The governing body of the city of Sherman enacted an ordinance of which Sec. 3 is as follows:
"That if any person whomsoever shall hereafter dig, attend, dress or keep any grave or burial lot in West Hill Cemetery in the City of Sherman for compensation, paid or to be paid, directly or indirectly, except under the direction and with the consent of the Superintendent of said Cemetery to be appointed as provided by this ordinance, he shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than one dollar nor more than ten dollars. Provided, that nothing in this ordinance shall prevent the owner of any lot, or the relative within the third degree of any person buried in any lot in said Cemetery, from doing work upon or connected with any such lot."
The relator is under conviction for violation of the ordinance and seeks release on original application for habeas corpus, claiming that the ordinance is void. The caption of the ordinance is as follows:
"An ordinance providing for the proper care of West Hill Cemetery, making it a misdemeanor for persons other than employees of the City of Sherman to do any work therein for the purpose of digging graves or dressing and keeping the lots therein. And prescribing a penalty therefor."
We are of opinion that the criticism addressed to the ordinance, based on the view that the caption states a double purpose, is not sound. This conclusion is emphasized by the fact that the rules testing the constitutionality of statutes in this particular are not generally applied to ordinances. Morris v. State, 62 Tex. 728; Dillon on Mun. Cor., Secs. 72 and 577; Craddock v. City of San Antonio, 198 S.W. Rep., 634. The power of municipal bodies under legislative authority to adopt reasonable regulations with reference to public cemeteries is not to be questioned. Ruling Case Law, Vol. 5, p. 239, and cases cited. Their validity, like other police regulations where not exceeding constitutional limitations, is tested by their reasonableness as applied to the subject to which they relate. Austin v. Austin City Cem. Assn., 87 Tex. 330; note, Sutton v. Finley, Am. Eng. Ann. Cas., 1917-B, p. 563; not, Womberly v. Womberly, 3 L.R.A. (N.S.), 481. It is true also that police regulations affecting the conduct of legitimate occupations have often been upheld, but the legislative authority thereby to prohibit a useful and harmless avocation is denied. Tiedeman on Lim. Police Power, Sec. 102: Freund on Police Power, Sec. 492. Wyeth v. Cambridge Board of Health, 200 Mass. 474, 23 L.R.A. (N.S.), 147, is one giving application of this rule to avocations relating to cemeteries. Regulations upon the subject are sustained upon the view that their enactment is to preserve the public health. 6 Cyc., 708.
In considering the decided cases there is some distinction that must be noted with reference to the right of sepulture in a cemetery established and maintained by municipal authorities and such *Page 17 right as modified by private contract. See Am. Eng. Ency. of Law, Vol. 5, p. 785 and p. 789; Corpus Juris, Vol. 11, p. 62; Houston Cemetery Co. v. Drew, 13 Texas Crim. App., 536, 36 S.W. Rep. 802. We believe the following definition applicable to both, it may be said: "A cemetery is a place set apart either by municipal authority or private enterprise for the interment of the dead. The term includes not only lots for depositing the bodies of the dead but also avenues, walks and grounds for shrubbery and ornamental purposes." Evergreen Cemetery Assn. v. New Haven, 43 Conn. 234, 21 Am. Rep., 643; Creig v. First Pres. Church, 32 Am. Rep., 417; Ruling Case Law, Vol. 5, p. 234. Our statute relating to cemetery corporations, Chap. 23, Title 25, Sayles' Texas Civ. Stats., Vol. 1, in Art. 1294 declares that the board of directors shall have authority to make reasonable rules requiring lot owners to keep their lots clean from improper growth so as to preserve good order and proper appearance of the grounds, but shall not have power to require of any lot owner a particular character of improvement thereon. All expressions from the courts, as far as they have come to our notice, seem to recognize the fact that a cemetery is not only a place where the dead may be buried, but it is also one in which the living may give expression to their affection and respect of the dead by marking and decorating the place of interment and beautifying its surroundings. In other words, the right to enter the grounds for the purpose of burying the dead under reasonable restrictions and regulations is accompanied by the right to care for the grave subject to like reasonable regulations. Neither of these rights, however, in our opinion, are such as require the personal attention of those in whom they inhere. The correct principle, we think, is stated by one of the appellate courts of the State of Illinois in the opinion of Ritchey v. Canton 46 Ill. App. 187, as follows.
"One of these rights is the privilege of interring therein the bodies of her dead by her own hand, if she likes, or by the hand of such sympathetic neighbors or friends as may volunteer their services, or by whom she may employ for that purpose. The city may by ordinance establish such regulations concerning the manner of digging the grave, its depth, etc., and the interment, as are reasonable in their character and necessary for the protection of the public health and welfare, and she or those who make the grave for her must conform to such regulations. Her right, however, to make a grave in her own lot and inter therein the body of her deceased daughter cannot, by ordinance, be made dependent upon the permission of the city sexton, nor can he claim by virtue of the ordinance exclusive right to make the grave for her, even for reasonable compensation. The appellant was acting at the request of Mrs. Rush, and as she might lawfully do by another that which she might lawfully do herself, he cannot be held amenable to an ordinance that was not effective as to her." *Page 18
Touching an ordinance in some respects similar to the one in question, we are referred by respondent to the case of State v. Scoville, 61 Atl. Rep., 63, which tends to support the theory of the validity of the terms of the ordinance in question. It is illustrative, however, of the fact that the decisions of courts upon the subject are not in complete harmony. The New York case of Johnston v. Parker, 59 N.Y. Sup., 821, and 60 N.Y. Sup., 1015, passed on and held invalid an ordinance in practically the same terms as the one in question, and one quite similar was held unreasonable by the Supreme Court of California in the case of Los Angeles v. Hollywood Cemetery Assn., 71 Am. St. Rep., 75. Others in line are Silverwood v. Latrobe, 13 Atl. Rep., 161, and State v. Chicago, 64 Am. St. Rep., 482.
It was charged against relator that she did dig, attend and keep the grave and burial lot of Mrs. A.C. Gutecase for compensation without the consent of the superintendent, she, relator, not being the owner of the lot nor related to the persons buried therein. The owner of the lot, Mrs. Gutecase, having the right of sepulture, possessed the privilege of keeping and attending the grave and burial lot, observing all reasonable regulations with reference to the character of the work done, and the possession of such privilege carried with it the authority to employ another to do therein the things that she might lawfully herself do. There is no complaint that relator, in the performance of the work, was transgressing any reasonable regulation with reference to its charter, or was doing anything that might not have been lawfully done by the owner. The ordinance and conviction are based upon the theory that the privilege of the owner of the lot to attend it might be lawfully restricted to personal attention, and that the right to do so by an agent might be arbitrarily denied by the superintendent of the cemetery. The ordinance fixes no standard of compensation to the superintendent, nor rule to determine what is required to obtain his consent to attend the lot through an agent. We believe that one having the right of sepulture, desiring to mark or beautify the grave of one to whom he is drawn by ties of respect, kinship, or sympathy, may exercise the privilege of responding to these sentiments either in person or through the agency of another of his own selection, observing always the reasonable regulations as to the character of the means used in the care of the grave of his dead, and the agent performing this service being engaged in a useful and harmless avocation and performing an act which his principal had the lawful right to perform, cannot be made subject to a penalty therefor.
The relator is discharge.
Relator discharged.