County of Los Angeles v. Hollywood Cemetery Ass'n
Before: Chipman
Synopsis
Cemetery—Lawful Avocation—Tendency not Injurious.—The establishment and maintenance of a cemetery for the burial of the dead, for the purpose of deriving profit therefrom, is a lawful avocation, which does not presumably have an injurious tendency.'
Id.—Nuisance—Police Power.—A cemetery cannot he regarded as a nuisance per se, in measuring the extent of the police power to regulate it, though cemeteries are within the power of reasonable regulation by cities, towns, and counties.
Id.—Reasonableness of Regulation — Population.— An ordinance passed pursuant to-the constitutional grant of power to make • police regulations may be reasonable as applied to the regula- ■ tlon of cemeteries by a city or town within its limits, which would be entirely umreasonable when put in operation in all ' parts of a county thinly populated in many of its parts.
Id.—Restriction of Individual Rights.—Any restrictions of the rights of individuals to pursue a lawful avocation, by virtue of the police power, must extend to all individuals who'might exercise that right within the same district.
Id.—Invalid County Ordinance—Unreasonable and Unequal Regulation— Arbitrary Will of Supervisors.—A county ordinance making it unlawful to establish, extend, or enlarge any cemetery within the limits of the county, without first obtaining permission of the supervisors, but impliedly permitting burials in cemeteries already established, without restriction, is both Unreasonable in making the right to pursue a lawful avocation depend upon the arbitrary will of the supervisors, and unequal in its operation, in assuming to limit the unrestricted privilege of burial to one class of citizens, and to deny it to another class within the same district, or to make the latter subject to the arbitrary will of the supervisors to grant or to refuse that privilege. Such ordinance is invalid, and cannot be enforced by the county.
CHIPMAN, C. Injunction to restrain defendant from establishing a cemetery upon certain lands and interring 'human bodies therein. The complaint shows that the supervisors of Los Angeles county duly passed an ordinance,' the first section of which reads: “It shall be unlawful to locate or establish, extend or enlarge, any cemetery, graveyard, burying-ground or crematory within the limits of the county of Los Angeles without the permission of the board of supervisors first had and obtained.” The second section directs how to apply for such permission and what facts shall be set forth in the petition therefor, and that thirty days’ notice of the hearing of the petition shall be given by publication' in some newspaper published in the county. The third and last section provides .for publication of the ordinance. It is alleged that since said ordinance took effect defendant has located and is now locating and establishing a cemetery (upon certain lands described) situated in said county, “without the permission of the said board of supervisors first had and obtained, and contrary to and in violation of all the provisions of said ordinance”; the complaint then sets out certain acts now being done by defendant in furtherance of its said purpose, and that it “will continue in the work of locating and establishing such cemetery, in violation of said ordinance .... and greatly to the injury of the entire neighborhood of the said location, unless restrained,” et cetera.
Defendant answered the order to show cause by general demurrer to the complaint and by certain affidavits, which latter were controverted by counter-affidavits. The demurrer was overruled, and the court granted an injunction as prayed for directing defendant to refrain from proceeding further to establish said cemetery and from burying any human bodies in the land [347]described. Defendant appeals from the order overruling the demurrer and from the judgment and order granting the writ and from the writ.
The demurrer admits the allegations of the complaint and raises the questions discussed by counsel. The trial court disposed of the case on the demurrer and on the sufficiency of the complaint. We shall, therefore, take no notice of the affidavits.
The contention of defendant is that the ordinance is violative of the fourteenth amendment of the federal constitution and of section 11, article I, and section 11, article XI, of our state constitution; and is an unreasonable exercise of the power to regulate, and therefore invalid. The ordinance before us simply makes it unlawful to establish a cemetery without using it for the burial of the dead; and the complaint does not charge in terms that defendant has used its land or is about to use it for the burial of the dead. Counsel on both sides, however, and the court as well, treat the ordinance and the complaint as aimed not only at the dedication or establishment of the cemetery, but also at the burial of the dead therein. We shall, therefore, assume that the broader meaning of the word “cemetery” is intended in the ordinance and the complaint.
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