70 
THE MODERN CEMETERY. 
Power to Take Land in Iowa. 
The township trustees are empowered, in Iowa, 
to condemn or purchase, pay for, and enter upon 
and take, lands, for cemetery purposes, in same 
manner as is provided for incorporated cities and 
towns. The Code also provided that, “When it 
shall be deemed necessary by any such corporation 
to enter upon or take private property for any of 
the above uses, an application in writing shall be 
made to the district court. After such notice has 
been given the court shall proceed to determine the 
compensation to be paid for the taking of the prop- 
erty, and for that purpose shall empanel a jury, and 
the mode of procedure therein shall be the same, so 
far as applicable, as in an action by ordinary pro- 
ceedings.” Construing these enactments, the Su- 
preme Court of that state holds, in the case of Bar- 
rett V. Kemp, recently decided, that it is contem- 
plated that only the question of compensation shall 
be submitted to the jury. It is also clear, it holds, 
that the necessity for the taking of the property is 
a matter which the trustees alone can determine. 
But their determination must be made before the 
court has jurisdiction to act in the matter of ascer- 
taining the compensation to be awarded, and whe- 
ther they have so acted is a matter for the deter- 
mination of the court alone. 
Police Power of States over Burial Grounds. 
The Court of Errors and appeals of New Jersey 
has rendered an important decision in the case of the 
Mayor and Common Council of Newark v. George 
Watson and the Trustees of the Second Presbyter- 
ian Church of that city. It says that all rights are 
held subject to the power of the state over the pub- 
lic health and morals. The power of the legislature 
to restrain or prohibit the use even of private prop- 
erty in a way detrimental to the public health or 
safety is beyond dispute. It being competent for 
the legislature not only to change and modify politi- 
cal districts, but also to dissolve them at pleasure, 
its power to control and extinguish the uses to which 
property may beheld by such political districts, must 
be wider than that which pertains to the property 
of private persons. The rights of the legislature to 
forbid a municipal corporation to appropriate or use 
its lands within corporate limits for burial purposes 
is incontrovertible. Such enactments are not un- 
constitutional, either as impairing the obligation of 
contracts, or taking private property for public use 
without compensation. They are unassailable as an 
exercise of the police power. Whether there is any 
limitation upon this rule as applicable to private 
cemetery companies may present a different ques- 
tion. Moreover the Court holds that the title to 
lands held by the municipal corporation above 
named as plaintiffs in this case, under a grant from 
the proprietors of East New Jersey for burial pur- 
poses, to be appropriated for no other use or uses 
whatsoever, reverted to the proprietors when an or- 
dinance of the municipality and an act of the legis- 
lature prohibited the use of such lands for burial 
purposes. 
Removals from Unpaid For Lots. 
The question has been asked by an Iowa corres- 
pondent if, when a body is buried in a lot that has 
never been paid for, nor a deed given, but the title 
to which is still in him, whether he can legally re- 
move the body to some other lot in the same cem- 
etery, if he so desires. This is a common practice 
in most incorporated cemeteries, and is made a part 
of their agreement in the transfer of lots. But in 
the latter case there is introduced a condition not 
specified in the above question, namely, the exist- 
ence of an agreement, either made with the deceas- 
ed in his lifetime, or with the person having the bu- 
rial of his body in charge, that it may be rem.oved 
to some other location if the lot be not paid for. 
This is, on principle, somewhat like giving the body 
a temporary resting place in a vault awaiting prep- 
arations or determinations for its final interment. 
The question as propounded cannot safely be ans- 
wered, as must already begin to be apparent, by a 
direct affirmative or negative declaration. In a few 
of the states there are statutes which might prevent 
such removals. But the subject is controlled for 
the most part, by what may be called considera- 
tions of sentiment and public policy. Of decisions 
throwing light on the matter there are few; of deci- 
sions right in point, there are none. 
By the civil law of ancient Rome, a body once 
buried could not be removed except by the permis- 
sion, in Rome, of the pontificial college, and in the 
provinces, of the governor. In England, by the 
ecclesiastical law, the whole matter of burial was 
under the direction of the ordinary, and was of ec- 
clesiastical cognizance. And once buried, the bo- 
dy could not be removed without license from the 
ordinary. The courts of common law were left to 
confine themselves to the protection of the monu- 
ment and other external emblems of grief erected 
by the living, and these they guarded with singu- 
lar solicitude. Here is the explanation of Black- 
stone’s statement that, though the heir has a pro- 
perty in the monuments and escutcheons of his an- 
cestors, yet he has none in their ashes; nor can he 
bring any civil action against such as indecently, 
at least not impiously, violate and disturb their re- 
mains, when dead and buried. But there is quite 
an old decision to the effect that though a dead bo- 
dy by law belongs to no one, it is therefore under 
