215 S.W. 222 | Tex. Crim. App. | 1918
Lead Opinion
The governing body of the city of Sherman enacted an ordinance of which section 3 is as follows:
“That if any person whomsoever shall hereafter dig, attend, dress, or keep any grave or burial lot in West Hill Cemetery, in the city of Sherman, for compensation, paid or to be paid, directly or indirectly, except under the direction and with the consent of the superintendent of said cemetery to be appointed as provided by this ordinance, he shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one dollar nor more than ten dollars. Provided, that nothing in this ordinance shall prevent the owner of any lot, or the relative within the third degree of any person buried in any lot, in said cemetery, from doing work upon or connected with any such lot.”
The relator is under conviction for violation of the ordinance, and seeks release on original application for habeas corpus, claiming that the ordinance is void. The caption of the ordinance is as follows:
“An ordinance providing for the proper care of West Hill Cemetery, making it a misdemeanor for persons other than employes of the city of Sherman to do any work therein for the purpose of digging graves or dressing and keeping the lots therein. And prescribing a penalty therefor.”
“One of these rights is the privilege of interring therein the bodies of her dead by her own hand, if she likes, or by the hand of such sympathetic neighbors or friends as may volunteer their service, or by whom she may employ for that purpose. The city may by ordinance establish such regulations concerning the manner of digging the grave, its depth, etc., and the interment, as are reasonable in their character and necessary for the protection of the public health and welfare, and she or those who make the grave for her must conform to such regulations. Her right, however, to make a grave in her own lot, and inter therein the body of her deceased daughter, canndt, by ordinance, be made dependent upon the permission of the city sexton, nor can he claim by virtue of the ordinance exclusive right to make the grave for her, even for reasonable compensation. The appellant was acting at the request of Mrs. Rush, and, as she might lawfully do by another that which she might lawfully do herself, he cannot be held amenable to an ordinance that was not effective as to her.”
Touching an ordinance in some respects similar to the one in question, we are referred by respondent to the case of State v. Scoville, 78 Conn. 90, 61 Atl. 63, which tends to support the theory of the validity of the terms of the ordinance in question. It is illustrative, however, of the fact that the decisions of courts upon the subject are not in complete harmony.
The New York case of Johnstown v. Parker, 28 Misc. Rep. 280, 59 N. Y. Supp. 821, and 45 App. Div. 55, 60 N. Y. Supp. 1015, passed on and held invalid an ordinance in practically the same terms as the one in question, and one quite similar was held unreasonable by the Supreme Court of California in the case of Los Angeles v. Hollywood Cemetery Ass’n, 124 Cal. 344, 57 Pac. 153, 71 Am. St. Rep. 75. Others in line are Silverwood v. Latrobe, 68 Md. 620, 13 Atl. 161, and State v. Chicago, 68 Minn. 381, 71 N. W. 400, 38 L. R. A. 672, 64 Am. St. Rep. 482.
It was charged against relator that she did dig, attend, and keep the grave and burial lot of Mrs. A. C. Gutecase for compensation without the consent of the superintendent ; she, relator, not being the owner of the lot nor related to the persons buried therein. The owner of the lot, Mrs. Gutecase, having the right of sepulture, possessed the privilege of keeping and attending the grave and burial lot, observing all reasonable regulations with reference to the character of the work done, and the possession of such privilege carried with it the authority to employ another to do therein the things that she might lawfully herself do. There is no complaint that relator, in the performance of the work, was transgressing any reasonable regulation with reference to its character, or was doing anything that might not have been lawfully done by the owner. The ordinance and conviction are based upon the theory that the privilege of .the owner of the lot to attend it might be lawfully restricted to personal attention, and that the right to do so by an agent might he arbitrarily denied by the superintendent of the cemetery. The ordinance fixes no standard of compensation to the superintendent, nor rule to determine what is required to obtain his consent to attend the lot through an agent. We believe that one having the right of sepulture, desiring to mark or beautify the grave of one to whom he is drawn by ties of respect, kinship or sympathy, may exercise the privilege of responding to these sentiments either in person or through the agency of another of his own selection, observing always the reasonable regulations as to the character of the means used in the care of the grave of his •dead, and the agent performing this service being engaged in a useful and harmless avo.cation, and performing an act wjiich' his principal had the lawful right to perform, cannot be made subject to a penalty therefor.
The relator is discharged.
