73 P. 987 | Cal. | 1903
Lead Opinion
This is an action to declare void an ordinance passed by the board of supervisors of the city and county of San Francisco and to enjoin the city and county authorities from enforcing the same by criminal prosecutions against the plaintiffs and others. After the filing of the answer, the court, on motion of the defendants, gave judgment on the pleadings against the plaintiffs, from which the plaintiffs appeal. The determination of the case, therefore, depends on the facts set forth in the complaint, which for the purposes of the decision, and so far as they are properly pleaded and are material, must be taken as true.
The ordinance in question declares that "it shall be unlawful for any person, association, or corporation, from and after the first day of August, 1901, to bury or inter, or cause to be interred or buried, the dead body of any person in any cemetery, graveyard, or other place within the city and county of San Francisco, exclusive of those portions thereof" belonging to the United States. It further provides that any person violating its provisions shall upon conviction be fined not less than one hundred dollars nor more than five hundred *230 dollars, or by imprisonment not exceeding six months, or by both such fine and imprisonment.
The two corporations plaintiff each own a tract of land set apart and dedicated for use as a cemetery, and have been using the same for that purpose for upwards of thirty years. The cemeteries are divided into small lots for sale to private persons, to be used for burial purposes. Many of the lots have been sold and used, and many others have not been sold or used, and are still held by the respective corporations for sale for such purpose. The plaintiff Plageman is the owner of one of the lots in the Odd Fellows' Cemetery, sold to him for burial purposes, and yet capable of having one or more bodies interred therein.
The ordinance in question was manifestly passed in the exercise of the police power given to the city and county by the constitution. Article XI (sec. 11) provides that, "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."
The city charter provides (subd. 1, sec. 1, chap. 2, art. II) that "The board of supervisors shall have power: 1. To ordain, make, and enforce within the limits of the city and county allnecessary local, police, sanitary, and other laws and regulations." The insertion of the word "necessary" in the grant of power contained in the charter does not limit or restrict the power given to the city by the constitution. The city charter in municipal affairs is paramount to general laws, but it cannot be superior to the constitution itself, and nothing contained in such a charter can in any way affect a grant of power conferred by the constitution. All the legislative power of the city is by the charter vested in the board of supervisors (art. II, chap. 1, sec. 1). By virtue of this clause the constitutional grant of the police powers of the state to the city goes directly to and vests in the board, which thereby becomes possessed of the right to exercise within the city limits the entire police power of the state, subject only to the control of general laws.
A number of cases are cited by the appellant from other states bearing upon the question of the police powers of cities or towns under special and limited grants contained in their *231 respective charters. Generally speaking, these authorities have no application to the case in hand. The power conferred by the constitution in this respect, subject to the two exceptions, that it is local to the city and that it is subject to general laws, is as broad as that of the legislature itself.
Many cases are also cited upon the proposition contended for by appellant that the power of the board of supervisors to make and enforce police regulations is confined to the regulation or suppression of those things which the law declares to be nuisances in themselves, and that it is not within the power of the board to declare an act or a thing a nuisance which is not so in fact or has not been declared to be such by the decision of some court acting with reference to the particular act or thing. Neither of these cases is authority in this state under the police power granted by the constitution. The exercise of this power is not limited to the regulation of such things as have already become nuisances or have been declared to be such by the judgment of a court. "The power to regulate or prohibit conferred upon the board of supervisors not only includes nuisances, but extends to everything expedient for the preservation of the public health, and the prevention of contagious diseases." (Exparte Shrader,
We do not think the ordinance in question is in conflict with any general law. The provisions of the act of 1859 for the incorporation of rural cemetery associations (Stats. 1859, 281), which are substantially re-enacted in sections 608 to 616 of the Civil Code, are cited as general laws conflicting with this ordinance. Section 4 of the act and section 608 of the Civil Code give such corporations power to take and hold, within the county, lands not exceeding three hundred and twenty acres in extent, to be held and occupied exclusively for cemeteries. This is a grant of power to such corporations to own property, and the limitation of the amount that may be acquired, and of the uses to which such property may be devoted.
There is nothing in these laws purporting to be an exercise of the police power of the state with respect to the public health, safety, or comfort. They were manifestly not intended to operate upon, or in any manner restrict, the authority of municipal corporations, in the exercise of police power, to regulate and control the location and maintenance of cemeteries. They were simply designed to enable persons to associate themselves together as corporations, and by that means, and in the mode prescribed by the law, to do what might have been done by them as individuals without becoming subject to the restrictions contained in the law. It is not to be supposed that it was intended that these corporations should have greater privileges than natural persons, and be free from control by police regulations designed to preserve public health and promote the general welfare. *233
Neither is there anything in the Penal Code which materially conflicts with, or prevents the enforcement of, the ordinance. Section 292 merely declares that the duty of burial of the body of a deceased person devolves upon the persons therein specified. Section 297 forbids the burial of a body within San Francisco, except in some cemetery already existing under the laws of the state or thereafter established by the board of supervisors. This is a negative provision, and does not by inference confer the right to bury in the excepted cemeteries. That right was pre-existing, but was subject to be taken away by police regulations, and remained subject to that condition after the enactment of section 297 to the same extent as before. So far as the ordinance forbids burials outside of those cemeteries, it is in strict accord with section 297; and so far as it forbids burials within those cemeteries, it is not in conflict, for that section gives no right to do that and makes no provision relating thereto. It may be that the law supersedes the ordinance, so far as the territory embraced is the same in both, and that the ordinance is to that extent inoperative. If so, the only result will be that for the offense of burial in any place other than an established cemetery, the prosecution and punishment must be under the state law, and for a burial within such cemeteries, it must be under the ordinance which as to such territory is in force and effect. The slight difference in the punishment provided is, in view of this result, entirely immaterial.
