PARK AND CEMKTERY 
436 
Ordinance ProHibitin^ Bxirials 
In the Circuit Court of the United States for the Northern 
District of California the Hon. William H. Hunt, U. S. 
District Judge, recently rendered a decision in the long dis 
puted ordinance of the San Francisco authorities, which pro- 
hibited further interments in the city cemeteries. The city 
of San Francisco comprises also the county and hence in- 
cludes territory quite beyond the actual city limits. The 
■complainant in the suit was Bessie Hume, a widow and lot- 
owner in Laurel Hill Cemetery, and the defendants the Laurel 
Hill Cemetery, the Municipal Corporation, Board of Super- 
visors, Board of Health, and the Mayor of the City and 
County, individually and collectively. The opinion was ren- 
dered on the demurrer to the complainant’s bill. The action 
was brought to secure an injunction to enjoin the defendants, 
during the pendency of the suit and until further order of 
the court, from enforcing the ordinance prohibiting burials 
in the city cemeteries. The complainant’s bill gave a history' 
■of the cemetery from April i8, 1859, when the legislature 
of the state passed an act authorizing the incorporation of 
rural cemetery associations, which is still in force, to the 
time of the formation of the Laurel Hill Cemetery Associa- 
tion, April II, 1867; on through the changes and improve- 
ments of the property up to the time of the 'passage of the 
ordinance in question, which was voted March 26, 1900, to 
take effect on and after August i, 1901. The bill gave full 
details of the various legal questions involved in the ceme- 
tery’s existence and development, the money expended, the 
interments, area, and conditions governing lot-owners’ rights 
and perquisites under the constitution and local enactments. 
Further claims in the bill were : no public streets have been 
•opened into or through the tract ; all taxes have been paid, 
and all regulations and requirements observed. At no time 
have any objectionable features as to burials been permitted, 
nor has there ever been any remote possibility of injury to 
the health of the community from the location of the ceme- 
tery. The complainant averred that under all the circum- 
stances the ordinance was unreasonable and deprived her of 
inalienable rights in her cemetery property. It was further 
alleged that interments were permitted until November 13, 
1903, but after that day forbidden. 
In his decision the judge held that the vital question was 
whether the ordinance under question was valid, not upon 
the grounds of defendant’s counsel that the face of the ordi- 
nance must determine it, nor that the courts have no juris- 
diction to enquire into the reasonableness of the acts of a 
board of supervisors, but there are limitations to the valid 
■exercise of the police power, and the courts will pass upon 
in San Francisco Held Invalid. 
the constitutionality of legislative acts and declare them void 
if clearly unreasonable, or in conflict with fundamental law. 
It is not only the right but also the duty of the judiciary so 
to do. 
The ordinance prohibits the burial of bodies not only in 
parts of the city thickly inhabited, but throughout the county, 
and does not attempt to regulate such burials with a view to 
conserve the public health, but declares that the burial of 
dead bodies within the city and county of San Francisco is 
dangerous to life and detrimental to public health. By its 
mere order the local authority seeks to prevent the further 
use of quantities of valuable property, notwithstanding the 
fact that the use of the same has been heretofore legitimate, 
even essential in its nature to civilization. Facts in the bill 
of complaint justifies this statement and further proves that 
Laurel Hill Cemetery is not now, never has been, and never 
will become, a nuisance within the riieaning of the Civil 
Code of California. An ordinance which arbitrarily prohibits 
the burial of bodies within an entire county embracing large 
tracts of land unoccupied and remote from human habita- 
tion, where the public health and safety could not possible be 
endangered, is clearly unreasonable and void. 
It has become a well established principle that municipal 
police ordinances, like all other municipal ordinances, must 
be reasonable in order to be lawful. The court discussed 
the questions of municipal regulation of public nuisances, 
the interference with legitimate business by unreasonable 
ordinances, and of property rights, quoting many authorities 
for his ruling that the courts have the power to investigate 
such municipal enactments upon complaint. The court con- 
cluded his ruling as follows ; I fully recognize that between 
the broad principles applicable in the necessary maintenance 
of rights of the board properly comprehended within authority 
to exercise police power, and those rights which are guaran- 
teed to the individual by fundamental law, decision is difficult. 
But upon careful reflection, my judgment is that the com- 
plainant has made a showing of such strength that the 
court must hold the ordinance in question to be oppressive 
and unreasonable, and that it infringes without warrant upon 
the right of the Laurel Hill Cemetery Association to carry 
on a lawful business. 
It follows that by reason of the refusal of the Association 
to allow complainant to bury the body she wishes to, such 
refusal being based upon the ordinance, her rights have been 
invaded ; wherefore the ordinance is void, and complainant 
is entitled to the relief she asks. The demurrer is therefore 
overruled. 
lA 
