§ 122d. Regulation of burial-grounds. — The burial of the dead within the limits of towns and cities has always been and still is, a common evil. In the past little attention was paid to sanitary regulations of any kind, and the injurious effect of the burial of the dead in thickly settled communities was seldom considered. But in some communities public opinion has been aroused on the subject, and laws have been passed, which prohibited interments within certain limits. In all the cases in which the constitutionality of this law was brought into question, it has been conceded that the legislature may regulate the burial of the dead, and prohibit it in those localities in which it will prove injurious to the public health; but it is doubtful how far such a police regulation may be prevented directly or indirectly, by agreements, that a cemetery shall be established in a given locality. In New York it was held that a grant of land by the municipal corporation, for the purpose of a cemetery, with covenants of quiet enjoyment, did not prevent the passage of an ordinance prohibiting interments in that part of the city. It was no impairment of a contract, as municipal corporations have no power to make a contract, controlling or taking away their police power. But it has been held in Illinois that the legislature has no right to prohibit the burial of the dead in the grounds of a cemetery company, which it has been authorized to lay out for that purpose. The court say: "A cemetery is not a nuisance per se and the subject of legislative prohibition. The legislature has the constitutional right to pass laws regulating the interment of the dead, so as to prevent injury to the health of the community, and this in respect to a private

1 Brick Presb. Church v. Mayor, etc., 5 Cow. 538; Coates v. Mayor, etc., 7 Cow. 585; Kincaid's Appeal, 66 Pa. St. 423 (5 Am. Rep. 377); City Council v. Wentworth St. Baptist Church, 4 Strobh. 310; Lake View v. Rose Hill Cemetery Co., 70 Ill. 192.

'Brick Presbyterian Church v. Mayor, etc., 5 Cow. 538; Coates v. Mayor, etc., 7 Cow. 585.

corporation acting under its charter, as well as with individuals. But the legislature cannot prohibit the burial of the dead in lands purchased and laid out at great expense by a corporation chartered for the purpose. Such a statute is unconstitutional, as impairing the obligation of the contract contained in the charter." The regulations of the burial of the dead have so far been confined to the prohibition of burial in the compact parts of a city, or within the city boundary. It is also held by some2 that a cemetery is not a nuisance per se, and consequently the interment of the dead cannot be prohibited altogether. Of late, the advocates of cremation of dead bodies have been urging the unwholesomeness of burial as a reason why cremation should be adopted in its stead, as a means of disposing of corpses. If the burial of the dead does not cause or threaten injury to the public health, burial could not lawfully be prohibited; but if it is proven to be a fact that the interment of dead bodies does injure the public health, and is a fruitful source of the transmission of disease, as it is claimed to be by many scientists, it cannot be doubted that the State may prohibit burial and compel the remains of the dead to be cremated, or disposed of in some other harmless way.

In addition to the regulation of the locality in which burial is permitted, there are usually some regulations concerning the manner of interment, the object of which is to prevent any deterioration of the public health, as, for example, that the grave must be of a certain depth, and that the interment shall not be made without special license from the health officer.

§ 122e. Laws regulating the construction of wooden buildings in cities. Another great danger, which threat

1 Lake View v. Rose Hill Cemetery Co., 70 Ill. 192 (22 Am. Rep. 71). See post for the general discussion of the restriction upon the exercise of police power contained in the charters of private corporations.

2 See Lake View v. Rose Hill Cemetery Co., 70 Ill. 192 (22 Am. Rep. 71).

ens all thickly settled communities, is that of more or less extensive conflagrations, resulting from accidental fires. Every house, everywhere, is subject in a greater or less degree to the danger of destruction by fire; but it is only when the buildings are closely built, that the danger of fire being communicated from an adjoining building becomes great enough to call for special regulations for preventing the spread of such accidental fires. The danger of destruction by fire is least when the buildings are constructed of more or less non-combustible material. It would probably be considered unreasonable to require all buildings to be absolutely fire proof, but it is a common regulation in the large cities to prohibit the erection of wooden buildings, or of buildings with wooden, or shingle roofs. This regulation has often been subjected to judicial criticism, and the constitutionality of it has invariably been sustained.1 The increase in the danger of a general conflagration, resulting from the construction of wooden buildings in the heart of a large city, furnishes ample justification for the regulation. But the proprietor has the right to erect on his lands whatever kind of buildings or other structures he may please, provided he does not, in doing so, threaten, or do, harm to others; and, as long as he does not put others in danger, he may even set fire to his own house, without committing any punishable wrong. While, therefore, it is lawful for the State to prohibit the erection of wooden

