The San Francisco call., 1896-12-18
The Odd Fellows Cemetery
Association Wins
It's Case.
Decision of Much Importance
Rendered by the Supreme
Court.
Justice Mcfarland Filed an Emphatic
Opinion Dissenting From His
Associates.

The Supreme Court, sitting in bank. yes
terday decided that ordinance 1850 of the
City and County of San Francisco is in
valid. This is the order which prohibits
the further purchase of lots for burial pur-
poses within the City and County; also
providing for further burlals being made in
lots heretofore acquired by persons or
associations for burial purposes.
The wide scope of the decision in its
effects may be inferred from the dissent
ing opinion filed by Justice Mcfarland,
which was in part as follows: "lf the fur
ther sale and purchase of lots for burial
purposes cannot be prohibited unless all
burials in lots already purchased are pro-
hibited, then it is evident that there can
be no gradual progress toward the extin-
guishment of the cemetery evil. The or
dinance operates uniformly upon all the
class who come within its provisions. As
long as the sale and purchase of lots for
burial purposes are allowed the cemetery
evil will be greatly magnited and It's sup
preston made correspondingly more diff
cult"
Justices Harrison, Van Fleet Temple,
HensAaw and Beatty held against the
validity of the ordinance. The closing
paragraph of the opinion, which was by
Justice Harrison, was as follows: "AS the
ordinance, by its terms as well as by its
operation, discriminates between the in
dividuals upon whom it is intended to
operate, it is, upon that ground, unreason-
able and invalid, and the petitioner should
be discharged"
Few opinions handed down in the
Supreme Court in late years have more
general interest TO the City and County of
San Francisco than this especially in
that very large section of the City known
as Richmond, in which the cemeteries
principally are.
The case in which the decision was
reached was known as ex parte Bohen on
habeas corpus. Mr.. Bohen, as the presi-
dent of the Odd Fellows Cemetery Asso-
citation, signed a conveyance of certain
lots in the Odd Fellows Cemetery and
therefore aided and apetted, according to
the complaint, in the violation of the
ordinance. The lower court found him
guilty of the Offense as charged. He then
took the case into the Supreme Court
upon an application for writ of habeas
corpus. The Supreme Court clears him of
ali liability in the decision which finds
that the ordinance itself is invalid.
The Supreme Court discussing the or
dinance. related some history. Under an
act of the Legislature of April %, 1868, the
Board OF Supervisors of San Francisco
was authorized to make ''aIl regulations
which may be expedient for the preserva-
ton of the public health and the preven-
tion of contagious Diseases" The City
and County could, through the Supervi-
sors, pass ordinances providing for the
burial of the dead within certain portions
OF the City, but the power of the Legisla-
ture to prohibit burials in the entire City,
as we'll as the power of the City TO pass
ordinances therefor, were questions not
presented for consideration in determin-
ing the validity of the ordinance under
which the petitioner for the writ of habeas
corpus was convicted.
The ordinance does not so the court
found prohibit burials within the City,
nor does it prohibit them within any des-
ignated portion of the City. On the con-
trary, there is, by the terms OF the ordi-
nance itself, an express sanction of the
right OF those who have purchased lots for
the purpose of burial in any portion of the
City, to continue to bury until their ca
pacity is exhausted.
incidentally the court referred TO the
remaining capacity of the Odd Fellows
Cemetery. "It appears that the Odd Eel
lows Cemetery will permit the interment
of $4,000 bodies, while the capacity of the
unsold lots is only 3600." There is no re-
striction in the ordinance upon persons
whose bodies may be buried in lots sold
except that they shall not be used for gen.
eral interment purposes, and the owner of
a lot may consent to the burial of one who
has no interest il the lot.
Unlimited burials and danger to living
persons might be reasons for the ordi-
nance, but while burisls are permitted in
the district the privilege cannot be linn
tied to one class of citizens. The owner of
lot within a cemetery who has purchased
it for purposes of burial holds the same
subject to the right of the City of prohibit
ing further burials- The ordinance in
question forbids the purchase or sale of
any parcel of land If made for the purpose
of doing an act there which is in itself not
only not ILLEGAL and forbidden, but is by
the same ordinance recognized as legal
and permitted to others. the sale and