, 1873-11-06

iron tho rornlous rart Of tho CITY, In tIHrheS-Ha-
mmedato sisty Il 'ts ose ia lands d" esno MS1 s se D
very grave 9lcat!on would arise: Where eou tho city
na s fs" ef IT, t5esa s Th s
cannot assot to tho proposition la tho udnoral A.
prize lilo citizen ii law7ui use u ls properly it
@ Or o nsa os il @
afcn y ho nes IN so FREQ sn0Sy
Aia peers, or tho INV cf tho an. Tis cartna nriu-
cpo i'm een cn,Iole III tho Contributions q I'll the
Incorporated in tle Federal Constitution. IN view
% s IT. IT, =, a a
construction would render ntigatory ovtry conBtttn-
tona provision intended for LID protection Of private
II person is 10 10 deprived Of hia private property
II must b by tho exercise Of Tho right Of eminent do
matn and in all such oaaes Just compensation at DO
We atb Of op,nion :hs pct, ao fpr ns It ltrns the
boundaries Of losoht oemetsty "a the rsa q 1ands
for the purposes named In tho eharter, is an uconsti
tutona exercise Of power, and cannot bc nnihtalnct
Tho bi wnB properly dianissed, and the dccroc must
pccrre atllrtned. .
In this opinion Justices Walker, McAllfstor,
and Scholhold concur, fhov bcur a majority, Of
tho Court dissenting opinion, written by Mr.,
3tiatieo Sheldon, and conourrod In by Ohiof J1a-
tice Droeso aud Alr. Justice Crag is as follows
D1ssENr1Hu or1N1ox. ''
! cannot concur Il tho acnial q tho power to tho
the huriai Of the oad Whom doomed necessary for the
been exercised ~ tho law-Insfing power Of stato.
hom,nen nortutt arbe 10 ssptlite ,ere victtafe"
The City Council Of Charleston '. Tho Wentworth
baptist Church, srobhart, $40, Kncaia's Arrca 60
o existing bnfiei grounds, wero bsd 70 be eonstita.
subject Of private rights underwent full discussion.
Restraints upon sNcll' particular nsc Of property
hed to b. sbsS Of the s;srese
laturo to prohibit all future internens within tho Linz
Ia Of the City of Chicago, take It, ~ not to 10
TINT tho eSue public considerations which would
juatify the exercise a.. Of THO police power to
city, wo oono to renot a
the prohibition ut Buch distance outside Of tho
limits, as that whoro tho ground III ouestiun is atu
We're things to remain thoy now arc with no fur
thcr fncrcasoof population In the vicinity Of this ce1e-
ap os oaersso
essd e b. nS sas a Rs:a / wss o hs l.
hit It IL arrrehended thn thta police power may 1o
exercised we'll to prevent what may be likely TO be-
COMO nuisance, as to suppress m already existing
ono.
In Cooley on Constitutional rim. It is stated thus:
And chtrcl. yards which, found bs tho advance Of
health. danger Of becoming So, llablo 70 DO
closed against further for cemetery purposes"
m poleo Is pot T. @
tho existence Of the power TINT there 10 present
cason for its exercise. Is sufficient That futuro
strip Of territory comprising tho Town Of LsLe View,
the large number Of within its anits
frnfl thn pF0finttv nf i1n nf
Chicago which it adtoina aud In view OF the rapidly
increasing population Of Tint city. which a eonstany
oyor1owinR ho city Boundaries and filling up the adj
3aeent town, tho Legislature, We may proaune for
Inc purpose Of preventing the miHciieyous co,ase-
crowded burial'grounda, nas thought proper to pro-
h5bt the extension Of burfal-grounds within that
town.
Is 1t unreasonable to anticipate, IN view oi the
ycllos growth Of tho City of Chicago, that 1T no far
dlstant dny tha ground Will be found to bs iu tho
m!.st of tho dense population Of city, There a
nnture Of oOvlalng nuisance Of is charaetor after
such, md lke considerations in vow Of tho probabilt
tics Of the future, tho Legislature nay 10 supposed to
e It. faa % M PsN Rss ,s sfaesn aerss s b s5
Of the law.maEing power and amnul It's euactnlont,
mnde for tho welia5e Of IN expected populous conuu
tS = The ag etc. sass s Il ss
E Il fn So nature s j asss savo as soes oGa o s
tho. exIgcncy upon which their laws aro founded"
Tls ts believed to be tue well.setod doctrine upon
tie subject; and TINT wlether there WIS sufficient
occasion for tho exercise Of tho police power In any
given case is not judicial question, but political
question: provided the exercise Of tho police power he
not colorabe 1t IL admitted that tho nolico regulation
must be B,ich In fact. and that the Of pri
yao property Is not to be abridged under the pretence
only Of police regulation. There wauld seem to be
euough ~ matters which Of public notorloty and
Of Judicial cognizanco to muniteH that the exercise OF
tho power horo WIS not merely colorable, but that
terc was occasion for fair question US to tho pro-
prety Of making such police regulation as was liere
made. It cannot bo essential to tho validity Of the
law that tho act ttscf ahou1d eclare or TINT tho al
legations proofs in tle case should ahow tho OK
stence Of facts oyinciug tho necessity Of tie lnw 1t
would present new phase Of judicial controversy to
iayo All igsuo Of fact ln court upon tho necessity Of
the pasaaRo Of tho law,
Ths prohibition Of ills particular se of ones land,
then It Is believed wpnid be valid In the case Of
natural person but the RoseIiil Cemetery COMPANY
denies that ii ia Co. In rcsncct to It's property BECAUSE Il
has chartered right to make ibis iart!cular Use Of it.
Tho Charter Of pryate corporation docs not imply
6p undertaking uu The part Of tho State TINT In fhc
same way in which their o1erciae Is rer1nissab1e al
first NAV tin cprporatora continue the exerciso of
teir riVts hut on liz contrary he rights and priy
cgcs Which te Charter confers aro only thereby placed
pou tho same footing with other legal rights and ry-
cges Of tho citizen III resnect to proer rules for iher
d,e regulation, protection. and eaJoymeut, iCoo]ey's