Odd Fellows' Cemetery Ass'n v. City & County of San Francisco

This is an action to declare void an ordinance passed by the board of supervisors of the city and county of San Francisco and to enjoin the city and county authorities from enforcing the same by criminal prosecutions against the plaintiffs and others. After the filing of the answer, the court, on motion of the defendants, gave judgment on the pleadings against the plaintiffs, from which the plaintiffs appeal. The determination of the case, therefore, depends on the facts set forth in the complaint, which for the purposes of the decision, and so far as they are properly pleaded and are material, must be taken as true.

The ordinance in question declares that "it shall be unlawful for any person, association, or corporation, from and after the first day of August, 1901, to bury or inter, or cause to be interred or buried, the dead body of any person in any cemetery, graveyard, or other place within the city and county of San Francisco, exclusive of those portions thereof" belonging to the United States. It further provides that any person violating its provisions shall upon conviction be fined not less than one hundred dollars nor more than five hundred dollars, or by imprisonment not exceeding six months, or by both such fine and imprisonment.

The two corporations plaintiff each own a tract of land set apart and dedicated for use as a cemetery, and have been using the same for that purpose for upwards of thirty years. The cemeteries are divided into small lots for sale to private persons, to be used for burial purposes. Many of the lots have been sold and used, and many others have not been sold or used, and are still held by the respective corporations for sale for such purpose. The plaintiff Plageman is the owner of one of the lots in the Odd Fellows' Cemetery, sold to him for burial purposes, and yet capable of having one or more bodies interred therein.

The ordinance in question was manifestly passed in the exercise of the police power given to the city and county by the constitution. Article XI (sec. 11) provides that, "Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws."

The city charter provides (subd. 1, sec. 1, chap. 2, art. II) that "The board of supervisors shall have power: 1. To ordain, make, and enforce within the limits of the city and county allnecessary local, police, sanitary, and other laws and regulations." The insertion of the word "necessary" in the grant of power contained in the charter does not limit or restrict the power given to the city by the constitution. The city charter in municipal affairs is paramount to general laws, but it cannot be superior to the constitution itself, and nothing contained in such a charter can in any way affect a grant of power conferred by the constitution. All the legislative power of the city is by the charter vested in the board of supervisors (art. II, chap. 1, sec. 1). By virtue of this clause the constitutional grant of the police powers of the state to the city goes directly to and vests in the board, which thereby becomes possessed of the right to exercise within the city limits the entire police power of the state, subject only to the control of general laws.

A number of cases are cited by the appellant from other states bearing upon the question of the police powers of cities or towns under special and limited grants contained in their respective charters. Generally speaking, these authorities have no application to the case in hand. The power conferred by the constitution in this respect, subject to the two exceptions, that it is local to the city and that it is subject to general laws, is as broad as that of the legislature itself.

Many cases are also cited upon the proposition contended for by appellant that the power of the board of supervisors to make and enforce police regulations is confined to the regulation or suppression of those things which the law declares to be nuisances in themselves, and that it is not within the power of the board to declare an act or a thing a nuisance which is not so in fact or has not been declared to be such by the decision of some court acting with reference to the particular act or thing. Neither of these cases is authority in this state under the police power granted by the constitution. The exercise of this power is not limited to the regulation of such things as have already become nuisances or have been declared to be such by the judgment of a court. "The power to regulate or prohibit conferred upon the board of supervisors not only includes nuisances, but extends to everything expedient for the preservation of the public health, and the prevention of contagious diseases." (Exparte Shrader, 33 Cal. 284.) This was said with reference to a health regulation. The power, however, includes the right to make regulations concerning other things besides those pertaining to health. The decisions of this court show that ordinances have been upheld in many cases prohibiting things which could not be said to be nuisances per se, and which had not been declared to be such by any court. As instances of the exercise of such powers, it has been held that it includes the right to prohibit slaughter-houses, the feeding of swill-slop to cows, the throwing of rubbish, garbage, etc., except in certain designated places, the keeping of more than two cows within certain limits, the erection of wooden buildings, and the maintenance of carpet-beating establishments. (Ex parte Shrader, 33 Cal. 284;Johnson v. Simonton, 43 Cal. 242; Ex parte Casinello, 62 Cal. 538; Ex parte Heilbron, 65 Cal. 609; Ex parte Fiske, 72 Cal. 125;In re Linehan, 72 Cal. 114; McCloskey v. Kreling, 76 Cal. 511; Exparte Lacey, 108 Cal. 326.¹) Whenever a thing or act is of such a nature that it may become a nuisance, or may be injurious to the public health, if not suppressed or regulated, the legislative body may, in the exercise of its police powers, make and enforce ordinances to regulate or prohibit such act or thing, although it may never have been offensive or injurious in the past. It is well settled that cemeteries in cities are subject to regulation or suppression by the exercise of these police powers. (People v. Pratt, 129 N.Y. 68; Presbyterian Church v. Mayor etc., 5 Cow. 538; Coates v.Mayor etc., 7 Cow. 585; Kincaid's Appeal, 66 Pa. St. 411;¹ Sohierv. Trinity Church, 109 Mass. 22; City Council v. Wentworth-StreetBaptist Church, 4 Strob. 309; Humphreys v. Front-Street Methodistetc. Church, 109 N.C. 132.)

