State v. Scoville , 78 Conn. 90 ( 1905 )

The New London Cemetery Association was competent to pass by-laws under the provisions of chapter 134 of the Public Acts of 1903. Neither the language of that section, nor of § 4452 of the General Statutes permitting the organization of cemetery associations in accordance with the provisions of § 3937, which provides for the formation of corporations without capital stock, requires cemetery associations to be organized under § 3937 in order to become such within the meaning of chapter 134.

The provisions of General Statutes, § 3938, which are the same as those of Part V, § 90, of the Act of 1903 concerning corporations (Public Acts of 1903, p. 177) — that any corporation without capital stock may, by a two-thirds vote of all the members of the corporation, make by-laws imposing fines and laying assessments — have no application to the question of the validity of the by-law under consideration, since the New London Cemetery Association is not a corporation without capital stock, organized under § 3937, nor is the by-law in question of the character of those described in § 3938.

The passage of that part of the by-law in question in this case, was within the authority conferred by chapter 134 of Act of 1903. The language of that Act, permitting the enactment of by-laws providing for the care and management of all burial lots, is broad enough to cover the provision of this by-law as to the planting, cutting or trimming of any herbage of any kind upon any burial lot, etc.; and we find nothing in the Act indicating that it was only the care and management of burial lots by their so-called owners which it was intended might be provided for by by-laws.

Neither the Act (Chap. 134) nor the by-law in question, in so far as they so regulate the planting, cutting or trimming of any herbage upon burial lots, is invalid as depriving persons of the proper use and control of their own property; nor can we say that such part of the by-law is void, as allowing an unreasonable interference with the privileges of those who have burial rights in the cemetery lots.

The land comprising the Cedar Grove Cemetery is held by the New London Cemetery Association for a public use, and the legislature permits this association to exist, to "discharge in behalf and for the benefit of the public the duty of providing, maintaining and protecting" such burial place.Evergreen Cemetery Asso. v. Beecher, 53 Conn. 551, 553;Evergreen Cemetery Asso. v. New Haven, 43 id. 234, 241. In the proper performance of that duty such associations are not only authorized to provide suitable burial places, the right to use which may be acquired by the public, and to so far regulate the use of such burial places as may be necessary for the protection of the public health, but also to keep and maintain that condition and appearance of the entire cemetery grounds, including the burial lots, which is generally demanded by public sentiment and taste.

Generally, one receiving from a cemetery association a deed of a burial lot does not thereby take a title to the soil itself. The rights of burial are so far public, that the private interests so acquired, to a limited use of particular lots for purposes of interment, are subject to the reasonable police regulations of the association having charge of the cemetery. The association may be regarded as holding the fee in trust for the purposes for which the corporation was organized. Edwards v. Stonington Cemetery Asso., 20 Conn. 466,478; Seymour v. Page, 33 id. 61, 65; Perkins v. Lawrence,138 Mass. 361; Sohier v. Trinity Church, 109 id. 1;Bessemer L. I. Co. v. Jenkins, 111 Ala. 135; Page v.Symonds, 63 N. H. 17.

The holders of burial lots in the Cedar Grove Cemetery have acquired only such limited right to the use of such lots, and have consented to the proper regulation, by the association, of the use of the burial lots, by accepting deeds which expressly provide that the lot owners have and hold the granted premises, "subject to the charter and to the by-laws, rules and regulations made or to be made in conformity therewith; and entitled to the rights and privileges by said charter, by-laws, rules and regulations secured;" and that the deed "is given on condition that the grantee shall devote the premises to the specific purpose for which the cemetery was established, and to no other."

It is argued by counsel for the accused that the effect, if not the object, of this particular provision of the by-law, is to enable the association to arbitrarily control the cutting of the grass, etc., for other reasons than to secure the proper care and management of the burial lots. Such is not its effect, and we have no reason to treat it as passed for that purpose. It may serve, and was presumably intended to serve, the lawful purpose of enabling the association to secure the proper care and management of burial lots. It would not be enforced by our courts under chapter 134 of the Acts of 1903, if it appeared to have been passed to enable the association to accomplish any unlawful or improper purpose.

Possibly a different question would have been presented in this case, had the accused shown that the president or superintendent of the association had arbitrarily refused to permit a lot holder, or one acting under his authority, to cut the grass upon such owner's lot, when such cutting could in no way have affected or interfered with the proper care and management of the cemetery. But that is not the question in this case. It does not appear from the record before us that evidence was offered to prove either that the consent of the president or superintendent was asked for, or that the accused was a lot holder, or acting under the direction of a lot holder; nor does it very satisfactorily appear that evidence was offered to show that herbage was cut within the limits of any burial lot. The finding states that evidence was offered to show that the accused "went upon the cemetery grounds of said association and cut and trimmed herbage growing upon said grounds."

The trial court committed no error in holding that the part of the by-law in question was valid, and that the by-law was lawfully enacted.

There is no error.

In this opinion the other judges concurred.