Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-03-21
GRACELAND CEMETERY.
The Assistant Attorney Thinks the Com.
missioners Cannot Restrict Interments.

6hACEIAND CEMETERY.
The Assistant Attorney Thinks the Com
mfssfoners Cannot Restrict Interments.
Assistant Attorney for the District Thoma,
was recently requested to submit his opinion
whether under the joint resolution of Februar,
rs, 1892, empowering the Commissioners t.
make police regulations they can prohibi
further interments in Graceland cemetery.
Mr.. Thomas today forwarded the following
as his opinion on the matter:
THE law (sec. 594 ct seq. R. 8. d. CO. pro-
vides that when five or more persons shall
associate themselves together for the purposes OF
forming a cemetery association in the District,
such persons shall have power to adopt a
corporate name. and by that name
shall be known as q body corporate
and shall have perpetual succession and
be invested with all powers, rights
privileges. liabilities and immunities incident
to corporations. Such associations shall have
power to acquire by gift, grant or purchase
any land. not exceeding fifty acres, and lay out
the same for burial place for the dead
with convenient aisles and to sell the same
for such purpose and for no other pur.
pose, reserving a sufficient portion thereof
for the burial of the stranger and in
digent, and that the proceeds from the sale OF
lots after deducting all expenses Of purchasing
and laying out the same shall be applied In i'm
proving and ornamenting the grounds. 1t Is
further provided that such associations shall
have the land designated as a burial ground
surveyed and plated. and a plat recorded in
the ONCE of the recorder Of deeds for this Dis
trict.
"On the 30th day Of September, 1871. Grace
land cemetery was incorporated under this
general law, and its certificate was on the same
day duly recorded in the Office Of the re-
corder Of deeds. iber 2, acts Of incorpora-
ton. folio 1853. On October 16, 1871,
this association acquired by purchase thirty
acres and ten perches of land for the purpose
of burial ground and caused the same to be
surveyed and plated according to law and
considerable money has evidently been spent in
identifying the grounds.
1T is plain to me that the act Of incorpora-
ton Of Graceland cemetery is a contract on the
part Of the United States that the association
may exercise the powers and privileges
in class Of the general incorpora-
ton law until revoked or repealed by
Congress. and while it is perfectly competent
for that body to impair the contract or to con-
troll and restrict the association in the use of
its land. 1 doubt the power of the Commits
sioners to do SO without express authority from
Congress.
but without going more at length into this
case. which is an interesting one. think the
question has been settled, SO far as any remedy
under the police power is concerned. by the gen.
eral term of the Supreme Court of this District
in Sullvan's case wash. Law Rep,
vol. 90 page 7l3). In that case the
court, it would seem, limited the police
regulations mentioned in section OF the joint
resolution Of February 2. 1892, to regulations
in addition to those already made in accord
ance with the act of January 26, 1887. By ref
erence to the act of 1887 it will be seen the
Commissioners were empowered to make, mod
ify and enforce usual and reasonable police
regulations on ten different subjects. l do
not quote the provisions OF the act
of 1887 because none of the regulations
which it authorized relate to burial grounds.
In disposing of the question in Sullivan's case.
which was whether the Commissioners had the
make a police regulation, in the interest
of quiet and good order. imposing a
penalty for selling liquor without a license,
the court held this language: "In the
construction of this grant of power
the first question is whether it is affected by
reference to the act of January &c, 1887. We
think. in the first place. that the words in addi-
ton to those already made under that act
necessarily mean, "those already made in ac-
cordance with. &c, so that reference
is actually made to the provisions of
the act ITSELF" 1t appears. therefore,
that the police regulations the Commissioners
are authorized to mako by section of the
joint resolution Of February 2. 1892, are con-
fined to such as are in application of those
already made on the subjects specified in the
act of 1887. But whether this 10 the result or
not the power to make police regulation
would not carry with it the power to pro-
hibit further interments in cemeteries
within certain limits. The power to
restrict control the use of property is es-
sentiahy different from the right to regulate
its use and rests upon different principle.
For these reasons I am of opinion you
have no authority in the exercise Of the
police power which has been delegated to
you by Congress to prohibit further interments
in Grace!aEd cemetery. l think the most you
can do is to investigate the question, ascertain
whether Graceland cemetery is a nuisance and
a menace to public health and report the facts
to Congress-"