We do not think the ordinance in question is in conflict with any general law. The provisions of the act of 1859 for the incorporation of rural cemetery associations (Stats. 1859, 281), which are substantially re-enacted in sections 608 to 616 of the Civil Code, are cited as general laws conflicting with this ordinance. Section 4 of the act and section 608 of the Civil Code give such corporations power to take and hold, within the county, lands not exceeding three hundred and twenty acres in extent, to be held and occupied exclusively for cemeteries. This is a grant of power to such corporations to own property, and the limitation of the amount that may be acquired, and of the uses to which such property may be devoted.

There is nothing in these laws purporting to be an exercise of the police power of the state with respect to the public health, safety, or comfort. They were manifestly not intended to operate upon, or in any manner restrict, the authority of municipal corporations, in the exercise of police power, to regulate and control the location and maintenance of cemeteries. They were simply designed to enable persons to associate themselves together as corporations, and by that means, and in the mode prescribed by the law, to do what might have been done by them as individuals without becoming subject to the restrictions contained in the law. It is not to be supposed that it was intended that these corporations should have greater privileges than natural persons, and be free from control by police regulations designed to preserve public health and promote the general welfare.

Neither is there anything in the Penal Code which materially conflicts with, or prevents the enforcement of, the ordinance. Section 292 merely declares that the duty of burial of the body of a deceased person devolves upon the persons therein specified. Section 297 forbids the burial of a body within San Francisco, except in some cemetery already existing under the laws of the state or thereafter established by the board of supervisors. This is a negative provision, and does not by inference confer the right to bury in the excepted cemeteries. That right was pre-existing, but was subject to be taken away by police regulations, and remained subject to that condition after the enactment of section 297 to the same extent as before. So far as the ordinance forbids burials outside of those cemeteries, it is in strict accord with section 297; and so far as it forbids burials within those cemeteries, it is not in conflict, for that section gives no right to do that and makes no provision relating thereto. It may be that the law supersedes the ordinance, so far as the territory embraced is the same in both, and that the ordinance is to that extent inoperative. If so, the only result will be that for the offense of burial in any place other than an established cemetery, the prosecution and punishment must be under the state law, and for a burial within such cemeteries, it must be under the ordinance which as to such territory is in force and effect. The slight difference in the punishment provided is, in view of this result, entirely immaterial.

