Union Cemetery Ass'n v. Kansas City

• Decision Date: 11 November 1913
• Citation: 252 Mo. 466,161 S.W. 261
• Parties: UNION CEMETERY ASS'N et al. v. KANSAS CITY et al.
• Court: Missouri Supreme Court

161 S.W. 261

252 Mo. 466

UNION CEMETERY ASS'N et al. v. KANSAS CITY et al.

Supreme Court of Missouri.

November 11, 1913.

1. MUNICIPAL CORPORATIONS (§ 63) — ORDINANCES — REASONABLENESS — POWER OF COURTS.

The courts may inquire into the reasonableness of municipal ordinances.

2. MUNICIPAL CORPORATIONS (§ 609) — ORDINANCES — POWER OF CORPORATION.

Under Kansas City Charter 1909, art. 1, § 1, par. 13, providing that the corporation may exercise all powers necessary to maintain the public peace, protect property, and promote the public welfare, and preserve the health of the inhabitants, and article 3, § 1, par. 16, declaring that the mayor and common council shall have authority by ordinance to secure the general health and safety, and abate nuisances, or under paragraph 41 alone, which declares that the council shall have power to pass all ordinances not inconsistent with the laws of the state or the United States as may be necessary to maintain peace, order, good government, health, and welfare, the city has authority to prohibit further burials in a cemetery located within its boundaries where the continued use of the burying ground would be detrimental to the public health and constitute a nuisance.

3. MUNICIPAL CORPORATIONS (§ 592) — ORDINANCES — HEALTH.

Where a cemetery association was incorporated by a special act of the Legislature, the right of the municipality in which it was located to prohibit the continued use of the burying ground because it was a nuisance and dangerous to public health cannot be denied on the ground that the charter of the municipality giving it authority to pass such ordinances prohibited the passage of ordinances inconsistent with the state laws, for the abating of the nuisance of the burying ground was not a repeal of its charter.

4. CONSTITUTIONAL LAW (§ 60) — MUNICIPAL CORPORATIONS (§ 591) — POLICE POWER.

Neither the city nor the state can surrender or bargain away its police power.

5. CEMETERIES (§ 3) — CONSTITUTIONAL LAW (§ 129) — CHARTERS.

Neither the state nor the municipality can preclude itself by a charter to a cemetery association from enacting laws prohibiting burials in places where they constitute a public nuisance.

6. INJUNCTION (§ 128) — ENFORCEMENT OF ORDINANCES — CEMETERIES — NUISANCES.

In a suit to enjoin the enforcement of a municipal ordinance prohibiting further burials in a cemetery located within a municipality, evidence held to show that the ordinance was not passed for the benefit of the public health or to abate nuisances, but to benefit land speculators and others who expected to reap a benefit by the disuse of the cemetery.

7. CEMETERIES (§ 3) — ORDINANCES — VALIDITY.

Where the location of a cemetery to a large extent blocked the growth of one part of a city an ordinance, enacted not to protect the public health but to benefit speculators and

landowners in that vicinity, which prohibited subsequent burials in the cemetery and would tend to work the destruction of the cemetery, is unreasonable, tyrannical, and invalid, particularly where it appeared that the increase in the value of the surrounding property would not correspond to the destruction of the value of the cemetery.

8. APPEAL AND ERROR (§ 172) — QUESTIONS PRESENTED FOR REVIEW.

In a suit by a cemetery association to enjoin the enforcement of a municipal ordinance prohibiting future burials, lot owners who were not represented in the court below cannot upon appeal obtain a decree requiring the association to do certain work on the lots; that question not being presented by the pleadings or dealt with by the evidence.

9. CONSTITUTIONAL LAW (§ 316) — DUE PROCESS — WHAT CONSTITUTES.

For the Supreme Court, on appeal in an action to enjoin enforcement of an ordinance forbidding further interments, to render a decree requiring plaintiff, a cemetery association, to perform duties as to care of lots claimed to exist by lot owners, which matters were not raised below, and were solely between plaintiff and the lot owners who were not even parties, would work a deprivation of plaintiff's property without due process of law.

Bond, J., dissenting in part.

In Banc. Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by the Union Cemetery Association and others against Kansas City and others. From a judgment for defendants, plaintiffs appeal. Reversed.

