167 A. 237 | Pa. Super. Ct. | 1933
Argued April 26, 1933. Plaintiffs brought this bill in equity to enjoin the defendant, the Charles Evans Cemetery Company, a corporation not for profit, from enforcing a rule adopted January 12, 1931, which provided: "Resolved that every interment shall be made enclosed in an *500 outer wall of stone, brick or concrete, the actual installation of which shall be made by the employees of the cemetery at cost." Prior to the adoption of the rule there seemed to be no particular regulation as to the form of interment; it might be merely a plain pinewood box or some more modern form of sepulcher. In the special charter creating the cemetery company it is provided that thereafter all purchasers of lots of the said cemetery in company with the parties named in the original act shall be a corporate body, the land owned by the corporation being for "a burial cemetery," and that the majority of the trustees elected, under said charter, shall have the power to make such by-laws, rules and regulations as they may deem necessary or proper in relation to the same. In the deeds given to the respective lot owners, the right of sepulture is given subject to the by-laws and regulations existing or which may be hereafter enacted. In reading the above resolution it will be noticed that vaults are restricted to stone, brick or concrete. The burden of plaintiffs' complaint is that this rule excludes the use of steel vaults, or if such vaults are to be used that they must, in order to comply with the resolution, be enclosed by an additional wall of stone, brick or concrete and, therefore, the rule is unjust and discriminatory. The judge who sat as chancellor at first agreed with the plaintiffs' argument, but later sitting with the court en banc changed his views and with the concurrence of the other judges came to a contrary conclusion.
In the opinion, of the court en banc, written by the judge who sat as chancellor, it is stated: "The opinion of the chancellor [in his first opinion] was based chiefly on the conclusion that the prohibition of interment in a mere steel vault is a direct and substantial diminution of the granted right of sepulture. After careful consideration of the whole subject-matter, the court en banc have unanimously concluded that the *501
essential purpose in the institution of the cemetery and the subsequent conveyance to lot owners is to provide for the burial of the corpse, and that the form or material of the container is an incident thereof. Consequently, the limitation on steel vaults is not necessarily, or upon the record actually, a diminution or withdrawal of the right of sepulture." After a careful consideration of the matter the trustees concluded to adopt said rule in order to avoid the future sinking of graves and, as an incident thereto, the expense of making the ground level after its subsidence. They have the right to make by-laws. The appellants' argument has taken a wide range, but our only inquiry is whether the trustees exercised reason in making the by-law in question, or whether plaintiffs' contention is correct that the rule is arbitrary and unjust and unreasonable. Arbour v. Pittsburgh P.T. Assoc.
We must, of course, start out with the proposition that the people to decide this matter, in the first instance, are the trustees of the cemetery, for they are responsible for maintaining the trust and for keeping the cemetery in a proper condition and the exercise of these responsibilities must not be too minutely scrutinized. There are, no doubt, two sides to this question, and there is some plausibility in plaintiffs' argument, or the chancellor who heard the case would not, in the first instance, have decided in their favor, but in view of the testimony to which reference has been made we cannot convict the court of error in not finding that the rule was arbitrary and capricious, *503 and not founded upon good reason. There is no doubt about it that the conclusion arrived at in this case may interfere with the sale of steel vaults, but the trustees of a cemetery company need not preserve the right of equal competition for all vault manufacturers. People that desire a steel vault can still obtain it and use it with an outer jacket and thus with an additional cost, apparently not exorbitant, can make "assurance double sure" that the remains will be properly preserved.
Another matter which is raised in the statement of questions involved is, "Does the defendant have the implied corporate power to buy and sell stone vaults to its lot owners?" The question should include the words "at cost." It would seem that the Commonwealth would be more interested in this question of transgressing the limits of chartered rights, than the parties plaintiff. However, the court disposed of it properly and held that the cemetery company had a right, without profit, to transact, in addition to maintaining their main purpose, such subordinate and connected matters which fit in essentially or are at least convenient to the due prosecution of the chartered purposes. Malone v. Lancaster Gas Light Co.,
The decree of the lower court dissolving the injunction is affirmed. The appellants to pay the costs of this appeal.