Masonic Cemetery Ass'n v. Gamage

• Decision Date: 10 March 1930
• Docket Number: No. 5851.,5851.
• Citation: 38 F.2d 950,71 ALR 1027
• Parties: MASONIC CEMETERY ASS'N et al. v. GAMAGE et al.
• Court: U.S. Court of Appeals — Ninth Circuit

71 ALR 1027, 38 F.2d 950 (1930)

MASONIC CEMETERY ASS'N et al. v. GAMAGE et al.^*

No. 5851.

Circuit Court of Appeals, Ninth Circuit.

March 10, 1930.

Sullivan & Barry and Theo. J. Roche, of San Francisco, Cal., for appellants.

Aaron M. Sargent, of San Francisco, Cal. (Geo. Clark Sargent and Peter tum Suden, both of San Francisco, Cal., of counsel), for appellees.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

WILBUR, Circuit Judge.

This is an appeal from an interlocutory injunction by the District Court, at the instance of the appellees, sixteen lot holders within said cemetery, to prevent the appellants from complying with a municipal ordinance of the city and county of San Francisco declaring the Masonic Cemetery, within the limits thereof, a nuisance and directing the removal therefrom of all the bodies buried therein by the appellant corporation, or by the individual lot owners. The appellant association was organized in 1864 under the act authorizing the establishment and maintenance of rural cemeteries enacted in 1859 by the Legislature of the state of California (Stat. 1859, p. 234), and which association established and has maintained the Masonic Cemetery since its organization. The other appellants are the directors of the association.

This action was brought in the District Court on the ground that the constitutional rights of the appellees were invaded or threatened by the contemplated action of the appellants. The appellees seek, not merely an order preventing interference with their own particular lots, but all others, and, in effect, seek by injunction to require the maintenance of the cemetery as such, notwithstanding the fact that the state has declared the continuance thereof a nuisance and in spite of the fact that a majority of the lot owners, at a properly called meeting, have expressed a desire to abandon the cemetery and remove the bodies therefrom. The most that the appellees concede is the right of individual lot owners, or the relatives of deceased persons whose bodies are interred therein, to remove the bodies or consent thereto, and the interlocutory decree so provides. That is to say, the appellants are prevented from removing over 5,000 bodies at the instance of the small number of lot holders who join herein as plaintiffs.

Before discussing the legal problems involved a brief statement of the situation will be made.

In 1900 the city and county of San Francisco, by its legislative body, the board of supervisors, enacted legislation prohibiting further burials in any cemetery within the city and county of San Francisco. This ordinance was held to be a constitutional exercise of authority by the Supreme Court of the state of California. Odd Fellows' Cemetery Ass'n v. City & County of San Francisco, 140 Cal. 226, 73 P. 987; Laurel Hill Cemetery v. City & County of San Francisco, 152 Cal. 464, 93 P. 70, 27 L. R. A. (N. S.) 260, 14 Ann. Cas. 1080.

The latter decision was affirmed by the Supreme Court of the United States, 216 U. S. 358, 30 S. Ct. 301, 54 L. Ed. 515. The power of the state to prohibit further burials within these cemeteries and within the limits of the city and county was thus established. Later in 1921 (Stats. 1921, p. 199) the Legislature of California enacted a law permitting, but not requiring, the appellant and other cemetery associations to remove from the cemetery the bodies then interred therein. Acting upon the authority thus granted the appellant proceeded to act thereon, but were prevented by some of the lot owners, on the ground that their rights were being infringed. The Supreme Court of California held that, as the act was merely permissive, it was therefore not an exercise of the police power of the state. Hornblower v. Masonic Cemetery Ass'n, 191 Cal. 83, 214 P. 978, 981. In its opinion therein the court defined the rights of the lot holders, so far as was necessary to the decision, and indicated that, if the action of the Legislature had been a direct exercise of its police power requiring the removal of the bodies, the action would have been constitutional. In that regard the court made the following statement:

"Undoubtedly the Legislature had the power to terminate this right of appellant's by the enactment of a statute in the proper exercise of its police power. If the Legislature should find and determine that the continued maintenance of cemeteries in cities of the class described in the Morris Act will be dangerous or detrimental to the health of the citizens, it could compel the removal of the bodies and the abandonment of the cemeteries, and thus terminate the right of the lot owners to their continued maintenance."

