The sun., 1910-05-09
The Restriction Of Burial in elite.


State A dozen or more cemetery cor
porations were organized in the same
county, each with the maximum acreage
\ permitted by statute. Their burial
grounds were 30 located a. 10 be con-
tiguous and 10 form when united a cem-
etery Of more than 2.OOO acres. The
union was effected by consolidating the
several corporations into one company
which is a simple process requiring little
public official action except the formal
sanction Of a Supreme Court Justice.
Thus there has been formed by indi-
rect means a cemetery corporation with
lands far more extensive than could be
devoted 10 burial purposes II il had been
organized singIy in the frst instance.
Such an evasion Of the spirit Of the
law NAV not be very harmful in sparsely
settled rural districts, although the in
PRODUCTION Of large cemeteries into sub
urban neighborhoOds il usually viewed
with disfavor by tho inhabitants and
often seriously retards the development
of such localities.
Tho problem Of dispOsing of the dead
in cities has given rise TO legal oontrO-
versies 10 England for hundreds Of years
and in this country from the time We
first had cities. II IL satisfactory to
know that the outcome Of such contrO-
versies here has been the Judicial estab-
lishment Of the doctrine that the State
"a all powerful In the matter Of the Crea-
tiOn and continuance Of cemeteries.
This Is we'll illustrated by the case Of
the Laurel Hill Cemetery, in San Fran
cisco, decided in its present term by the
supreme Court Oft nited States.
The oemetery was organized as a cor
pOTatiOn under a general law relating 10
rural cemeteries in 1857, az which time
its lands were outside the city limits Of
San Francisco and more than a mile
distant from dwellings and places Of
business. The lands were purchased
from the city for about s25 ,OOO. they have
h"en used for burial purposes ever since:
5000 lots Ohave been sold and $4,000
worth Of lots still remains to be sold. and
the corporation has spent more than
two million dollars in maintenance and
establishment. The cemetery Is now
within the boundaries ~ San Francisco
and there are many dwellings near il.
This being the condition Of things. the
municipal authorities adopted an ordi-
nance reciting that tho burial Of the
dead within thu city and county Of san
/ Francisco Is dangerous to life and detri-
mental - the public health" and pro-
hibting any such burial thereafter
under penalty Of fine or Imprisonment
or both. The officers Of the Laurel
Hill Cemetery protested. The city had
taken $4,000 from them In payment for
land expressly designed % be used for
burial purposes. and now IL refused 10
permit such Use. although a large area
was still available for interments. They
protested in vain and then brought
suit against tho city 20 restrain che
enforcement Of the ordinance. In this
suit the cemetery management has been
defeated in the court Of first instance
In the Supreme Court Of California, and
now finally in the supreme Court Of the
United States, where the judgment was
unanimous.
The power Of the State Legislatures
TO modify and limit the Use Of property
in order 10 safeguard life and health has
been recognized and asserted by the
courts In this country ever since the de-
velOpment Of constitutional law began.
The constitutional declaration that a
mans property may not be- taken from
him without compensation Ia qualified
by the implication that its Use NAV bs
restricted 70 far "a that Use h clearly
preiudicial 20 the public safety. The
question whether any proposed use a
dangerous Is a question for tho LeRis-
lature. The courts never reverse the
decision Of the Legislature on such a
question unless IL appears 20 be with
out any substantial basis in fact or rea-
son. Tho Board OF Supervisors OF San
Francisco has determined that further
burials within tho city limits will en-
danger human lifs and health. How
far cemeteries arc necessarily unsani-
tary Is a question upon which opinion
Is diviGed; but, a. was said by Mr..
Justice HOLMES, who wrote the opinion
Of the United States Supreme Court
II every member Of this bench clearly
agreed that burying grounds were CEN
tres Of safety and thought tho Board
Of Supervisors and the supreme Court
Of California wholly wrong il would
not dispose oi the case" Tho ordinance
could not properly bs overthrow be-
cause the court did not concur with the
local authorities Tradition and the
habits Of the community tho learned
Judge goes on % say, count for mora
than logic Sinoa and before che max.
ing Of constitutions tho regulation Of
burial and tho prohibition Of Il In GER
tain spots, especially in crowded citlsa
have been familiar 10 the Western world
Tho plaintiff must wait until there d Al