The opinion
Strahan, J.,
on rehearing.—Counsel for respondent on this *478 application contend that the city of Portland could not, by prohibiting the burial of the dead within the corporate limits of the city, destroy the alleged condition upon which the city held the property, and thus by her own act defeat the condition and hold the property freed from it. All of the authorities cited in the opinion as to the effect of a condition, if unlawful when made, or if it become afterward unlawful, are against counsel’s position. But by oversight the opinion does not contain a clear statement of the facts on this point. Section 12 of ordinance No. 3983 makes it penal to inter a dead body in any lot, place, or premises within the corporate limits of the city of Portland. This ordinance was passed and approved on the thirteenth day of October, 1883. At that time the demanded premises were not within the corporate limits of the city; but afterwards, on the twenty-fifth day of November, 1885 (Acts 1885, pp. 103, 104), the legislature passed an act enlarging the boundaries of the city so as to include the property in controversy. The ordinance prohibiting the burial of the dead within the corporate limits of the city thus became operative over the new territory included in the city, but not by the act of the corporate authorities of the city of Portland.
It was by the act of the legislature, extending and enlarging the corporate limits of the city, that said ordinance was made to affect the property in controversy. I think the effect would be the same in either case; but under these facts it cannot be said that the ordinance in question was made operative on this property by the immediate act of the city or its officers.
I have carefully re-examined the conclusions already announced and do not find any sufficient reason to change or modify them. The motion for rehearing must therefore be denied.