The state Legislature thereafter in 1923 enacted a law (Stats. 1923, p. 646) delegating to the legislative bodies of municipalities of over 100,000 inhabitants to require the removal of bodies from cemeteries therein where interments therein had been prohibited by law for fifteen years or more, whenever the local legislative body declares further maintenance of the cemetery endangers the health, safety, comfort, or welfare of the public. Acting in pursuance of this authority and in accordance with its terms, the board of supervisors of the city and county of San Francisco, on July 9, 1928, passed an ordinance requiring the removal of all human bodies interred in the cemetery maintained by the appellants, and on the same day enacted a similar ordinance applicable to the Odd Fellows Cemetery, but did not then and has not yet so acted with reference to the Calvary and the Laurel Hill Cemeteries closely adjoining the cemetery maintained by appellants.

It is contended by the appellee that the attempted delegation of legislative authority by the state Legislature, and the exercise thereof by the board of supervisors, were both unavailing because of the fact that the powers of the board of supervisors are defunct by the charter of the city and county of San Francisco, and that the legislative powers of that body as therein defined can only be altered by an amendment to the charter which requires a vote of the people of the city and county as a necessary preliminary step to the adoption of amendments thereto. This point is not well taken. The Constitution of California, article 11, § 11, vests in the legislative body of a municipality or county the power to enact local public and sanitary legislation not inconsistent with general laws. This is a part of the police power of the state directly granted by the people of the state to the municipal legislature. With reference to this subject the Supreme Court of California, speaking through Justice Shaw, in Odd Fellows' Cem. Ass'n v. City & County of San Francisco, 140 Cal. 226, 230, 73 P. 987, 988, said: "By virtue of this clause, the constitutional grant of the police powers of the state to the city goes directly to and vests in the board, which thereby becomes possessed of the right, within the city limits, to exercise the entire police power of the state, subject only to the control of general laws."

In that case it was held that this general grant of legislative power in the Constitution of California authorized the board of supervisors to prohibit future burials in cemeteries within the city and county, subject only to the general laws of the state. Where the state Legislature has expressly authorized the legislative body of the city to exercise certain police powers with reference to cemeteries as it has done here, it is difficult to see how there can be a conflict between the state law and the enactment which is fully authorized by the state Constitution where it does not conflict with a general law. It was not necessary for the state Legislature to grant police power to the city within its boundaries. It had only to definitely retire from that particular legislative field, and this it did by expressly authorizing the act in question and thus in effect repealing any general laws on the subject which otherwise might interfere with the free exercise of the police power of the city and county. It is suggested by appellees, rather than argued, that the matter involved is a municipal affair and therefore regulated by the freeholders' charter adopted in pursuance of the Constitution of California, art. 11, § 6. Without elaborate discussion we think it may be said that without doubt the burial of the dead and the maintenance of cemeteries is not a municipal affair. See Ex parte Daniels, 183 Cal. 636, 641, 192 P. 442, 21 A. L. R. 1172, with relation to traffic regulation, and see cases cited in Odd Fellows' Cemetery Ass'n v. City & County of San Francisco, supra, page 231 of 140 Cal., 73 P. 987; see discussion in Fragley v. Phelan, 126 Cal. 383, 58 P. 923.

In view of the action of both the state and of the municipal legislature, and in view of the presumption of the due exercise of constitutional authority, in the absence of a fuller discussion of the subject in the briefs and in the absence of any clear decision by the Supreme Court of California against the authority of such legislative bodies, and in view of the fact that on the contrary the decisions of that court apparently fully support that power, we feel justified in assuming without further discussion that the authorities of the state have herein exercised to the full their police power, and that the question for our consideration is whether in so doing they have authorized a violation of private rights guaranteed to appellees by the Constitution of the United States. These rights are defined in the act authorizing the creation of the association. Stat. 1859, p. 281. The lots are sold by the association to the individual lot owners and all the proceeds thereof devoted to the payment of bonds issued the vendor of the cemetery to the association and in "the improvement, embellishment and preservation of such cemetery, and for incidental expenses, and to no other purpose or object." The cemetery and the lots are...