72 
court’s ruling on it are indicated by tlie 
following language of the Supreme Court : 
“It is also claimed that the duty sought 
to he enforced is conferred by the act of 
1911, concerning civil and legal rights. 
(Laws of 1911, p. :188.) That act declares 
that all persons within the jurisdiction of 
this State shall be entitled to the full and 
equal enjoyment of the accommodations, 
advantages, facilities and privileges of vari- 
ous enumerated places of public accom- 
modation and amusement, including with 
railroads, street cars and other public 
conveyances, funeral hearses, the use of 
which is not involved in this case, and con- 
cluding with the words, ‘all other places 
of public accommodation and amusement.’ 
Cemeteries are not of the same class as 
those places which are enumerated, and 
there is a special provision concerning 
cemeteries, which shows that they were 
not intended to be embraced within the 
description of places of public accommo- 
dation and amusement. That provision is, 
that there shall be no discrimination on 
account of race or color in the price to be 
charged and paid for lots or graves in 
any cemetery or place for burying the 
dead, and that provision would be super- 
fluous if cemeteries were already included 
in the general provision. * * * 
“The refusal to permit the body of rela- 
tor’s wife to be buried in the Forest Home 
Cemetery did not infringe any right of the 
relator under the constitution of this State, 
and he has no right respecting such burial 
under the fourteenth amendment to the 
Federal Constitution, which only applies 
to acts of the State.” 
Two other appellate court decisions bear- 
ing on the subject have come to my atten- 
tion. In both of them it was decided that 
there was a right to bury the remains of 
colored persons in lots which had been 
acquired before any rule against such 
burials was adopted. 
In one of these cases — Commonwealth 
vs. Mount Moriah Cemetery Association, 
81 Pennsylvania State Reports, 23-5 — it ap- 
pears that one Boileau, a white person, 
bought a lot in defendant’s cemetery. 
Without objection of the cemetery authori- 
ties the body of a colored woman was in- 
terred in the lot. About the same time 
Boileau transferred his interest in the lot 
to a Mrs. Jones, a colored woman. But 
the transfer was not registered by the cem- 
etery company, and when Mrs. Jones later 
sought to bury the remains of her hus- 
band in the lot, permission was denied by 
the company, although Boileau expressly 
requested permission for that purpose. In 
the meantime it appears that the cemetery 
management resolved to permit no further 
interment of negroes, responding to a pe- 
tition of white owners of lots. Entering 
an order which required defendant to per- 
mit use of the lot by Mrs. Jones, the 
Pennsylvania Supreme Court said : 
“From this it would appear that the of- 
P ARK AND C EM ETER F. 
fleers of the defendant company were 
moved by a fear of loss which might re- 
sult to the treasury of the corporation. 
But as Boileau has rights in the premises, 
which are not forfeitable to the pecuniary 
interests of the stockholders, we are bound 
to turn a deaf ear to this reason, which 
appears so sound and obvious to these pe- 
titioners. It is said, however, that this 
was but a reasonable exercise of the discre- 
tion of the managers, in view of the gen- 
eral prejudice existing against the colored 
race. 
"In a sound code of ethics this prejudice 
never had a respectable standing, for it 
was but the child of an abnormal servile 
system that was entitled to no man’s re- 
spect outside of the countr\' and laws 
which maintained it. But at this time, 
when the prejudice is under the ban of 
recent constitutional and legal provisions 
expressly designed for its suppression and 
extinction, it is scarcely to be expected 
that we can be induced to endorse its re- 
spectability or to encourage it to linger 
longer around the halls of justice.” 
