249 N.W. 484 | Mich. | 1933
Plaintiff, a duly licensed embalmer, undertaker, and funeral director, attacks, by bill in equity, as invalid, certain rules and regulations of the city commission of the city of Jackson, and seeks to restrain defendants from enforcing the same against him; seeks an injunction against the superintendent of cemeteries, and complains of the misconduct of the superintendent of cemeteries of defendant city. From a decree for defendants, plaintiff appeals. The important question is the validity of the rules and regulations of defendants attacked. These are, that funerals, while within the cemetery grounds, shall be under the control of the superintendent of cemeteries or one of his assistants, and that no tents except those owned by the city will be allowed in the city cemeteries for funerals. Plaintiff claims these rules are arbitrary, capricious, and unreasonable as applied to him. Burial is a right *148
subject to public control. Perkins v. Lawrence,
The city of Jackson is a "home rule" city. 1 Comp. Laws 1929, §§ 2235, 2236, provide for acquisition either within or without the city by "home rule" cities, of cemeteries. The charter of Jackson provides for acquisition by the city of cemeteries. The city of Jackson, having acquired such cemeteries, owns them (5 R. C. L. p. 244); and is governed by the same rules which control private corporations engaged in a similar business under like circumstances. Andrews v. City of South Haven,
Plaintiff claims the rules prescribed by the defendant city, above mentioned, are arbitrary, capricious, and unreasonable as applied to him. Persons desiring to bury dead in defendants' cemeteries are required to acquire a right of burial substantially similar to that prescribed by 2 Comp. Laws 1929, *149 §§ 6480, 10403, 10431, 10445. The charter of the city of Jackson provides:
"The city commission shall make such regulations for the burial of the dead, the care, management, and protection of the grounds, monuments, and appurtenances of the cemeteries, buildings, and other improvements in all parks or public grounds and for the public use and enjoyment thereof and the orderly conduct of persons therein, as may be consistent with the general laws."
"An ordinance relative to city cemeteries of the city of Jackson," adopted September 17, 1900, provides for the creation of a cemetery board, and that:
"Said board, subject to the directions and ordinances of said council, shall have the care and management of such cemeteries and the buildings therein, and shall have the power to employ a superintendent and such laborers as may be necessary therefor; shall direct the improvements and embellishments of the grounds; * * * fix the price of lots, and make the sales thereof."
It is also provided:
"It shall be the duty of the superintendent to superintend the grounds in the city cemeteries, to keep the walks and drives in good condition and repairs, and also the public grounds and unsold lots, and to see that the rules and regulations in this ordinance prescribed are properly observed, for which he shall receive such compensation as may be established by the common council."
The individual reputation of members of the cemetery board, their tenure of office, acting on the rights of others in the face of a people vigilant to watch and active to discern, and the force of public opinion, ordinarily, may be relied upon to keep the board and superintendent of cemeteries within the *150
legitimate sphere of their undoubted rights. Upjohn v. RichlandTownship Bd. of Health,
Under the lawful rules and regulations of the city council and cemetery board of the city, parties may purchase and acquire rights of burial, but not the absolute title in fee to cemetery lots in defendants' cemeteries. Rowley v. LaingsburgCemetery Ass'n,
Decree affirmed, but without costs, public questions being involved.
McDONALD, C.J., and CLARK, SHARPE, NORTH, FEAD, and BUTZEL, JJ., concurred with POTTER, J. WIEST, J., concurred in the result. *152