, is the writ of mandamus the proper remedy to procure that consent in case it is wrongfully withheld ?
Section 477, Civil Code, says that a writ of mandamus is an order by a court of competent jurisdiction commanding an executive or ministerial officer to do, or omit to do, an act, the. performance or omission of which is enjoined by law. It is well settled by this court (see Cassidy, Auditor’s Agent v. Young, &c., 92 Ky., 227) that to entitle a party to this writ the officer’s duty must
The judgment is affirmed.