, 1873-11-06
R0SEnlLL CEMETERY,
Inc Restrictions Imposed by Lake
Wow Declared Unconsti-
'.n. tptiOnal.
1t Can Use All ITS Lands for Burla,
y
Purposes.

Dissenting opiuion Of Three
Judges.
Tho following is tho opinion Of tie minority
Of tho Supreme Court III tho caao Of the Town
Of LnIo Wow vs. The nosohill Cemetery Com.
pany, ind which has Just beon flied at OTTAWA.
It ia wr'tton by 11r. Juslice Scott:
M H. yas sa 1s 1oS oa 1a Vw es. 70
Sasoa efs sa ' as s as Sas q %are
Of Tho 1lin Of February 1850 Will power e acquire,
II the Town u Of Liz vtos for cemeery W pproses pet
The Company was authorized by ia charter to lay oG
t. I - I'll sssss prsrsre shs ~
thn purposes Intended. 1ta organization was com,
pa1 ct G s 81
oeen expended IN beautlfylng ana preparing tile
grounds. Tho lands eitatsa ncar Tie like Shore,
about eeVen m'lea north OF tic Court House III tho
City Of Ohca8o aud three OF four miles north Of tho
northern city l!nita Of tho CITY, The Town Of Lake
View contains about 8,40o ncrcs Of land and 800
etcry.
LAlu View passed I'll ordinance Axing tho boutduslca
enacted by hs uct Of tho Legislature approved Tie 10th
Tho lands which ero tho subject Of this 1itgntiou ara
situated outside Of tho Limits, % a1ed by tue ordl-
bly,. and It Ia n,ato unlawful for tho Company to
ges tos sssnfss 1y " charter pre-
Tnr vsdty ot tho lesIsatlon restricting the Come
tery Company from en1arging its grounds Is tho
principal ;n Is Mqaeaton in tho eaeo. o.,
Of contract That tho State cannot rescnd impair,
# conceded lint tho State has tic power 10 control
use sy ms not nusousy @ M acct e @ of ao CONS
1nunity. but tho right 10 prohibit tho Company alto-
gcther from is use for tho objects designated In tho
On the part of tho appellant it is not don'od tho
charter q Tue appellee is contract tho paft Of tho
aoneral Assembly but !, is insisted Ii must ba ,nacz-
sbie exercise Of tho % ssSf % autnory ef Se ae7ern
nent, and that the prohibition contained In the net is
e cnsS ge Y
tl4is power shall bo employed.
use of its lands, as authorized by its charter, Is
proper exercise Of THO police power Of the Slate.
writer's and oour Of what Is tered he 1s pohcoy @
Of the State, u It's most comprehensive sense. ~ It's
when applied to matters like tho subject Of this cgs
lation i may 9s nssnmea that Il "a power co;cxten
tSS T d% ci en- not py
1ay DO said to. DO that inicrent and pienary
power in tho State which enabes it to prohibit Ill
society Il may be o1ercised to control tue use ot
property Of corporations well Of private persons.
justly taken. 50 far franchises Of corporation ure
1uouce juris, haa always BEEN held that tho ststo
o II not prohc by that eiauso Of iae consstis,
ton Of the United States which forbids the passage Of
]awa impairing the obligation Of contracts does It
deprive auch corporations Of any Of tho substantial
benefits Intended 10 bo conferred BY tho acts Of ncor-
roEation: Tho g. O. y. 3. r: Company Y. Lootnis,
pany, 81 Vermont, 14O a.
Iii. Cooley, in bis work on constitutional Ljmita-
tona atates tho doctrine thus broadly ali coniracta
and alright # Ia held, subject to this powur and
regulations which acct them may not only be estal
nnsa ~ 9 a ge but mus @ o BE- ubsst to
ass. % 9oosv on
Aa general propoaton It may bc stated It Is tho
province Of tho law-maklng power to determine when
What ase the subjects Of is exercise is clearly judi
ciai question. There must necessarily be constit,
sueh s aa
safety 9f welfare Of a93eisty / and when APP applied o
poraten 4 ss ssseia sss snd Privileges
ferred by Its charter.
Potter'a Deyarris on statutcs, 45a.
Cooley on Const. Lim,, GIT.
on different principle from the power 10 repeal alter
amend charters Of private corporasions.
pasa r. p,sss are cGayensnt to The
taI1trhed and mainlaiuel. It concorns tho pubic
health, and, II sucl pucca wcro not prepared by
private enterprise, It would DO tie duty Cf
the State to net IN the premises, Among tic most
benehcent acts Of the Government is that legislation
whicA fosters enterprises, and clothes aggregate
nunner Of cit'zens with power to aorn and beatify
grounds that shall receive tho remains OF our dead.
Ao sentiments Of our Lettcr uatres and Tue ciyii7a
tion Of Tho nge, demand these eiiies Of the dead
shall 10 naadent ttacve aud boauthed by thu employ
mont Of the highest aldl In landscape culture tho
erection Of costly monumental structures, and archl
kecturnl adoynugs Of elaborate design and wDrkyuau-
ship. It Is part Of tho common history Of tins cou-
try, that IN tho vicinity Of large cities whero wealth
lnd refinement abound, they arc 10 arranged They
attract lither as to pleasant places, loyerB Of tho
beautiful in nature, to groves and parks that have
tcen uorned by tho lavish expenditure Of money md
Tho works Of hose most skilled in that cpartuent Of
Labor. Ruch pace very fur from being nuisance,
per Sc. and the subject Of absolute prohibition ~
legislative action. {rhs Town Of Ioko Wow " Lotz et
a., ~ Ill. 8l.)
There Ia scarcely anything In nature but may be tho
Instrument Of mischief; and tho burial Of the dcud
may be done to be most injurious In ts conae-
quences to the people In the ylcuage But TINT ia not
the question III the at bar By this act Of tlo