# Masonic Cemetery Ass'n v. Gamage > Court of Appeals for the Ninth Circuit · March 10, 1930 · 38 F.2d 950 URL: https://www.frixlaw.com/law-library/cases/9650994 ## Case - **Full name:** MASONIC CEMETERY ASS’N Et Al. v. GAMAGE Et Al. - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** March 10, 1930 - **Citations:** 38 F.2d 950; 71 A.L.R. 1027; 1930 U.S. App. LEXIS 2423 - **Precedential status:** Published - **Opinion:** Dissent by Dietrich - **Judges:** Dietrich, Rudkin, Wilbur - **Cited by:** 6 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/9650994 ## Opinion text DIETRICH, Circuit Judge (dissenting). Aside from the very doubtful question whether the cemetery is an abatable nuisance, in my judgment, the ground upon which the court below held the municipal resolution or legislation invalid is a most serious one. Apparently the conclusion of the majority is predicated upon the proposition that, however arbitrary, unreasonable, or discriminatory sueh legislative action may be, the courts are powerless to afford relief. That far I am unwilling to go. Appellants are able to make no suggestion, even by way of intelligent surmise or conjecture how any distinction can be drawn between the two cemeteries classified as nuisances and the two excluded. If one is a nuisance, necessarily they are all nuisances. I am not unmindful that in judicial proceedings for abatement it is no defense that all nuisances of like character are not embraced in a single action. In the'nature of things, sueh a course is not ordinarily practicable, for the nuisances are several, and for their maintenance there is no joint responsibility, hence no joint action. It follows that from a court proceeding assailing but one of a number of nuisances of the same character, there is no inference or presumption of intended discrimination. But a legislative body is subject to no sueh limitations. Here, unless there was intended favoritism and discrimination, the record discloses no reason at all why the legislative order or resolution was not made to apply to the four instead of only two of the cemeteries. In the absence of some showing, it is to be inferred or presumed the difference in treatment was intended to be discriminatory and arbitrary. In one of the opinions it is suggested, as an imaginable reason why action was taken against only two of the cemeteries, that the total number of bodies buried in the four is very great, and that the municipal authorities may have deemed it impracticable to remove all at once. I say imaginable, for neither in the record nor the brief of appellants do I find sueh an explanation intimated. Of course some reasonable length of time must be allowed for the removal, even though the ordinance be directed against but one cemetery, and accordingly we find that under the ordinance in question two years’ time is given. But if the city authorities intended no discrimination, why not at the same time direct removal from all the cemeteries pro rata over a reasonable period, or at least direct removal from all, in some prescribed order, thus disclosing the intent that in the end all four shall have substantially the same treatment. But again, why, in the present posture of the case, indulge a presumption upon a *958 subject that might be cleared up by evidence adduced upon a final and full hearing? It is also suggested in one of the opinions that, if, other conditions being the same, such legislation 'prohibited further burial in the two cemeteries, but in that respect placed no restriction upon the other two, “there might be just claim of discrimination upon which the power of the court might be invoked.” If that view be correct, how, logically or in principle, can it be held that the court is powerless here? Assuming that in the supposed case the nuisances are of a more offensive type than those herein involved, is it to be held that a court may protect, against discriminatory treatment, an owner who uses his property for purposes clearly constituting a nuisance, but is powerless to protect, against like treatment, an owner whose use, if offensive at all, constitutes a nuisance of a much less objectionable type? Apparently, in justification of the discriminatory legislation, it is further suggested that “the removal of any one of the cemeteries would greatly relieve the situation.” Assuming that in their collective effect they present a situation constituting a nuisance, it may be true that the removal of only one, even though, as here, that one be the oldest and the smallest, would afford some relief. But, under like reasoning, where there are four soap factories on the same block, all operating in substantially the same way and all emitting odors equally offensive to the surrounding neighborhood, may not the legislative body, with impunity, order the smaller and older ones to move out but leave the larger ones unmolested? Among the eases I have examined I have found none where, as here, the legislative body has singled out for adverse action one property of a group of several, all alike in point of both location and use. There is scarcely a pretension that this is a “zoning ordinance,” but, even as to such legislation, the Supreme Court of the United States in Reinman v. Little Rock, 237 U. S. 171, 177 , 35 S. Ct. 511, 513 , 59 L. Ed. 900 , has used this carefully guarded language: “While such regulations are subject to judicial scrutiny upon fundamental grounds, yet a considerable latitude of discretion must be accorded to the lawmaking power; and so long as the regulation in question is not shown to be clearly unreasonable and arbitrary, and operates uniformly upon all persons similarly situated in the particular district, the district itself not appearing to have been arbitrarily selected, it cannot be judicially declared that there is a deprivation of property without due process of law, or a denial of the equal protection of the laws, within the meaning of the 14th Amendment.” To me it seems impossible to bring the legislation under consideration within the restrictions thus implied. Upon the record as it stands, I think plaintiffs are entitled to relief. It might be that ultimately upon a full showing the legislation could be sustained, but, if so, manifestly it must be done by a careful application of general principles to facts which, at most, will not afford a broad basis upon which to rest a holding of validity. I therefore think the temporary injunction should be continued in force and the parties put to their proofs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650994. Public record. Not legal advice.