It is contended by the appellants that while it may be true that cemeteries are subject to regulation by the police power, still it is a cardinal principle applicable to such powers that any given exercise of them must be reasonable under all the circumstances appearing in the case. There are some allegations in the complaint intended to show that this particular ordinance is unreasonable. It is well settled, however, that, except where the court can see, in the light of facts properly brought to its knowledge, that a given police regulation has no just relation to the object which it purports to carry out, and no reasonable tendency to preserve or protect the public safety, health, comfort, or morals, the decision of the legislative body as to the necessity or reasonableness of the regulation in question is conclusive. (Commonwealth v. Alger, 7 *234
Cush. 104; Ex parte Andrews,
It was intimated in the case of Los Angeles County v. HollywoodCemetery Assn.,
It is settled law that all property is held subject to the exercise of police power, and that the provisions of the constitution forbidding laws impairing the obligations of contracts, and declaring that property shall not be taken without due process of law, have no application in such cases. (Butchers'Union etc. Co. v. Crescent City etc. Co.,
It is alleged that the ordinance was passed for private purposes and from improper motives. There is nothing on the face of the ordinance to show this, and no inquiry or proof of *236
extraneous facts to show the motive impelling the legislative body to pass an ordinance can be allowed. (Soon Hing v. Crowley,
Counsel on both sides have also discussed at great length and with much learning and ability the question whether or not, conceding the ordinance to be invalid, a court of equity will entertain an action to enjoin a municipal corporation from enforcing ordinances prescribing punishment for misdemeanors. As we have reached the conclusion that the ordinance in question is a valid exercise of the police power, it follows that it will not be necessary to consider this question.
It is therefore ordered that the judgment be affirmed.
McFarland, J., Angellotti, J., and Lorigan, J., concurred.
Concurrence Opinion
I concur in the judgment. The power of the authorities to prohibit burials in established cemeteries within the corporate limits of a city is unquestioned. That power, however, is not to be exercised arbitrarily, but is to be reasonably employed for the accomplishment of the appropriate end in view, — the sanitary welfare of the community, whose health is or may be threatened or endangered by the continuance of burials. Taking notice of the limited area of the city and county of San Francisco, its great and constantly increasing population, and the location of the plaintiffs' cemeteries, it will not be said that the prohibiting of future burials within them is not demanded as a sound sanitary measure. The ordinance in question, therefore, at least to the extent to which it seeks to accomplish this end, is valid, and this determination disposes of all of the asserted rights of the plaintiffs.
I am not able, however, to agree with what seems to be the view of the prevailing opinion, that in its fullest scope the ordinance is reasonable and legal. It prohibits burials, not alone in all existing cemeteries, but also in "all other places within the city and county." It is the duty of the authorities of a county to secure to its inhabitants places of burial for their dead, and it is the corresponding right of the inhabitants to bury their dead with as little inconvenience and expense as the circumstances will permit. The county authorities *237 therefore, may not arbitrarily refuse to permit the burial of the dead within the county limits, and any ordinance which purports so to do must be, as to its reasonableness, the subject of judicial review. Otherwise, if one county might, all might, and there would be imposed upon the inhabitants of the state the forced necessity of cremations, burials at sea, or other modes of disposition repugnant to their feelings and repellant to their religious views. It must follow, therefore, that so sweeping an ordinance as the one under consideration is, in a proper case, subject to judicial consideration as to its reasonableness or unreasonableness. It is pleaded in the complaint that there are within the limits of the city and county of San Francisco tracts of land suitable for cemetery purposes, which could be used as such without in the slightest degree endangering the public health. The question thus presented is either one calling for evidence or one of which the court takes judicial notice. If it be the former, the allegation was proper. If it be the latter, then judicial notice may be taken of the fact that there are tracts of land within the corporate limits of the city and county, with direct drainage to the ocean, which could be employed for cemetery purposes without in the least threatening the sanitary well-being of the community. True, there are no cemeteries established, or so far sought to be established, upon any such tracts of land, and the question, therefore, becomes unimportant for decision in this case. Its determination here would in no way affect the rights of these plaintiffs, but it may become of consequence in the future, and should not, therefore, I think, be thus decided here where none of the rights of the plaintiffs are involved in its determination.
Concurrence Opinion
I concur in the judgment and generally in the opinion of Justice Shaw. I think, however, the opinion states one or two propositions more broadly than necessary for the decision and in terms which hereafter may be found to require some qualification. For the purposes of this case it is sufficient to say that the prohibition of future burials within city limits is a valid exercise of the powers vested in the governing body of a municipal corporation, and to determine the occasion for the exercise of such powers is a matter committed to their discretion by the constitution of the state. With the exercise of such discretion *238 the courts cannot and ought not to interfere. The ordinance being valid on its face, the facts alleged in the complaint for the purpose of invalidating it were not admitted by the motion for judgment on the pleadings. That motion, like a demurrer, admits only such facts as the plaintiff would be allowed to prove, and admits no legal conclusions.
The difference between this ordinance and a similar ordinance passed by a county is manifest. The counties in the aggregate embrace all the territory of the state. If one county could forbid burials anywhere within its limits, every other county could do the same, and so by a succession of local ordinances the general laws allowing and enjoining burials could be defeated. But as to cities and towns the case is different (and San Francisco is none the less a city because the boundaries of the county are identical with those of the city). Cities and towns are of restricted area, embracing in the aggregate but a small fraction of territory of the state, and the density of population within their comparatively narrow limits is a reason generally if not universally recognized for prohibiting the burial of the dead in such close proximity to the habitations of the living.