It is contended by the appellants that while it may be true that cemeteries are subject to regulation by the police power, still it is a cardinal principle applicable to such powers that any given exercise of them must be reasonable under all the circumstances appearing in the case. There are some allegations in the complaint intended to show that this particular ordinance is unreasonable. It is well settled, however, that, except where the court can see, in the light of facts properly brought to its knowledge, that a given police regulation has no just relation to the object which it purports to carry out, and no reasonable tendency to preserve or protect the public safety, health, comfort, or morals, the decision of the legislative body as to the necessity or reasonableness of the regulation in question is conclusive. (Commonwealth v. Alger, 7 Cush. 104; Ex parte Andrews, 18 Cal. 679; Ex parte Shrader,33 Cal. 284; Johnson v. Simonton, 43 Cal. 242; In re Linehan,72 Cal. 114; Ex parte Cheney, 90 Cal. 617; Ex parte Tuttle, 91 Cal. 589; Vanderhurst v. Tholcke, 113 Cal. 147.) The complaint alleges that within the limits of the city are many large tracts of vacant land of more than three thousand acres each, and aggregating more than sixty thousand acres, not contiguous to dwellings, and remote from the thickly inhabited parts of the city, which are adapted for use as cemeteries. Notwithstanding these allegations, the court is bound to take judicial notice of the fact that the entire area of the city and county of San Francisco is only twenty-six thousand, seven hundred and twenty acres; that a large part of this area is already covered with buildings, that the city is rapidly increasing in population, and that the cemeteries in question are in the midst of the city and surrounded by dwellings. Also, the court knows that the general law has, for nearly thirty years past, prohibited, and does now prohibit, burials in the city and county, except in cemeteries now established. The ordinance in question, in its practical application, does no more than prohibit burials within those cemeteries. Other facts and circumstances may exist bearing on the subject. It has been said that if there is a doubt as to the unreasonableness of an ordinance, "the fact that this doubt exists is sufficient reason for the court to decline to adjudge the ordinance invalid." (In re Wilshire, 103 Fed. 620.) The court, therefore, cannot say as matter of law that the conditions are not such as to make it reasonable to prohibit the further burial of the dead within the city limits. In the enactment of police regulations the legislative body is not confined to present conditions alone, but may look to the future and make such provisions as may be reasonably expected to be necessary to promote and preserve the public health and welfare in the immediate growth and progress of the city.

It was intimated in the case of Los Angeles County v. HollywoodCemetery Assn., 124 Cal. 344,¹ that an ordinance of Los Angeles County, forbidding under certain conditions the establishment of cemeteries anywhere within the limits of that county, was not reasonable. This case, however, is no precedent for the one now before the court. The county of Los Angeles is one of the largest counties of the state, and has within its limits many square miles of territory which are not only not thickly populated, but in which there are scarcely any inhabitants at all. It might be that an ordinance forbidding the establishment of cemeteries within such thinly populated districts as many portions of that county are known to be would be held to be unreasonable, but as to this we express no opinion. San Francisco, as we have seen, is in most particulars affecting the question, the very opposite of many portions of Los Angeles County. The case of Wygant v. McLauchlan, 39 Or. 429, is cited to the point that this ordinance is unreasonable in this respect. It is sufficient to say that we disapprove of that case so far as it seems to hold that a court should declare an ordinance forbidding cemeteries in a city unreasonable wherever it appears that there are vacant tracts of land several hundred acres in extent within the city limits on which cemeteries could be established. Each case of this character must depend largely on its own special circumstances. There are many other facts and circumstances which may have affected the legislative judgment as to the advisability of such an ordinance, and the court cannot say that they did not exist in the case at bar.

It is settled law that all property is held subject to the exercise of police power, and that the provisions of the constitution forbidding laws impairing the obligations of contracts, and declaring that property shall not be taken without due process of law, have no application in such cases. (Butchers'Union etc. Co. v. Crescent City etc. Co., 111 U.S. 746;Fertilizing Co. v. Hyde Park, 97 U.S. 659; New Orleans GaslightCo. v. Louisiana Light etc. Co., 115 U.S. 672; Barbier v.Connolly, 113 U.S. 27; Walla Walla v. Walla Walla Water Co.,172 U.S. 1; Boyd v. Alabama, 94 U.S. 645; Louisville Gas Co. v.Citizens' Gas Co., 115 U.S. 699; Ex parte Lacey, 108 Cal. 326.¹) There is no ground upon which we can hold the ordinance in question to be invalid.

It is alleged that the ordinance was passed for private purposes and from improper motives. There is nothing on the face of the ordinance to show this, and no inquiry or proof of extraneous facts to show the motive impelling the legislative body to pass an ordinance can be allowed. (Soon Hing v. Crowley,113 U.S. 703; Cooley on Constitutional Limitations, 6th ed., 220.)

Counsel on both sides have also discussed at great length and with much learning and ability the question whether or not, conceding the ordinance to be invalid, a court of equity will entertain an action to enjoin a municipal corporation from enforcing ordinances prescribing punishment for misdemeanors. As we have reached the conclusion that the ordinance in question is a valid exercise of the police power, it follows that it will not be necessary to consider this question.

It is therefore ordered that the judgment be affirmed.

McFarland, J., Angellotti, J., and Lorigan, J., concurred.

¹ 49 Am. St. Rep. 93.

¹ 5 Am. Rep. 377.

¹ 71 Am. St. Rep. 75.

¹ 49 Am. St. Rep. 93.