cemetery was managed and controlled, and 
after a careful consideration of the weight 
thereof, we have reached the conclusion 
that this ordinance was not enacted for the 
purpose of preserving the public health of 
the city, but was passed at the instigation 
and request of a lot of real estate agents, 
land owners and speculators, who think 
that this cemetery stands in the way of the 
expansion and development of Kansas City 
in that direction, and especially is that true 
since the location of the New Union Depot 
has been definitely located in that vicinity. 
In the first place the complaints of the 
living were as silent as those of the dead, 
as to the unsanitary condition of the ceme- 
tery until the railroads of the city finally 
determined to locate the Union Depot in 
the vicinity of this cemetery. Since that 
time, however, the question has been 
agitated, not by the citizens generally of 
Kansas City, by or through their represent- 
atives, neither in its municipal capacity nor 
by its Board of Health, which has the most 
ample authority under the charter of the 
city to investigate and abate, either by 
direct action or by appeal to the common 
council, any and all public or private nui- 
sances or other matters, which do or may 
effect the public health of the city, but by 
those citizens who have discovered in re- 
cent years, that this cemetery is and has 
retarded the growth and expansion of the 
city in the line of their property, and 
thereby and in consequence thereof, the 
values of their property have not increased 
in the degree in which they think they 
would have done had it not been for the 
presence of the cemetery. 
That class of citizens, and they alone, 
for purely commercial purposes, and for 
anticipated financial advantages, petitioned 
for and pressed the passage of this ordi- 
nance. 
Not even the Board of Health or Mr. 
Ward, the councilman from that ward, 
whose sworn duty is was to look after and 
preserve the public health of the city, knew 
of or ever heard of any deleterious effects 
the cemetery ever had upon the health 
and welfare of the city, until the peti- 
tions asking for the abolition of this ceme- 
tery was by said interested parties filed 
with the common council. And still more 
strange no member of said board appeared 
or was subpoenaed as a witness in this 
case, to testify that the cemetery was 
deleterious to public health, which un- 
questionably they would have done had that 
been true. 
While Mr. Ward, the councilman from 
that ward, did testify, yet he in express 
words said he introduced said ordinance 
in the lower house and voted for its enact- 
ment because the citizens of his ward, 
residing in that vicinity petitioned him to 
do so, and not a word of evidence es- 
caped his lips tending to show that he in- 
PARK AND CEMETERY. 
troduced said ordinance or voted for the 
same from a sense of duty that it was 
beneficial to public health, thereby clearly 
leaving the irresistible inference, that he did 
so because it was for the promotion of the 
financial and commercial interests of his 
constituency. 
Moreover, there is not a word of testi- 
mony preserved in this record which tends 
to show that this cemetery was in fact 
deleterious to public health. 
All of the witnesses who testified as to 
this question in behalf of the defendants, 
invariably stated that such conditions might 
produce disease, death and destruction, but 
not one of them stated as a fact that this 
cemetery gave off any bacteria or deadly 
germs, or that any of the pools or ponds 
mentioned in the evidence contained a single 
germ, or that the water, rats, mice or any 
domestic animal ever carried or distributed 
germs of that character over the area of 
the city. Nor does the evidence show that 
a single case of sickness, disease or death 
was caused by the presence of said cemetery. 
In truth, no attempt whatever was made 
by defendants to show any such facts, but 
upon the contrary, what little evidence 
there was introduced by plaintiffs, tended 
to prove the contrary, that is, there were 
not so many cases of contagious and infec- 
tious diseases reported to the Board of 
Health from that vicinity as were done 
from other localities of the city. 
Under this showing, we have no hesi- 
tancy whatever in holding that said ordi- 
nance is unreasonable, oppressive and 
tyrannical. For in order to financially 
benefit a few property owners and specu- 
lators in that vicinity, they, through the 
innocent action of the common council, 
are ready and willing to sacrifice the final 
resting place of those stalwart men and 
women who made Kansas City what it is, 
and without whose efforts the city would 
not be worth mentioning. They built the 
city, developed its commerce, and made 
Kansas City what it is. They also, as a 
part of their life’s work, created and 
adopted this cemetery as a final resting 
place for their ashes, which in anticipation, 
was as near and dear to them in life as 
were the residences in which they lived, 
the stores in which they bartered and sold, 
the factory in which they labored and the 
counting houses in which they exchanged 
values. 
1 he city of the dead, which is honored 
and revered by all civilized people, includ- 
ing the cost of the interments and ex- 
penses of monuments erected to their 
sacred memory, to say nothing of the cost 
of preserving and beautifying the graves, I 
dare say, has cost the deceased and the 
relatives and friends, not less than six or 
eight millions of dollars, to say nothing 
cf this wholesale, unholy desecration — a 
financial destruction of values, which would 
far excel the financial benefits these peti- 
203 
tioners could ever hope to receive there- 
from, even though their fondest hopes 
should be crowned with success. 
In the case of the American Tobacco Co. 
v. The City of St. Louis, supra, where the 
benefits to be derived and the damages 
which would have been sustained by reason 
of the enforcement of the ordinance therein 
mentioned, were far greater than the bene- 
fits here to be received and far less than 
the damages that would be here inflicted, 
yet by these reasons, among others, the 
court en banc unanimously held the ordi- 
nance therein mentioned, as unreasonable, 
oppressive and void ; and by parity of rea- 
soning and for greater considerations ex- 
isting in this case, we believe and hold that 
this ordinance is unreasonable and op- 
pressive and should for that reason be de- 
clared and held to be null and void, which 
is accordingly done. 
Judge L. C. Slavers appeared in this 
court as council for certain lot-owners in 
the cemetery, in the capacity of interven- 
ers I suppose, but who were not represented 
in the court below, and asks that this 
court find and decree that the cemetery 
owes certain duties to preserve and beautify 
the cemetery and the graves thereof, and 
that this court require the officers thereof 
to provide and set apart a fund sufficient, 
and out of which said cemetery may be 
preserved, cared for, and with which to 
beautify the graves therein. 
In answer to that request we will state 
that while there seems to be much merit 
in this request, as incidentally appears from 
this record, yet no such question was pre- 
sented by the pleading or established by the 
evidence or considered by the trial court, 
and for that reason, however desirous we 
might be to afford the relief thus prayed, 
yet it is perfectly apparent that under the 
present condition of the pleadings and evi- 
dence in the case, we have no jurisdiction 
to so do. Such a holding would clearly 
deprive the cemetery company of its pron- 
erty without due process of law, within the 
meaning of both the state and Federal Con- 
stitutions. 
Much of the evidence introduced in this 
case and previously set forth in this opin- 
ion, bears upon this question, which may 
and should justify, on the part of the city 
and lot-owners, stricter regulations, better 
preservation and more suitable care and at- 
tention, both to the grounds and graves 
therein, than has heretofore been shown 
them, but in no sense does or should that 
evidence which constitutes the great bulk 
of this record, warrant the city in abolish- 
ing the cemetery outright, which is practi- 
cally done in this ordinance, if it is to 
stand. So hold may of the cases cited. 
For this reason we decline to pass upon 
this question one way or the other, in or- 
der that if these parties desire to have 
