134 
THE MODERN CEMETERY. 
over gentle slopes, or over hill and dale, may be 
considered the stage whereon the picture maker is 
to group and arrange his living figures, place his 
colors and plan for his masses of light and shade. 
It is magnificent work; it is the fundamental 
art; it was practiced in the garden of Eden, and a 
garden is still the synonym of Paradise. 
Fanny Copley Seavey. 
Rights of Owners of Cemetery Lots. 
In the case of Ritchey v. City of Canton, reported 
in volume 46 of the Illinois Appellate Court Re- 
ports, a decision of interest is rendered. A Mrs. 
Almeda Rush acquired by deed the title to a lot in 
the Canton Cemetery. Afterwards the Canton ceme- 
tery company conveyed all of its cemetery property 
to the city of Canton in trust for burial purposes. 
After such conveyance, the city passed an ordi- 
nance providing that no grave should be made in 
the cemetery, except by permission and under the 
direction of the sexton appointed by the city, un- 
der penalty. Subsequently, Mrs. Rush requested 
a Mr. Ritchey to go upon her lot and dig a grave 
for the burial of her daughter, which he did without 
permission of the city sexton, and, in fact, against 
the will of the sexton, who claimed the right to dig 
the grave. This action was then brought to recover 
from him the penalty prescribed for violation of the 
ordinance referred to. It was not contended that in 
preparing the grave he violated any other of the 
provisions or failed to observe any other of the re- 
quirements of the ordinances of the city relating to 
the cemetery, excepting the one prohibiting the dig- 
ging of a grave in the cemetery without the permis- 
sion, or under the direction, of the sexton. In the 
circuit court he was fined $i and costs. The ap- 
pellate court reverses that judgment. The court in 
discussing the rights of the owner of the lot in ques- 
tion, says that though she held by title in fee sim- 
ple, the lot was subject to the exercise on the part 
of the city of that inherent and plenary power rest- 
ing in the state, and by the state delegated to the 
city, to prohibit all things hurtful to the comfort, 
safety, and welfare of the inhabitants of the city. 
But the power of the city to regulate by ordinance 
the use and the manner of use of the burial lots by 
persons purchasing from the city after the adoption 
of such ordinance would not apply to her lot; ex- 
cept to the extent that the provisions of the ordi- 
nance were directed to the protection of the health, 
comfort, safety and welfare of the public. The lot 
was her property, with all the title and rights of 
fee simple ownership of cemetery lots located within 
the limits of a city. One of these rights was the 
privilege of interring therein the bodies of her dead 
by her own hand, if she liked, or by the hand of 
such sympathetic neighbors or friends as might vol- 
unteer their service, or by whom she might employ 
for that purpose. The city might, by ordinance, es- 
tablish such regulations concerning the manner of 
digging the grave, its depth, etc., and the interment, 
as were reasonable in their character and necessary 
for the protection of the public health and welfare, 
and she or those who made the grave for her must 
conform to such regulations. It is to be understood 
that what is said is different in principle from a case 
between a city and a person who purchases a burial 
lot or burial rights in a lot from the city after the 
passage of such an ordinance. 
Unconstitutional Local Legislation. 
A decision of unusual significance, setting forth 
an important principle of wide application, although 
rendered by a court of inferior jurisdiction is that 
of the Court of Common Pleas, No. 4, of Philadel- 
phia, in the case of the City of Philadelphia v. The 
Westminster Cemetery Co., holding unconstitu- 
tional a statute providing that it shall be unlawful to 
(“hereafter”) establish any cemetery upon lands lo- 
cated within one mile from any city of the first-class, 
the drainage from which empties or passes into any 
stream from which any portion of the water supply 
for such city is obtained. Such is the Pennsylvania 
Act of June 8, 1891. The bill filed by the city in 
this case averred that the Westminster Cemetery 
Co., had purchased land and established a cemetery 
within one mile of the city of Philadelphia, and that 
the surface drainage therefrom emptied into the 
Schuykill. The objection that this particular Penn- 
sylvania statute is defective on account of its title 
not being expressive enough, the court over-rules as 
unavailable. And the further objection that this 
statute violates the (Pennsylvania) constitutional 
inhibition against any local law relating to ceme- 
teries, grave-yards, or public grounds, not of the 
.state, is over-ruled on the ground that the statute 
does not in anywise “regulate” cemetery compan- 
ies. But the court holds that the statute offends 
against the constitution in that it is local legislation 
relating to a belt of land around cities of the first- 
class. What particular municipal function, attri- 
bute, or power, this may be referred to, the court 
says it does not see. It relates neither to the offi- 
cers of a city of the first-class, or their duties, or 
powers, or any municipal purpose. It makes a belt 
around such cities in adjoining territory by a local, 
narrow, and arbitrary law. Cemeteries now exist- 
ing in the city, or within a mile of it, or which may 
hereafter be located more than a mile off, or even, 
within the city, are not under the ban of the law. 
Such legislation cannot be upheld as constitutional. 
If it is attempted to sustain the Act as a police regu- 
lation, it must be remembered that of all laws, those 
relating to police powers, must be general, and can- 
not be parceled out in belts of territory. 
