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Subject Area: Law
Topic: The American Revolution and Constitution

§ 149.: Regulation of burial-grounds.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 149.

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 prohibit 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;2 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.1 The fact, that the cemetery is the property of a municipal corporation, does not affect the power of the legislature to prohibit further interments therein, if such future use of the cemetery threatens the public health.2

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 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.”3

The prohibition of future burials of bodies in a cemetery is a very different regulation from one, which requires the removal of the bodies which have been buried there prior to the enactment of the prohibitory statute, the removal of monuments and vaults, and the conversion of the cemetery into a public park or its devotion to some other public use. While it may be true that the presence of the bodies, which have been already interred, may be just as prejudicial to the health of the community, as any future interment would be; in the former case, there is something more than the mere question of property right. In the estimation of most people, the ground, in which their loved ones have been buried, becomes hallowed; and they consider it a sacrilege to devote such land to any other purpose. If, in any case, the presence of the bodies already buried were to be considered so injurious to the public health, as that the removal of this cause of danger to health is imperatively demanded, the same end can be attained by compelling the exhumation and cremation of the bodies, and the reburial of the ashes, without offending the almost universal sentiment, that a cemetery is hallowed ground, by converting it into a public park, or devoting it to some other unhallowed use. But the authorities do not generally take this view of the matter. While the New Jersey Supreme Court has held that a law was unconstitutional, which provided for such a conversion of a cemetery;1 the authorities, generally, seem to justify such an exercise of the police power. But, in order that the cemetery may be so taken, the land must be purchased by the city, in the exercise of the right of eminent domain.2

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 some1 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.

[2]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; Pfieger v. Groth (Wis. ’99), 79 N. W. 19; People ex rel. Oak Hill Cemetery v. Pratt, 60 Hun, 582; 14 N. Y. S. 551; City of Austin v. Austin City Cemetery, 87 Tex. 330; Humphrey v. Board of Trustees of M. E. Church, 109 N. C. 132; City of Newark v. Watson, 56 N. J. L. 667. But it has been held that a city, county or town cannot prohibit or suppress cemeteries, under a charter power to institute police regulations. Los Angeles County v. Hollywood Cemetery Ass’n, 124 Cal. 344.

[1]Brick Presbyterian Church v. Mayor, etc., 5 Cow. 538; Coates v. Mayor, etc., 7 Cow. 585.

[2]City of Newark v. Watson, 56 N. J. L. 667.

[3]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.

[1]Stockton v. City of Newark, 42 N. J. Eq. 531.

[2]Scovill v. McMahon, 62 Conn. 378; Brooks v. Taynton, 40 N. Y. S. 445; Woodmen Cemetery v. Roulo, 104 Mich. 595; City of Columbus v. Town of Columbus, 82 Wis. 374; Humphrey v. Board of Trustees M. E. Church, 109 N. C. 132.

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