The herald., 1897-10-12
THE CEMETERY ORDINANCE
Privilege Of a Private Graveyard no
Longer Exists

A rather important ruling was made
yesterday by Judge Allen in an opinion
given in the case OF the county of Los
Angeles VS.. Hollywood Cemetery asso-
citation.
A short time ago the board of super
visors passed an ordinance prohibiting
the establishing Of any cemetery or
graveyard fn the county without per-
mission. The defendant association is
now locating cemetery without hav-
ing obtained the permission of the su-
pervisors and the county sought by in
junction to restrain the association from
further proceeding with their plan.
The defendant raised the following
questions ON demurrer: That this ordi-
nance is invalid in that it is in violation
Of the fourteenth amendment of the
United States constitution, by virtue
Of the fact that it deprives the citizen
Of the use of his property without due
process Of law; second, that the subject
matter of the ordinance is not thing
within the police or sanitary regulations
conferred upon boards of supervisors
of counties by article 2, section q of the
constitution Of California;; third, that
it arbitrarily places the right to a legit-
vate property under the control of the
board of supervisors; fourth, that it is
unequal in its operations, permitting
present owners of cemetery already
dedicated to unrestrictedly use their
property, while forbidding the same
rights to others.
I'VE are first led to inquire" says Judge
Allen, whether or not the establish
ment of cemetery for the purpose of
interring therein dead human bodies is
a business or vocation which may be
we'll presumed to have an injurious
tendency. Whatever may have been the
accepted theories of the past, it is safe
to say that the opinions at the present
date of those best able to determine are
we'll settled that the interment of animal
matter in the soil is menace to public
health. The great weight of authority.
in my opinion, indicates that the manner
Of the interment of dead bodies, the
place of their interment and the estab-
llishment of cemeteries for such inter-
ment, are all matters within the power
conferred upon the boards therein
named by article 2, section 2, of the con-
stitution of this state.
SIS this ordinance, then, violative of
the fourteenth amendment to the Con-
stitution of the United States. The
constitutional protection. to property
necessarily iracludes the use of such
property, but the use of property must
be held to be such a use as shall not in
terfere with the vested rights, privi-
leges. health ard welfare of the general
public. The constitution does not at
tempt, nor can it be construed to CON-
fer upon a citizen the right to the use of
his property in an unlawful manUer, nor
to the use of it in such manner as
would interfere with the rights Of his
neighbors and those around him.
'It is urged, on. behalf of the defend
ant in this case, that this ordinance is
unequal ixl its operations. I find moth
ing in the ordinance, nor the record,
which supports this theory The ordi-
nance is general in its terms. 1t in.-
cludes the whole county, and all the
lands therein, and the right Of every
citizen in the cougaty owning land Is, in
my mind, equally affected by this ordi-
nance. 1t simply is an assertion of the
right Of the board to the police power
which think is reposed in that board.
"It is my opinion that the complaint
states a cause of action; that no cause
is shown why an injunction should not
issue; and it is ordered that the demur-
rer be overruled, and that an injunction
issue as prayed for in the complaint"