The opinion
RUDKIN, Circuit Judge
(concurring).
If the forcible removal of cemeteries from the corporate limits of large cities can ever be justified where the public health is not involved, there was ample ground for the removal here, under the admitted facts. The court below so conceded, for the purpose of its decision at least, but, inasmuch as there are four cemeteries in the same locality, and provision has been made for the removal of only two of them, the court declared the removal ordinance invalid, because it could find no substantial reason for the different treatment applied to the two groups of cemeteries. If the question whether there is any substantial basis for the apparent discrimination between the different cemeteries is a material one, I agree with Judge DIETRICH that the temporary injunction should remain in force until that question has been determined on the final hearing. And if the appellant relies on any sueh substantial basis for the discrimination, it should, have tried that question out in the court below before appealing to this court. In any event, it would have been the safer practice to pursue the latter course, because a failure to do so may eventually result in a reversal of the judgment and a further delay. But the question has been fully presented on the present appeal, and, if as a matter of law the apparent discrimination is immaterial, no good can result from a retrial of that issue in the court below. In my opinion, the consideration referred to is not a material one. The only discrimination claimed is based on mere inaction as to the other cemeteries, and it should be presumed that the municipal authorities will order their removal whenever the public good or public necessity demand it. The mere failure on the part of the city to order the removal of upwards of 100,000 dead bodies from all of these cemeteries, at one and the same time, is not in my opinion a discrimination in favor of or against any of them. The validity of the ordinance has not been successfully challenged, and for that reason I concur in the judgment of reversal.