289 
PARK AND CEMETERY. 
VIEW FROM LAUREL HILL AVENUE. 
Laurel Hill Cemetery, San Francisco. 
some of them containing several hun- 
dred acres, in several of which inter- 
ments could be made more than a mile 
distant from any inhabitant or high- 
way. The ordinance in question be- 
gins with a recital that “the burial of 
the dead within the city and couyty of 
San Francisco is dangerous to life and 
detrimental to the public health,” and 
goes on to forbid .such burial under a 
penalty of fine, imprisonment, or both. 
The complaint sets up that it violates 
Article 1, Section 8, and the Four- 
teenth Amendment of the 'Constitu- 
tion of the United States. 
The answer denied some of the 
above statements on the ground of 
ignorance, and categorically denied 
the averment as to the large vacant 
tracts available for burying within the 
city. The defendants moved for judg- 
ment on the pleadings, the notice 
showing the ground to be that the 
complaint did not state a cause of ac- 
tion, but going on to say that the 
motion would be made upon all the 
papers on file. The motion was 
granted and an exception to the judg- 
ment was affirmed by the Supreme 
Court of the state. 152 Cal. 464. As 
the state court and the arguments be- 
fore us assumed the material allega- 
tions of the complaint to be true, we 
shall assume that the judgment was 
ordered upon the complaint without 
regard to the denials in the answer, 
although it was then on file. 
The only question that needs to be 
answered, if not the only one before 
us, is whether the plaintiff’s property 
is taken contrary to the Fourteenth 
Amendment. In considering it, the 
allegations as to the large tracts avail- 
able for burying purposes may be laid 
on one side. The plaintiff has no 
grievance with regard to them. The 
Winnebago, 205 U. S. 354, 360. More- 
over, it is said bj' the Supreme Court 
of the state that burial within the 
San Francisco city or county limits 
already was forbidden bj^ statute, ex- 
cept in existing cemeteries or such as 
might.be established by the Board of 
Supervisors. The Board of Super- 
visors passed the ordinance now com- 
plained of; so that, as pointed out by 
the court, the ordinance in effect 
merely prohibited burials in existing 
cemeteries. It was, therefore, a spe- 
cific determination by the lawmaking 
authoritc' as to the relation of those 
cemeteries to their respective neigh- 
borhoods, and the question is whether 
the court can say that it was wrong. 
To aid its contention and in sup- 
port of the averment that its ceme- 
tery, although now bordered by many 
dwellings, is in no way harmful, the 
plaintiff refers to opinions of scien- 
tific men who have maintained that 
the popular belief is a superstition. Of 
these we are asked, by implication, to 
take judicial notice, to adopt them, 
and on the strength of our acceptance 
to declare the foundation of the ordi- 
nance a mistake and the ordinance 
void. It may be, in a matter of this 
kind, where the finding of fact is 
merely a premise to la3’'ing down a 
rule of law, that this court has power 
to form its own judgment without the 
aid of a jure'. Prentis v. Atlantic 
Coast Line, 211 U. S. 310, 227. But 
whatever the tribunal, in questions of 
this kind, great caution must be used 
in overruling the decision of the local 
authorities, or in allowing it to be 
overruled. No doubt this court has 
gone a certain distance in that direc- 
tion. Dobbins v. Los Angeles, 195 
U. S. 222. Lochner v. New York, 198 
U. S. 45, 58, et seq. But it has ex- 
pressed through the mouth of the 
same judge who delivered the judg- 
ment in the ca.se last cited the great 
reluctance that it feels to interfere 
with the deliberate decisions of the 
highest court of the state whose peo- 
ple are directly concerned. Welch v. 
Swasejq 214 LT. S. 91, 1906. The re- 
luctance must be tedoubled when as 
here the opinion of that court con- 
firms a specific determination con- 
cerning the same spot previoush- 
reached by the body that made the 
law. See French v. Barber Asphalt 
Paving Co., 181 U. S. 324, 341; Smith 
V, Worcester, 183 Mass. 232, 234, 235. 
But the proprietj" of deferring a 
good deal to the tribunals on the spot 
LODGE AND OFFICE, LAUREL HILL CEMETERY, SAN FRANCISCO. 
C. E. Kenger, Supt. 