In the case of 'Walker vs. Richmond 
Cemetery Co., 97 Southwestern Reporter, 
34, the Kentucky Court of Appeals upheld 
the right of plaintiffs to enjoin interfer- 
ence with their interment of their negro 
dead in a lot which had been dedicated to 
that purpose liy a former owner of the 
land before defendant acquired the tract 
embracing the lot. Referring to the com- 
pany’s position in the case, the court said ; 
“Its theory and theme is one of senti- 
ment — that the peace and good order of the 
community require that the two races have 
separate burial places ; that this is the pol- 
icy of the state, as shown by requiring sep- 
arate coaches on railroads, and separate 
schools for the white and colored people. 
This was accomplished by statutes, but 
the general assembly has never enacted any 
statute requiring separate burial places for 
the two races, and this court is powerless 
to prevent any person, either white or 
Idack, from any legitimate and legal use of 
his property, and it has no power to force 
him to accept any price that may be of- 
fered for his property.” 
The closing sentence of the above quoted 
opinion was used in response to a sugges- 
tion that defendant cemetery company had 
offered to pay the owner of the lot in 
question its full value. 
Probably the latest decision bearing on 
this subject was handed down by the 
Louisiana Supreme Court in the case of 
Leathers vs. Odd Fellows’ Rest, 69 South- 
ern Reporter, 858. In that case it ap- 
peared that plaintiff, a white person, owned 
a burial plot in which she intended that 
the remains of herself, her husband and a 
colored servant should repose, “so that 
even in death they should not be sepa- 
rated.” 
The cemetery lot titles were issued on 
the express condition : “The lot of land 
shall not be used for any other purpose 
than as a place of burial for only white 
people and of good character.’’ 
The remains of the colored woman were 
interred one Saturday in the lot, appar- 
ently without the assent of the cemetery 
authorities, and the following Monday 
they were removed by the authorities to a 
neighboring cemetery. Thereupon plain- 
tiff sued for damages and for an order re- 
quiring defendant to restore the body to 
the lot in question. The trial judge found 
that, under the circumstances stated, plain- 
tiff was not entitled to the relief demand- 
ed, and the Supreme Court affirmed the 
judgment on appeal. 
Editor Legal Department : “In e^■ery 
community there live certain classes of 
people whom you desire to have isolated 
from the whites. In the Pacific Northwest 
those special classes are Japanese, Chinese, 
Indians and Negroes. We earnestly de- 
sire to have your candid opinion as to how 
they can be handled in a cemetery prop- 
erty to the best advantage, or whether it 
is best to exclude any of them.’’ — Supt., 
Wash. 
The law editor of Park and Cemetery, 
leaving it to those who have an inti- 
mate knowledge of the non-legal and prac- 
tical aspects of this question to discuss the 
adzisability of adopting cemetery rules 
forbidding burial in a given cemetery of 
persons other than those of the white race, 
expresses an opinion on the purely legal 
side of the subject. 
I know of no decision of an American 
court in which the rights of Japanese, Chi- 
nese or Indians, as distinguished from ne- 
groes, has been involved, but am clearly 
of the opinion that the reasoning of the 
courts above referred to applies with full 
force and equally to all four classes of 
persons. That is, it seems that where a 
lot has been sold at a time when there was 
no race line drawn on interments the cem- 
etery authorities cannot lawfully refuse to 
permit burial in that lot of any member 
of the lotholder’s family or his servants ; 
but that a regulation may be adopted by a 
cemetery company or association to the 
effect that sales of lots will not be made 
to persons of the prohibited classes and 
that as to lots afterwards sold there shall 
be no interment of the remains of any such 
person. According to the court decisions, 
it appears that such regulations are valid 
as to future lot sales, especially where the 
particular cemetery is not organized under 
circumstances making it a sort of public 
service corporation, as where power is con- 
ferred upon it to condemn property in ex- 
tending its grounds. 
But I understand that in the case of the 
ordinary cemetery owned by private per- 
sons, the classes of persons to which the 
cemetery may be thrown open may be lim- 
ited according to the judgment of the gov- 
erning authorities of the cemetery, saving 
full rights to all persons owning lots be- 
fore the limitation is prescribed. 
