202 
PARK AND CEMETERY. 
COURT DECISIONS ON PROHIBITING INTERMENTS 
(Continued.) 
II. 
Counsel for appellants present a counter 
contention to that presented by counsel for 
respondents in the preceding paragraph of 
this opinion, namely ; although it be con- 
ceded that the legislature of the state might 
have the power and authority to enact a 
valid law prohibiting the Union Cemetery 
from burying dead bodies therein, neverthe- 
less, Kansas City had no such authority 
under special provisions of her charter or 
under the general welfare clause thereof, 
and therefore the ordinance complained of 
is null and void. 
The special charter provisions so far as 
they are material and relied upon by coun- 
sel for respondents, are as follows : 
“The municipal corporation known as 
Kansas City, * * * may exercise all 
municipal, incidental and business powers 
necessary or which may be deemed expedi- 
ent and necessary to maintain the public 
peace, protect property and promote the 
public welfare, and preserve the health of 
the inhabitants of the city, whether such 
powers be expressly enumerated herein or 
not ; and may have and exercise within the 
city limits * * * all governmental and 
police powers, subject to the limitations 
prescribed by the constitution and laws of 
this state and the United States.” 
Charter of 1909, Article 1, Section 1, 
paragraph 13. 
“* * * The mayor and common coun- 
cil shall have power and authority, by or- 
diance * * * to secure the general 
health and safety of the inhabitants by any 
necessary measure, * * * to declare, 
prevent and abate nuisances on public or 
private property, and the causes thereof.” 
Charter 1909, Art. 3, Sec. 1, paragraph 16. 
“* * * The common council shall have 
power to pass, publish, amend and repeal 
all such ordinances, rules and regulations 
not inconsistent with the provisions of this 
charter or contrary to the laws of the state 
or of the United States as it may deem 
to be expedient or necessary in maintain- 
ing the peace, order, good government, 
health and welfare of the city, its trade, 
commerce, manufactures, or that may be 
necessary and proper to carry into effect 
the provisions of this charter.” 
Charter of 1909, Art. 3, Sec. 1, paragraph 
41. 
If it were not conceded that Union Ceme- 
tery was in point of fact a nuisance and 
detrimental to public health, then under 
the far-reaching grants of power con- 
ferred upon Kansas City by these charter 
provisions, it would be difficult to conceive 
upon what solid ground this contention 
could rest. 
Those provisions in express terms auth- 
orize that city to exercise all municipal 
power “necessary to promote the public 
welfare, and preserve the health of the 
inhabitants of the city ;” that by ordinance 
the city shall have authority * * * to 
secure the general health and safety of the 
inhabitants * * * to declare, prevent 
and abate nuisances on public or private 
property,” etc., and the “common council 
shall have power to pass, publish, amend 
and repeal all ordinances * * * as it 
may deem to be expedient or necessary in 
maintaining the peace, order, good govern- 
ment, health and welfare of the city,” etc. 
The language of these provisions is so 
plain and definite in meaning that they are 
not susceptible of construction. 
They simply mean what they say, that 
the city has the power and authority to 
abate any nuisance or do anything within 
its corporate capacity to preserve the health 
and welfare of the city. This would clearly 
authorize the passage of the ordinance in 
question, and it has been so held in numer- 
ous cases. 
Campbell v. City of Kansas, 102 Mo., 326, 
244, 350, 10 L. R. A. 593, 13 S. W. 897; 
Laurel Hill Cemetery v. San Francisco, 
152 Cal., 464, 93 Pac., 70, 14 A. & E. An. 
Cas, 1080, 27 L. R. A. (N. S.) 260: 
Affirmed in 
Laurel Hill Cem. v San Francisco, 216 
U, S., 358, 54 L. Ed., 515; Odd Fellows 
Cem. v. Same, 140 Cal., 226, 73 Pac., 987 ; 
Kincaid's appeal, 66 Pa. St. 411, 423; Peo- 
ple ex rel, Cem. Assn. v. Pratt, 129 N. Y., 
68, 72, 29, N. E., 7; Coates (Stuyesant) v. 
New York, 7 Cow., 588, 604; Young v. 
Board of Comrs., 51 Fed., 585, 592. 
Also see : 
Board of Commissioners v. Yound, 59 
Fed. 96, 1, c. 109; Charleston v. Baptist 
Church, 4 Strob. L. (S. C.) 306, 1 c, 310; 
Commonwealth v. Fahey, 5 Cash (Mass.) 
408, 1 c. 132; Page v. Symonds, 63 N. H. 
17 1 c. 20; Craig v. Pres. Church, 88 Pa. 
St. 42, 1 c. 52. 
In addition to this, the general welfare 
clause of the charter which is practically 
the same in all the charters of the cities 
of this state, was ample authority to the 
council to pass said ordinance. 
St. Louis Gunning Company v. St. Louis 
235 Mo. 99. 
Council for plaintiffs concede that this 
ruling might be sound if it was not for the 
fact that the charter of the Union Ceme- 
tery is an Act of the legislature, and that 
according to the express provisions of 
paragraph 41 of section 1 of article 3 of the 
charter of 1909, before quoted, where it is 
expressly provided that “the common coun- 
cil shall have power to pass, publish, amend 
and repeal all such ordinances, rules and reg- 
ulations not consistent with the provisions 
of this charter or contrary to the latvs of 
the state or of the United States as it may 
deem to be expedient or necessary in main- 
taining the peace, order, good government, 
health and welfare of the city.” 
That being true, it is argued that in or- 
def to repeal the charter of the Union 
Cemetery, the ordinance in question must 
of necessity be inconsistent with and con- 
trary to the provisions thereof, which as 
shown is an act of the legislature, or a 
law of the state. And being so inconsistent 
with and contrary to said law of the state, 
it is contended that under said provision 
of the city charter, the ordinance and not 
the charter of the Union Cemetery, which 
is an act of the legislature, or a law of 
the state, must yield and give way. 
This argument is more plausible than 
sound, for while it is true the charter of 
the Union Cemetery is a special act of the 
legislature, yet it has no more force and 
effect than if it had been incorporated un- 
der the general corporation laws of the 
state, and if burials could by ordinance 
have been prohibited in the latter case, then 
I am unable to see any good reason for 
holding that it could not have been prohib- 
ited in the former. 
The courts consider the substance and 
not the letter of the law, when enforcing 
its provisions. By abating the nuisance, if 
one it is, the charter of the cemetery is 
not repealed, but the further burial of dead 
bodies therein is prohibited, because of 
the changed conditions of things ; that 
which was formerly harmless has become 
dangerous to the public health of the city. 
This is but the exercise of the police 
power which neither the city or state can 
surrender or bargain away. 
All the authorities so hold. 
St. Louis Gunning Co. v. St. Louis, 
Supra.; Mugler v. Kansas 123 U. S. 623; 
Slaughter House Cases, 111 U. S. 746. 
Nor can either of them preclude itself 
from enacting laws forbidding burials in 
places when they constitute a public nui- 
sance. 
Rrick Pres. Church v. New York, 5 Cow. 
538. 
Board of Commissioners v. Young, 59 
Fed. 96. 
We are, therefore, of the opinion that 
this contention of plaintiffs is not well 
taken. 
III. 
Returning to the question previously 
stated : Is the ordinance complained of 
reasonable? That is, was it enacted for 
the preservation of the public health of 
Kansas City? 
We have with great care and with much 
pains read the voluminous record in t1, is 
case, covering about five hundred and fifty 
pages, and have carefully set out the sub- 
stance of the evidence introduced by both 
parties bearing upon this question, as well 
as that touching the manner in which the 
