Ex parte Bohen

The petitioner was convicted of violating an ordinance of the city and county of San Fran *373 cisco, and has sued out a writ of habeas corpus for the purpose of testing the validity of the ordinance. The ordinance is as follows:

Section 2 makes a violation of the ordinance a misdemeanor, and prescribes the penalty therefor.

The Odd Fellows’ Cemetery Association was incorporated in 1865, under the act of the legislature entitled “An act to authorize the incorporation of rural cemetery associations” (Stats. 1859, p. 281), and the petitioner is the president of the corporation, and the offense with which he is charged is that, as such president, he *374 executed a deed of conveyance of a lot of land within the tract of the cemetery, that had been sold by the association, and ttuereby aided and abetted in the violation of the ordinance. The validity of the ordinance is maintained on behalf of the people, upon the right of the municipality, when authorized thereto by the legislature, to restrict or prohibit burials within its limits, or within certain districts therein, and is resisted upon the ground that in the present case such authority has not been conferred upon the…

I dissent. If the future sale and purchase of lots for burial purposes cannot be prohibited unless all burials in lots already purchased are also prohibited, then it is evident that there can be no gradual progress toward the extinguishment of the cemetery evil. But an ordinance which would absolutely and immediately prohibit any further burial within the city would be a sudden and abrupt measure that would result in great confusion and distress. Ho such ordinance is likely to be passed; and yet, without such an ordinance, it seems to me that, under the opinion of the majority of the court, the cemetery evil must be perpetual. The ordinance in question operates uniformly upon all of the class who come within its provisions. The petitioner would be in no better situation if the ordinance had absolutely prohibited all future burials. As long as sales and purchases of lots for burial purposes are allowed, the cemetery evil will be greatly magnified, and its suppression made correspondingly more difficult.