# Odd Fellows' Cemetery Ass'n v. City & County of San Francisco

> California Supreme Court · September 16, 1903 · 140 Cal. 226

URL: https://www.frixlaw.com/law-library/cases/3298643

## Case

- **Full name:** ODD FELLOWS’ CEMETERY ASSOCIATION, MASONIC CEMETERY ASSOCIATION, and HENRY PLAGEMAN, Appellants, v. CITY AND COUNTY OF SAN FRANCISCO Et Al., Respondents
- **Court:** California Supreme Court
- **Decided:** September 16, 1903
- **Citations:** 140 Cal. 226; 73 P. 987; 1903 Cal. LEXIS 582
- **Precedential status:** Published
- **Opinion:** Concurrence by Beatty
- **Judges:** Henshaw, Beatty, Shaw
- **Cited by:** 68 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3298643

## Opinion text

BEATTY, C. J., concurring.
I concur in the judgment and generally in the opinion of Justice Shaw. I think, however, the opinion states one or two propositions more broadly than necessary for the decision and in terms which hereafter may be found to require some qualification. For the purposes of this case it is sufficient to say that the prohibition of future burials within city limits is a valid exercise of the powers vested in the governing body of a municipal corporation, and to determine the occasion for the exercise of such powers is a matter committed to their discretion by the constitution of the state. With the exercise of such discretion the courts cannot
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and ought not to interfere. The ordinance being valid on its face, the facts alleged in the complaint for the purpose of invalidating it were not admitted by the motion for judgment on the pleadings. That motion, like a demurrer, admits only such facts as the plaintiff would be allowed to prove, and admits no legal conclusions.
The difference between this ordinance and a similar ordinance passed by a county is manifest. The counties in the aggregate embrace all the territory of the state. If one county could forbid burials anywhere within its limits, every other county could do the same, and so by a succession of local ordinances the general laws allowing and enjoining burials could be defeated. But as to cities and towns the case is different (and San Francisco is none the less a city because the boundaries of the county are identical with those of the city). Cities and towns are of restricted area, embracing in the aggregate hut a small fraction of territory of the state, and the density of population within their comparatively narrow limits is a reason generally if not universally recognized for prohibiting the burial of the dead in such close proximity to the habitations of the living.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3298643. Public record. Not legal advice.