2

1 See Wadleigh v. Gilman, 12 Me. 403; Welch v. Hotchkiss, 39 Conn. 144; Vanderbelt v. Adams, 7 Cow. 349; Corp. of Knoxville v. Bird, 12 Lea, 121 (47 Am. Rep. 326). In the case of Knoxville v. Bird, a city ordinance, prohibiting the erection of wooden buildings, was sustained in its application to cases, in which a contract for the construction of the building was made before the passage of the ordinance, and remained unexecuted; the passage of the law against the erection of such buildings made illegal all contracts for their construction, and released all parties to the contract from the obligations there by assumed. Cordes v. Miller, 39 Mich. 581 (33 Am. Rep. 330).

2 Bloss v. Tobey, 2 Pick. 320; Hennesey v. People, 21 How. Pr. 239.

buildings in thickly settled communities, because of the danger of fire, it would certainly not be lawful to apply the same regulation to suburban and country property, on which the buildings are far apart; for the danger of a general conflagration is reduced to so low a minimum, that, if the danger existed at all, it could not be appreciably increased by the erection of wooden buildings.

§ 122f. Regulation of the right to hunt game. — It is a very common police regulation, to be found in every State, to prohibit the hunting and killing of birds and other wild animals in certain seasons of the year, the object of the regulation being the preservation of these animals from complete extermination by providing for them a period of rest and safety, in which they may procreate and rear their young. The animals are those which are adapted to consumption as food, and their preservation is a matter of public interest. The constitutionality of such legislation cannot be questioned.

- Destruction

of

§ 122g. Abatement of nuisances buildings. — Nuisances may always be abated. The fact of being a nuisance having been established, the thing may be destroyed, removed, or so regulated that it will cease to be a nuisance. In certain cases of extreme necessity, the private individual may, without the aid of government, abate or remove the nuisance; in other cases the government must through its proper department interfere. But in all these cases the interference with the enjoyment of private property, whether by the State or by the individual, must be justified by the proof of two facts, viz.: first, that the property, either per se or in the manner of using it, is a nuisance, and secondly, that the interference does not extend beyond what is necessary to correct the evil. To extend the exercise of the power of abatement, beyond the point of necessity, would make the interference unlawful. But

for the purpose of removing a nuisance, the State may go to any length, even so far as to destroy houses and other buildings, where they are in fact nuisances. If a house is falling into decay, and endangering the public safety, or it is irretrievably unhealthy, and consequently threatening evil to the public health, or is per se, for any other reason, a nuisance, it may certainly be destroyed, and it is not unusual to find municipal regulations of this character. But where the nuisance consists, not in the building itself, but in the use to which it is put, the building cannot be destroyed. The interference by the State must be confined to the prohibition of the wrongful use. A good illustrative case is to be found in the Michigan reports. The city of Detroit passed an ordinance, providing for the demolition of all buildings used for the purpose of prostitution. It was no doubt thought that, apart from being a severe punishment to the owners of the houses for letting them for this unlawful purpose, it would be a most effective effort to suppress the social vice, by destroying the buildings best adapted for carrying on the immoral trade. Whatever good motive may have induced the enactment of the ordinance, it was clearly unconstitutional, as being an interference with private property beyond what was necessary to abate or remove the nuisance, and such was the opinion of the Supreme Court of Michigan. In delivering its opinion, the court said: "It is said that the house was a nuisance. This may be very true; but it was a nuisance in consequence of its being the resort of persons of ill-fame. That which constitutes or causes the nuisance may be removed; thus if a house is used for the purpose of a trade or business, by which the health of the public is endangered, the nuisance may be abated, by removing whatsoever may be necessary to prevent the exercise of such trade or business; so a house in which gaming is carried on, to the injury of the

1 Theilan v. Porter, 14 Lea, 622 (52 Am. Rep. 173).