

\. . . ' \ \' 



COMPETING WITH ^ 

 CEMETERY COMPANIES 



The Review of June 22, in reply to an inquiry about cemetery associ- 

 ations that enter into competition with florists, stated briefly the essential 

 facts to he considered. The present article, with its comprehensive treat- , 

 ment of the points at issue, was written for The Review by an attorney who 

 has made a search of the authorities. 



S A CEMETERY associa- 

 tion legally entitled to 

 engage in the florists* 

 business, either as a part 

 of the cemetery manage- 

 ment, refusing outside flo- 

 rists permission to do 

 work for lot owners in the 

 cemetery, or in competi- 

 tion generally with flo- 

 rists outside the cemetery? Under the 

 authoritative court decisions which I 

 review below, I reach an opinion that, 

 as a general rule, a cemetery associa- 

 tion may monopolize the floral patron- 

 age of its cemetery, so far as is reason- 

 ably necessary to secure a uniform 

 scheme of ornamentation, provided 

 there be no ^mjust discrimination, no ex- 

 tortionate charges under the monopoly, 

 and nothing in contracts, express or im- 

 plied, with the lot owners requiring a 

 contrary conclusion. 



Limits of Cemetery's Bights. 



But so long as lot owners are per- 

 mitted to do their own planting, I doubt 

 the validity of a regulation purporting 

 to prevent them from having it done 

 by outside florists, conformably to any 

 fixed plan of ornamentation 

 adopted by the cemetery 

 authorities. 



And, under the law cited 

 below, I am equally clear 

 in opinion that unless a 

 cemetery association's char- 

 ter expressly authorizes it 

 to engage in the florists' 

 business generally, it is not 

 entitled to engage in trade 

 outside the cemetery, ex- 

 cept, possibly, for the pur- 

 pose of disposing of sur- 

 plus stock grown in good 

 faith for use in the ceme- 

 tery but left on hand. 



If there are eases where 

 the laws and charter under 

 which a cemetery associa- 

 tion exists are broad 

 enough to authorize it to 

 engage in the distinct pur- 

 suits of furnishing pjfices 

 for the burial of the dead 

 an^ of conducting a gen- 

 eral florists' establishment, 

 I show below that they 

 should not be permitted to 

 slip by the tax assessor, so 

 far as concerns property 

 devoted solely to the last 

 named business. 



The right of a cemetery 



association to monopolize the work of 

 floral ornamentation of graves and lots 

 first raises question as to the nature 

 and extent of the title and control of 

 lot owners. That title to a burial lot 

 is not absolute in the sense in which 

 ordinary real estate may be so held, all 

 the courts agree. The owner may 

 make burials in the lot, and courts will 

 award him relief against desecration of 

 the ground, but the judicial authorities 

 show that cemetery authorities have 

 broad powers to regulat? the use of 

 lots — not arbitrary powers, but a dis- 

 cretion to be exercised in the interest 

 of the public at large. 



The Bights of Lot Owners. 



In an early case, the Massachusetts 

 Supreme Judicial court declared that 

 the right of lot owners after burial of 

 their dead is * ' limited to acts of preser- 

 vation and embellishment; and even 

 these must in some degree be restricted 

 by the opinTon of those who represent 

 the general taste and feeling of the 

 community." (Commonwealth vs. Viall, 

 2 Allen Reports, 515.) 



The leading case here pertinent 

 seems to be that of Cedar Hill Ceme- 



RIGHTS OF CEMETERY- 



In order to maintain a uniform scheme of decoration, a 

 cemetery association has a right to control the planting 

 on its grounds, and hence may sometimes be legally 

 sustained in excluding the work of outside florists. 



WHEN CEMETERY EXCEEDS RI6HTS- 



If a cemetery permits lot owners to do their own plant- 

 ing, but at the same time prohibits them from engaging 

 outside florists to do the work, such procedure is incon- 

 sistent and probably would hot be upheld by the courts. 



A cemetery usually is not entitled to engage in outside 

 trade in competition with florists, except, possibly, to 

 dispose of surplus stock. 



If a cemetery is allowed, by its charter and the k)cal 

 laws, to sell stock in the public markets, it should not 

 escape the payment of taxes on such parts of its prop- 

 erty as are used in such competitive trade. 



THE LEGAL REMEDY- 



When a cemetery exceeds its legal rights, to the detri- 

 ment of the florists in the vicinity, they may protect 

 themselves, individually or collectively, by an appeal to 

 r. the courts, bringing suit as a taxpayer or in the name 

 of a lot owner. 



tery Co. vs. Lees, 22 Pennsylvania Su- 

 perior Court Reports, 405. It appeared 

 that the company had adopted the fol- 

 lowing regulation: 



"To prevent confusion from the in- 

 troduction of a variety of workmen, 

 the trustees have made arrangements 

 to have all the excavating, as well as 

 the building of foundations for en- 

 closures and for monuments, the sod- 

 ding of lots and graves and cutting of 

 grass, planting of flowers, shrubbery, 

 and trimming of the same, etc., per- 

 formed under the direction of the su- 

 perintendent at moderate prices." 



A gardener employed by lot owners 

 was given two or three months' no- 

 tice that after the first of the next 

 year he would not be permitted to con- 

 tinue to trim lots in the cemetery, and 

 the suit was brought to test the valid- 

 ity of the regulation above quoted. 



A Fixed Scheme of Imi>royement. 



The court sustained the rule, in 

 the following language, which has 

 strong application to the right to ex- 

 clude outside florists, since floral orna- 

 mentation enters upon any scheme of 

 improvement to a more important de- 

 gree than mere trimming 

 of grass: 



* * Ordinarily, a cemetery 

 is laid out and planned ac- 

 cording to a fixed scheme 

 as to improvement, ♦ • • 

 thch character of trees and 

 shrAbery to be planted, 

 and ornamentation in gen- 

 eral. Anything which in- 

 terferes with this general 

 scheme is not only detri- 

 mental and injurious to the 

 scheme itself, but to every 

 lot which enters into the 

 combination. It is of the 

 first importance, therefore, 

 that the association should 

 assume and retain the ab- 

 solute control, as is subject 

 to be done in and by the 

 deeds of conveyance and 

 by the by-laws and regula- 

 tions of the plaintiff com- 

 pany, of the erection of 

 monuments and partitions 

 between lots, the planting 

 of trees and shrubbery and 

 the general subject of orna- 

 mentation. This, in the na- 

 ture of the case, can be 

 done ^ly under the super- 

 vision 01 one person, and 

 in this case that person is ' 