The plaintiffs, the appellants here, who for convenience will hereafter be designated by the former appellation, instituted this suit in the circuit court of Jackson county to enjoin the respondents, who hereafter will be referred to as "defendants," from enforcing an ordinance of the city, duly enacted by the common council thereof, and approved by the mayor, July 14, 1910, forbidding burials in the grounds of the Union Cemetery, a corporation duly incorporated under the laws of this state, by a special act of the Legislature, approved November 9, 1857.

In order to fully and properly understand the positions of the respective parties to this suit, it will be necessary for us to set forth both the act incorporating the cemetery and the ordinance prohibiting further burials therein.

Said act of the Legislature reads as follows:

"An act to incorporate the Union Cemetery Association.

"1. That James M. Hunter, Edward T. Perry, Joseph C. Ranson, William R. Bernard, Robert J. Lawrence, and Milton J. Payne, and their successors forever, be, and they are hereby created a body politic and corporate, by the name and style of the `Union Cemetery Association'; and by that name have perpetual succession; sue and be sued; plead and be impleaded; defend and be defended in all courts in this state; and in like manner to have and use a common seal, which they may alter or change at pleasure; to make such by-laws and regulations for the good government of the corporation, and the efficient management of its affairs, as they may deem necessary; provided, the same are not inconsistent with or repugnant to the public law of the land.

"2. In addition to the tract of land now held or owned by the said corporation for a cemetery or graveyard, they shall have power to buy and hold any number of acres, not exceeding one hundred and sixty, for that purpose; may lay off the same, or any portion thereof, into lots and subdivisions suitable for graves, vaults and monuments; may embellish the same with trees, shrubbery, and flowers, or cause the same to be done by any purchaser thereof, and lay out avenues and walks; and when so laid off and dedicated, shall be forever held by said corporation for the purpose aforesaid, and none other; said corporation may sell and convey any of the lots or subdivisions in said cemetery for the purpose aforesaid, subject to such conditions as may be prescribed by its by-laws; and every right sold and conveyed shall be held and used by the purchasers thereof, for the purposes aforesaid, and none other, and shall not be subject to attachments or sale under execution, nor by order of any court, or be conveyed by the owner out of his family after any interments have been made in said lot.

"3. The officers of said corporation shall be a president, secretary and treasurer, who shall be elected every year, out of the said board of corporators; and said corporators may appoint such other officers as the board may deem needful, and prescribe the duties and terms of office; they shall also keep a faithful record of their proceedings, copies of which, certified under the seal of the corporation, shall be received as evidence in all courts in this state; the first election shall be held on the first Monday in May, A. D. 1858, and every year thereafter, at the city of Kansas. Milton J. Payne, president, and William R. Bernard, secretary and treasurer, who are now the chosen officers of said corporation, shall hold their offices until the first general election, and until their successors are duly elected; and as such officers, are empowered to do and perform all the acts and things imposed on them by this act, and all vacancies that may occur in said board shall be filled in such manner as the board may determine in their by-laws.

"4. The president shall, at the request of any two of the corporators, call together a meeting of the board; shall preside at all meetings, and do all other acts and things imposed on him by the rules and regulations of said corporation.

"5. All deeds for the conveyance of lots or subdivisions, or certificates of shares of stock in said cemetery, shall be signed by the president of said corporation, and attested by the secretary, with the seal of the corporation attached; and the further certificate of the secretary that the president executed the same shall be deemed a sufficient authentication of said deed in all courts and places whatsoever, and may be recorded with like effect of other recorded deeds.

"6. It shall be lawful for said corporation to hold any grant or bequest of money or property, in trust, and to apply the same, or the income thereof, under the direction of said board, for the improvement of said cemetery, or any portion thereof, or in the erection of any tomb or monument, according to the terms of any such grant or bequest.

"7. Any person who shall willfully destroy, injure or remove any tomb or monument, or any gravestone placed in said cemetery, or shall willfully remove, destroy, cut, break or injure any fence around, or railing, fence, tree, shrub or plant within the limits of said cemetery, or shall willfully ride or drive any beast at an immoderate gait, or shall ride or drive over any lot or grave, or shall turn loose any animal in said cemetery, or shall shoot or discharge any gun or other firearms within the said limits, shall be deemed guilty of a misdemeanor; and upon conviction thereof before any justice of the peace, or court having jurisdiction of misdemeanors in the county of Jackson, shall be fined not less than five nor more than fifty dollars; and such...