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Rehearing
On Motion for Rehearing.
In a very able motion for rehearing, the correctness of- the view of the court expressed in the original opinion is challenged. Our views do not conflict with those of appellant on the point that we must assume that the title of Mrs. Gutecase in the cemetery lot was not that of a holder of realty in fee simple, but that it extended only to confer upon her a right of sepulchre, which is an easement in rather than ownership to, the land. Nicolson v. Daffin, 142 Ga. 729, 83 S. E. 658, L. R. A. 1915E,-p. 168, and notes. Many of the authorities cited by the appellant relate to regulations of burials and cemeteries under that phase of the police power whereby cities are authorized by the Legislature to protect the public health. Among these are City of Austin v. Austin Cemetery Association, 87 Tex. 330, 28 S. W. 528, 47 Am. St. Rep. 114, and Annotations, Rose’s Notes on Texas Reports, vol. 4, p. 569; Waldron’s Petitions, 26 R. I. 84, 58 Atl. 453, 67 L. R. A. 118, 106 Am. St. Rep. 688; Cemetery Association v. San Francisco, 152 Cal. 464, 93 Pac. 70, 27 L. R. A. (N. S.) 260,14 Ann. Cas. 1080.
The subject here under consideration relates to the validity of regulations concerning the care and improvement of -cemetery lots.
The penal clause of the ordinance is quot
“The owners of lots in said cemetery who may hereafter desire that the same be kept or attended shall pay to the city manager,1 or to such person as may be designated by him, such sum as may be agreed upon by such owner, and either the city manager or the superintendent of West Hill Cemetery.”
This provision, construed in connection with others in the ordinance, indicates that by its terms the ordinance permits the own of any lot, or the relative within the third degree, or any person buried in any lot in said cemetery, to do work upon any such lot, or to cause work to be done thereon, through the instrumentality of an agent, without obtaining the consent of the superintendent, provided the agent selected receive no compensation for his services. By the ordinance, as we understand it, no restriction is placed upon the privilege of one having the right of sepulchre to attend the lot in which he is interested in person or through an unpaid agent. The restriction takes place in consequence of the agent being a compensated one and not one acting gratuitously; and the legal question, as we conceive it, is whether this restriction is, as a matter of law, an unreasonable one.
The complaint charges that the relator did “dig, attend, and keep the grave and burial lot of Mrs. A. C. Gutecase, situated on the north half of lot 5, block 56, in West Hill Cemetery, in the city of Sherman, for compensation paid and to be paid.” It charges that this was done without the consent of the superintendent, was not under his direction, that the relator was not the owner of the lot nor a relative of any person buried therein, and that the owner of the lot had not paid the city manager, or any person designated by him, any sum or sums of money theretofore agreed upon by such owner and the said manager or the superintendent of said cemetery. We think that one of the attributes of the right of sepulchre in a cemetery lot is the right in person or by another, to visit and care for it. While the decisions of the court from which this principle is deduced deal with varying questions of fact, as we understand them they are uniform in recognizing the principle. One of the earliest cases at hand is Silverwood v. Latrobe, by the Supreme Court of Maryland, reported in 68 Md. 620, 13 Atl. 161. This was a civil case, and its final disposition turned upon a question of estoppel by contract. It related to a controversy over rights in a cemetery lot, and from it we take the following quotation:
“Nothing is clearer than that if a man, in the transaction of his own business, has a right to do any act, he can perform it by the hands of his agent. The general maxim, as old as our system of jurisprudence, is that whatever a man sui juris may do of himself he may do by another. Co. Lift. 258. Had not this principle been always recognized, it is difficult to perceive how the multiform transactions of mankind could have been successfully conducted. The maxim, qui facit per alium facit per se, carries with it, by implication, a recognition of the right of every man, unless exercising certain delegated powers, and acting in a fiduciary capacity, to employ an agent in the transaction of his business. Therefore when, by the terms of a deed or other instrument, a man has a right to do a certain thing, he can do it either with his own hands or by the hands of an agent, and, if the agent is interfered with by the grantor, it is an interference with the rights of the grantee.”
