People v. John Doe of Rosehill Cemetery Co.

• Decision Date: 20 April 1929
• Docket Number: No. 19218.,19218.
• Citation: 166 N.E. 112,334 Ill. 555
• Parties: PEOPLE v. JOHN DOE OF ROSEHILL CEMETERY CO.
• Court: Illinois Supreme Court

334 Ill. 555

166 N.E. 112

PEOPLE

v.JOHN DOE OF ROSEHILL CEMETERY CO.

No. 19218.

Supreme Court of Illinois.

April 20, 1929.

John Doe of Rosehill Cemetery Company was convicted of violating an act in relation to the control of public graveyards, and he appeals.

Reversed.

Appeal from Municipal Court of Chicago; Howard Hayes, Judge.

Ashcraft & Ashcraft, of Chicago (Carroll J. Lord, of Chicago, of counsel), for appellant.

Oscar E. Carlstrom, Atty. Gen., and Robert E. Crowe, State's Atty., of Chicago, and Roy D. Johnson, of Springfield (John Holman, Edward E. Wilson, and George A. Carmichael, all of Chicago, of counsel), for the People.

DE YOUNG, C. J.

By an information filed in the municipal court of Chicago, John Doe of Rosehill Cemetery Company was charged with the violation of section 1b of the act entitled ‘An act in relation to the control of public graveyards.’ Laws of 1927, p. 195; Cahill's Stat. 1927, p. 214; Smith's Stat. 1927, p. 232. The section reads as follows: ‘It is unlawful for a trustee or person in control of any cemetery or public graveyard in the State of Illinois to make or enforce a rule or by-law prohibiting the erection of headstones, approved by the United States government or by the State of Illinois, for the graves of soldiers, sailors or marines, who have served in the army or navy of the United States or of the State of Illinois; and any rule or by-law heretofore passed by any cemetery association, trustees, or persons having control of any cemetery, prohibiting the erection of such headstones is void and of no effect. Any person, firm or corporation, seeking or attempting to enforce any such rule is guilty of a misdemeanor and upon conviction thereof shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100) for each offense.’ The capias was executed by arresting George D. Van Patten. He waived a trial by jury. The court found him guilty as charged, and imposed a fine of $100 upon him. The invalidity of the statute which formed the basis of the prosecution was the defense interposed, and for that reason the defendant prosecutes an appeal directly to this court.

The facts are not in controversy. The Rosehill Cemetery Company was created by a private act of the General Assembly approved February 11, 1859 (Priv. Acts 1859, p. 29). The act, among other things, authorized the managers of the company, and their successors, in the company's name, to purchase and hold real estate, at no time exceeding 500 acres, in the town of Lake View, in Cook county, for cemetery purposes; to dispose of burial lots on such terms and with such conditions for the permanent care and preservation of the cemetery, or any part of it, as they might agree upon with the purchasers, and to make such rules and regulations, from time to time, for the government of lot holders and visitors to the cemetery as they might deem necessary. Since its charter was granted, the Rosehill Cemetery Company has acquired, and now owns, approximately 340 acres of land in that part of the city of Chicago formerly known as the town of Lake View. About 200 acres have been improved for burial purposes. Water pipes have been laid under the surface of the ground, walks and driveways have been provided, black soil has been placed on the surface and seeded, trees and shrubbery have been planted, and buildings have been erected within the cemetery grounds. To improve and to beautify its property the company has expended large sums of money. Many lots in the improved sections of the cemetery remain unsold, and approximately 140 acres await future development.

Pursuant to authority granted by the company's charter, its board of managers from time to time adopted by-laws and regulations respecting the conduct and operation of the cemetery, the kind, dimensions, and manner of setting grave-markers, headstones, and monuments, the sale, care, and improvement of burial lots, and the rights and obligations of the purchasers of such lots. Among these by-laws and regulations are the following:

‘In the new sections, grave-markers shall not exceed four or six inches in height when set, twenty-four inches in length for adults and twenty inches for children, and not less than six inches nor more than twelve inches in width. * * * In some sections markers must be set level with the ground.’

‘Markers should be set at least three feet from the monument, and where monuments are contemplated the company especially recommends low grave-markers, as high markers are detrimental to the appearance of the lot.’

‘All monuments or markers must be built of granite of standard bronze, and lot owners should not purchase stone until they ascertain whether the rules will permit its erection.’

‘Government headstones made of marble, which is perishable in this climate, will not be permitted except in the old sections, namely, B, C, D, E, F, G, H, I, J, M, N, O, P, 1, 2 and 4, and must be set in accordance with rules governing stones on the lot but in no case to exceed twelve inches in height. For permanency we strongly advise the use of granite only.’

In the year 1890 the cemetery company conveyed a certain lot to one Carlson. The deed provided that the grantee, his heirs and assings forever, should hold the lot as a place of interment, subject, however, to the provisions of the act by which the cemetery company was created and to the rules and regulations then or thereafter adopted by the company in conformity with that act. The body of James L. Fleetwood, who in his lifetime was a soldier of the United States army, was buried in the lot so conveyed. Demand was made upon the cemetery company that a United States marble marker be permitted to be placed over Fleetwood's grave. The particular grave is located in a part of the cemetery where, under the company's rules and regulations, marble markers are prohibited. The desired permission was accordingly refused, and the arrest and prosecution of the appellant, one of the persons in control of the cemetery, upon the instant charge followed.

It appeared from the evidence that headstones furnished free of charge by the United States government for erection over the graves of soldiers and sailors are made of marble, and are 34 to 36 inches in height, about 14 inches in width, and 2 1/2 inches in thickness; that, to avoid a partial burial of the inscription, these headstones must be set more than 12 inches above the surface of the ground; that the headstones furnished by the government do not conform in size and shape to the headstones approved by the leading cemeteries of the country; that practically all of the larger and better cemeteries have adopted rules and regulations limiting the height of headstones; that certain cemeteries prescribe a maximum height of 15 inches, others of 6 inches, and still others require their tops to be level with the ground; that, apart from certain old sections of Rosehill Cemetery, enumerated in the by-laws, where marble government markers may be installed at a height not exceeding 12 inches above the ground, the rules and regulations of the Rosehill Cemetery Company fix 6 inches as the maximum height at which headstones may be set, while in some of the newer sections of the cemetery they must be so placed that their tops shall be level with the ground's surface; that in this climate marble readily absorbs moisture, and, by reason of successive expansion and contraction caused by heat and cold, disintegration of the stone results; that by the action of the elements many of the marble headstones erected in the cemetery over the graves of soldiers of the Civil War have deteriorated to such an extent that the inscriptions upon them are completely obliterated; that granite headstones and monuments are not affected by the elements, and that inscriptions upon them will remain legible perpetually; that no government headstones made of...