City of Austin v. Austin City Cemetery Ass'n.

• Decision Date: 03 December 1894
• Citation: 28 S.W. 528
• Parties: CITY OF AUSTIN v. AUSTIN CITY CEMETERY ASS'N.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

28 S.W. 528

CITY OF AUSTIN v. AUSTIN CITY CEMETERY ASS'N.¹

Supreme Court of Texas.

December 3, 1894.

Certified questions from court of civil appeals of Third supreme judicial district.

Action by the Austin City Cemetery Association against the city of Austin. On appeal by defendant to the court of civil appeals, questions were certified to the supreme court.

Geo. F. Pendexter, for appellant. C. H. Miller and Fisher & Townes, for appellee.

GAINES, C. J.

The court of civil appeals for the Third supreme judicial district in the case above stated submits the following statement, and certifies for our determination the accompanying questions:

"The appellee is a corporation chartered under the laws of this state for the purpose of maintaining a cemetery in the city of Austin, and owning and selling lots therein for the purpose of the burial of dead human bodies; and that in 1892 it acquired and purchased within said city limits, on the north side of the Colorado river, a tract of land for said cemetery; and that in February, 1893, the city of Austin, as a municipal corporation, passed the following ordinance:

"`Be it ordained by the city council of the city of Austin.

"`Section 1. That it shall be unlawful for any person to bury, or cause to be buried, or to in any manner aid or assist in the burial of the dead body of any human being, within the corporate limits of the city of Austin, north of the Colorado river, except in the State Cemetery, the Mount Calvary Cemetery, and the cemetery heretofore established by ordinances of said city, and therein designated as the Austin City Cemetery; provided, that the two and one-half acre tract lying on the north of said last named cemetery, purchased by said city in 1890, shall not be considered as part of said cemetery, and no burials shall be made in said tract.

"`Sec. 2. Any person who shall bury, or cause to be buried, or in any manner aid or assist in the burial of the dead body of a human being, in violation of section one of this ordinance, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined not less than fifty dollars, nor more than two hundred dollars.

"`Sec. 3. This ordinance shall take effect and be in force from and after its publication, as required by the charter of the city of Austin.'

"This ordinance was passed by virtue of the following provision of the city charter: `To regulate the burial of the dead and to prohibit public funerals in cases of death from contagious or infectious disease; to purchase, establish and regulate one or more cemeteries within or without the city limits.' [Sp. Laws 1891, p. 109, § 57, subsec. 6.] The territory within the city limits on the north side of the Colorado river embraces something over 4,500 acres of land, some of which is thickly settled, and some of which is very sparsely settled. There is territory embraced within the city limits, on the south side of the Colorado river, that confessedly may be suitable for a cemetery and burial purposes, and in which cemeteries are not prohibited. The appellee brought its suit by injunction to restrain the city from enforcing the ordinance set out against its cemetery and the burial of the dead there, and asks that said ordinance be declared void on the ground that the charter did not authorize the city to pass such an ordinance, and on the further ground that the same is unreasonable and unjust, and in effect deprives appellee of its property and rights without due process of law."

The questions submitted for our decision under the statement of the case are as follows: "Question No. 1: Does the fact that the ordinance set out may be void, and that the city was not immediately seeking to enforce it, and the fact that a legal remedy may exist against its enforcement, sufficient to deny the appellee the remedy by injunction to restrain its execution, and to declare the ordinance void, when the facts in the record show that the right and privilege of using its property for cemetery purposes was destroyed or impaired by virtue of the existence of the ordinance, as no one in the control of dead bodies was willing that they should be buried or interred there for fear of violating the ordinance in question? Question No. 2: Does the provision of the city charter authorize the passage by the city council of the ordinance in question? Question No. 3: If said ordinance was legally passed by virtue of authority of the charter, have the courts the authority to inquire into the reasonableness or unreasonableness of the ordinance? Question No. 4: Is the ordinance in question void on the ground that it is unjust and unreasonable, or that it deprives the appellee of its rights or property without due process of law? Question No. 5: If the ordinance may be unjust or unreasonable, has the trial court the power to so determine, as a matter of law, when there is a jury trial, or should the matter, as a mixed question of law and fact, be left to the determination of the jury?"

1. We are of the opinion that, if the ordinance in controversy be void, the appellee is entitled to restrain its enforcement by the writ of injunction. It is not to be controverted that, as a general rule, the aid of a court of equity cannot be invoked to enjoin criminal prosecutions. This rule is, however, subordinate to the general principle that equity will grant relief when there is not a plain, adequate, and complete remedy at law; and, when it is necessary to prevent an irreparable injury, courts of criminal jurisdiction have power to enforce an observance of statutes against crime by visiting upon offenders the penalties affixed for their infraction, and ordinarily no one can call to his aid the powers of a court of equity in order to enforce their observance. Yet it has been held that "the court will interfere to prevent acts amounting to crime, if they do not stop at crime, but also go to the destruction or deterioration of the value of the property." Spinning Co. v. Riley, L. R. 6 Eq. 551. This, however, does not assist us materially in the solution of the present question. It would seem clear that if a party could be enjoined from doing an...