The ease of Graves v. Bloomington, 67 Ill. App. 495,' is one in which the superintendent of a public cemetery,1 governing which there was an ordinance prohibiting entry into the grounds after certain hours, was convicted of an assault on having ejected from the grounds a person who was there attending the grounds as the agent of an owner of a lot. In the decision it was said:
“The charter of the association was produced, from which it is claimed that the association is a purely private corporation, and that it may exclude any and all persons at pleasure. Granting that the charter confers a private franchise, yet we think the use made of it must necessarily impress it with a public character in some degree. When lots are sold for burial purposes, the purchasers certainly acquire the right to visit the same and to improve and care for them. This may be done in person or by agent.”.
In the case of Nicolson v. Daffin, 142 Ga. 729, 83 S. E. 658, L. B. A. 1915E, 168, a controversy in civil suit over the rights of the owner of a right of sepulchre, acquired while the cemetery belonged to a private corporation, it having subsequently come under municipal ownership, it is said:
“It would seem clear that the owner of a burial lot would have the right of personal superintendence, so long as that superintendence did not work to the injury of the cemetery or other lot owners. If the lot owner had the personal right to work upon her lot, as the rule of the park ¡and tree commission concedes, we can see no reason why she would not have the right to have the work done by a competent and -skillful person of her own choosing. The park and tree commission would have the right to pass any reasonable rule affecting the improvements in the lots; but it would seem to pass beyond the region of legitimate regulation to require of a lot owner that she buy her fertilizer from the park and-tree commission, and that no work would be permitted by a gardener of her selection, however capable, and however properly the work may be done.” Ashby v. Harris,*226 L. R. 3 C. P. 523, 18 L. T. N. S. 719, 37 L. E. Mag. Cas. N. S. 164, 16 Week. Rep. 869.
“It is clear that if an ordinance is passed by a municipal corporation which upon its face restricts the right of dominion which the individual might otherwise exercise without question, not according to any general or uniform rule, but so as to make the absolute enjoyment of his own depend upon the arbitrary will of the governing authorities of the town or city, it is unconstitutional and void, because it fails to furnish a uniform rule of action, and leaves the right of property subject to the despotic will of the municipal officers, who may exercise it in accordance with some principle which it would not be within the constitutional power of the state to sanction, or even so as to give exclusive profits or privileges to particular persons.”
Many of the authorities are cited in support of the text under note 5, among them Yick Wo v. Hopkins, 118 U. S. 358, 6 Sup. Ct. 1064, 30 L. Ed. 220.
An ordinance of the character mentioned is regarded as unreasonable and void, upon the ground that it is oppressive, in the text of Dillon on Municipal Corporations, vol. 2, § 592. Specific instances in which ordinances violating the principle named above, held invalid, will be found in Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239; Cicero Lumber Co. v. Cicero, 176 Ill. 9, 51 N. E. 758, 42 L. R. A. 696, 68 Am. St. Rep. 155; Richmond v. Dudley, 129 Ind. 112, 28 N. E. 312, 13 L. R. A. 587, 28 Am. St. Rep. 180; Elkhart v. Murray, 165 Ind. 304, 75 N. E. 593, 1 L. R. A. (N. S.) 940, 112 Am. St. Rep. 228, 6 Ann. Cas. 748; Hagerstown v. Baltimore & Ohio Ry. Co., 107 Md. 178, 68 Atl. 490, 126 Am. St. Rep. 382; Commonwealth v. Maletsky, 203 Mass. 241, 89 N. E. 245, 24 L. R. A. (N. S.) 1168; Newbern v. McCann, 105 Tenn. 159, 58 S. W. 114, 50 L. R. A. 476. The arbitrary power vested in the superintendent of the cemetery in the present ordinance we think classifies it as unreasonable and void upon the application of the principle stated, and we regard it as our duty to so declare it. See Encyclopedia of Law and Procedure, vol. 28, pp. 368 and 369; Ex parte Battis, 40 Tex. Cr. R. 112, 48 S. W. 513, 43 L. R. A. 863, 76 Am. St. Rep. 708.
erence to the manner in which the work was to be done. It occurs to us that the purpose of the ordinance was not to preserve the symmetry and beauty of the cemetery, and to insure order and system and skill in the performance of work therein. This we infer from the fact that, under the terms of the ordinance, relator, without obtaining the consent of the superintendent would have been permitted to do the work that she was doing provided only she was doing it gratis and not for compensation.
After the most painstaking and careful consideration of the motion for rehearing of which we are capable, -we are not able to coincide with the views of the appellee. We therefore adhere to the conclusion that the judgment should be reversed and the relator discharged. The motion for rehearing is overruled.
