I concur in the judgment. The power of the authorities to prohibit burials in established cemeteries within the corporate limits of a city is unquestioned. That power, however, is not to be exercised arbitrarily, but is to be reasonably employed for the accomplishment of the appropriate end in view, — the sanitary welfare of the community, whose health is or may be threatened or endangered by the continuance of burials. Taking notice of the limited area of the city and county of San Francisco, its great and constantly increasing population, and the location of the plaintiffs' cemeteries, it will not be said that the prohibiting of future burials within them is not demanded as a sound sanitary measure. The ordinance in question, therefore, at least to the extent to which it seeks to accomplish this end, is valid, and this determination disposes of all of the asserted rights of the plaintiffs.
I am not able, however, to agree with what seems to be the view of the prevailing opinion, that in its fullest scope the ordinance is reasonable and legal. It prohibits burials, not alone in all existing cemeteries, but also in "all other places within the city and county." It is the duty of the authorities of a county to secure to its inhabitants places of burial for their dead, and it is the corresponding right of the inhabitants to bury their dead with as little inconvenience and expense as the circumstances will permit. The county authorities *Page 237 therefore, may not arbitrarily refuse to permit the burial of the dead within the county limits, and any ordinance which purports so to do must be, as to its reasonableness, the subject of judicial review. Otherwise, if one county might, all might, and there would be imposed upon the inhabitants of the state the forced necessity of cremations, burials at sea, or other modes of disposition repugnant to their feelings and repellant to their religious views. It must follow, therefore, that so sweeping an ordinance as the one under consideration is, in a proper case, subject to judicial consideration as to its reasonableness or unreasonableness. It is pleaded in the complaint that there are within the limits of the city and county of San Francisco tracts of land suitable for cemetery purposes, which could be used as such without in the slightest degree endangering the public health. The question thus presented is either one calling for evidence or one of which the court takes judicial notice. If it be the former, the allegation was proper. If it be the latter, then judicial notice may be taken of the fact that there are tracts of land within the corporate limits of the city and county, with direct drainage to the ocean, which could be employed for cemetery purposes without in the least threatening the sanitary well-being of the community. True, there are no cemeteries established, or so far sought to be established, upon any such tracts of land, and the question, therefore, becomes unimportant for decision in this case. Its determination here would in no way affect the rights of these plaintiffs, but it may become of consequence in the future, and should not, therefore, I think, be thus decided here where none of the rights of the plaintiffs are involved in its determination.