Iuszkewicz v. Luther

• Decision Date: 08 July 1910
• Citation: 30 R.I. 570,76 A. 829
• Parties: IUSZKEWICZ v. LUTHER, Town Clerk, et al.
• Court: Rhode Island Supreme Court

76 A. 829

30 R.I. 570

IUSZKEWICZ

v. LUTHER, Town Clerk, et al.

Supreme Court of Rhode Island.

July 8, 1910.

Mandamus by Blazys Iuszkewicz against Sterry K. Luther, Town Clerk, and the Town Council of the Town of Johnston. Petition for writ denied and dismissed.

James A. Williams, for petitioner.

Frank W. Tillinghast and Michael J. Lynch, for respondents.

PARKHURST, J. This is a petition for a writ of mandamus, brought by the complainant against the town clerk and town council of the town of Johnston, asking this court to issue a writ commanding the said clerk and council to grant a permit to the complainant for the burial of his child in a certain part of the town of Johnston. This petition is brought because of the refusal of said clerk and town council to issue the said permit. The respondents in this cause claim that they have a right under the statutes of this state to prohibit the burial of the dead in that section of the town where the complainant seeks to have the interment of his deceased child.

It appears in evidence that the petitioner is a member of the Lithuanian Catholic Church located in the city of Providence; that the church corporation, by deed dated June 12, 1909, and recorded July 31, 1909, purchased certain lands located in the town of Johnston in the village of Manton, but it does not appear on the face of the deed that said land was purchased for a burial place or cemetery. It further appears that on the 18th day of July, 1909, said real estate was consecrated as a cemetery and place of burial for the members and parishioners of said church according to the forms, usages, and customs of said church; but it does not appear that at that time the town council or any town officer had any knowledge of such acts or of such purchase or of the purpose for which it was made. It further appears in evidence, and it is not disputed, that the location of the land purchased is in the village of Manton, one of the compact or thickly populated parts of said town of Johnston, a growing section, used for residential purposes. It further appears that neither said church corporation, nor any one in its behalf, took occasion to inquire of the town authorities either before the purchase, or before or at the time of the consecration, or afterwards, until it was desired to make an actual burial in the ground, whether or not said church would be permitted to establish a burial ground on the land in question, and it does not appear that the town authorities had any knowledge or notice of the intention of the church to use said land as a burial ground, until some time after the date of said consecration, when a permit for the first burial therein was requested and promptly refused by the town council.

At the time when this land was purchased, June 12, 1909, and for many years prior thereto, to wit, since May 2, 1884 (see Pub. Laws R. I. c. 423, January, 1884), the law in its present form, now appearing as chapter 107, § 18, Gen. Laws 1909, has been in force. Chapter 107, § 18, Gen. Laws 1909, provides as follows: "Sec. 18. The town council of any town may prohibit burials in the compact or thickly populated parts of such town, and may make such by-laws and ordinances relating to burials and the use of grounds for burials in such town as they may think necessary for preserving the health thereof and may enforce such ordinances," etc.

Under authority of the foregoing statute, the town of Johnston passed the following ordinances:

"At a meeting of the town council of the town of Johnston, holden within and for the town of Johnston, on the thirteenth day of August, A. D. 1909, the following ordinance concerning cemeteries and places of burial was passed:

"Section 1. No cemetery or place of burial shall be established in the town of Johnston, until the town council shall grant a permit for the same.

"Sec. 2. Before a permit shall be granted by the town council for the establishment of a cemetery or burial ground, a petition shall be filed with the town clerk, which petition shall be advertised for two weeks in some public newspaper of general circulation in the town of Johnston before the same shall be acted upon by the town council.

"Sec. 3. Any person violating any of the provisions of the above ordinances shall be fined not less than ten dollars nor more than twenty dollars, or be imprisoned not exceeding three months.

"These ordinances shall take effect immediately."

"At a meeting of the town council of the town of Johnston, R. I., holden within and for the said town on the 14th day of January, A. D. 1910, the following ordinance in regard to certain burial grounds is passed:

"An ordinance prohibiting the burial of dead bodies in certain compact or thickly populated parts of the town of Johnston.

"It is ordained by the town council of the town of Johnston as follows:

"Section 1. No person shall bury or inter, or cause to be buried or interred, any dead body, nor dig, or cause to be dug, any grave anywhere within that territory in the town of Johnston, known as and comprising the Manton village, without permission from the town council of the town of Johnston, first had and obtained. The Manton Cemetery and the Kelley Cemetery, within said territory so-called, are hereby exempt from the provisions of this ordinance.

"Sec. 2. Every person violating any of the provisions of this ordinance shall be fined not exceeding twenty dollars, or be imprisoned not exceeding ten days or both."

It will be remembered that the deed of the land to the church corporation was not recorded until July 31, 1909, and that it does not appear that the town council even then had any notice of the intention to establish a burial ground. It seems fair to infer, therefore, that the town council passed its ordinance of August 14, 1909, above quoted, concerning cemeteries and places of burial, as soon as possible after it had notice of such intention. There is no evidence that the church corporation has ever made application under said ordinances for a permit to establish a cemetery or place of burial.

The petitioner, having lost an infant child by death, on March 22, 1910, thereafter made report thereof to the respondent's town clerk and town council and made request for a permit to bury said infant child in said land, and that permit was refused. The petitioner claims that such refusal was a violation of the duty of the respondents, and by this petition prays the court to grant a writ of mandamus to compel the issue of such permit. The petitioner, in his brief, states his position in this matter as follows: "(1) He has the right to bury his deceased child upon the land in question. (2) The land in question is a cemetery by reason of its having been dedicated and consecrated for that purpose, in a perfectly lawful manner. (3) That the ordinance passed by the town council of the town of Johnston on August 13, 1909, after the dedication and consecration of this cemetery, is not retroactive and has no force so far as the establishment of this cemetery is concerned. (4) That the ordinance passed by the town council in January, 1910, is unconstitutional and void for two reasons: (a) It is unreasonable; and (b) it makes an unjust discrimination. (...