La Societa Italiana Di Mutua Beneficienza v. City & County of San Francisco

HAYNES, C.

Defendants’ demurrer to plaintiff’s complaint was sustained, and judgment thereon entered against the plaintiff, who appeals from said judgment. The other defendants are the mayor, the board of supervisors, the board of health, and the individuals composing said boards, and the health officer of the city and county of San Francisco; and the principal question involved is the validity of an ordinance of said city passed by the board of supervisors in June, 1897, and approved by the mayor, and which, with the preamble, is as follows:

“Whereas, the burial of the dead within the oity cemetery is dangerous to life and detrimental to public health, therefore the people of the city and county of San Francisco do ordain as follows:

“Section 1. Burials within the city cemetery prohibited.— It shall be unlawful for any person, association, or corporation from and after the first day of January, 1898, to bury or inter, or cause to be buried or interred, the dead body of any person in the city cemetery of the city and county of San Francisco.”

The second section declared a violation of this order to be a misdemeanor, punishable by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment not exceeding six months, or by both fine and imprisonment. The time when this ordinance should take effect was afterward extended to March 1, 1898.

Briefly stated, the complaint alleges the following facts: That'

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plaintiff is an incorporated benevolent society, having for one of its purposes the maintenance and care of the sick who are members of the corporation; that since its incorporation in the year 1867 a large number of deaths have occurred among its members; that of the members so dying a number averaging about twenty-five per year were poor, and their bodies, by reason of their membership or for other reasons, are eared for and buried by the plaintiff at its expense; that, in January, 1879, the said city and county, being the owner of a tract of land designated on the official map of said city and county as the “Golden Gate Cemetery,” adopted a resolution Ho. 13,244 (new series), and thereby granted to the plaintiff blocks numbered 9 to 21, inclusive—part of said Golden Gate Cemetery—for burial purposes, “on condition that plaintiff should construct and maintain such walls or fences and make such improvements as might thereafter be designated or required by said board of supervisors on and around the lots so granted as aforesaid”; that plaintiff accepted the said grant and said conditions; that by a subsequent resolution (Ho. 13,479),- adopted in 1879, plaintiff was required to enter into an agreement whereby it undertook, in the sum of five hundred dollars, with two good and sufficient sureties, to perform all the requirements of said first-named resolution, and particularly to construct and maintain said walls or fences, and to make such improvements as might be required by said board, and also that plaintiff should pay its pro rata assessment for the improvement of the avenues of said Golden Gate Cemetery; that plaintiff has performed all of said conditions, and has used said land for said burial purposes, and has expended a large amount of money in mailing said improvements, aggregating not less than two thousand dollars; and that the Golden Gate Cemetery is now known as the “City Cemetery,” and is so designated in said ordinance. The prayer is for the annulment of said ordinance, that plaintiff’s title be quieted, for an injunction, and other relief.