In a very able motion for rehearing, the correctness of the view of the court expressed in the original opinion is challenged. Our views do not conflict with those of appellant on the point that we must assume that the title of Mrs. Gutecase in the cemetery lot was not that of a holder of realty in fee simple, but that it extended only to confer upon her a right of sepulture, which is an easement in rather than ownership to the land. Nicholson v. Daffan, 142 Georgia, 729; L.R.A., 1915-E, page 168 and notes Many of the authorities cited by the appellant relate to regulations of burials and cemeteries under that phase of the police power whereby cities are authorized by the Legislature to protect the public health. Among these are: The City of Austin v. Austin Cemetery Association, 87 Tex. 330 [87 Tex. 330], and Annotations, Rose's Notes on Texas Reports, vol. 4, page 569; Waldron's Petitions, 67 L.R.A., 118; Cemetery Association v. San Francisco, 27 L.R.A. (New Series), 260.
The subject here under consideration relates to the validity of regulations concerning the care and improvement of cemetery lots.
The penal clause of the ordinance is quoted in the original opinion. Section 4 of the ordinance contains the following:
"The owners of lots in said cemetery who may hereafter desire that the same be kept or attended shall pay to the City Manager, or to such person as may be designated by him, such sum as may be agreed upon by such owner and either the City Manager or the superintendent of Westhill Cemetery." This provision, construed in connection with others in the ordinance, indicates that by its terms the ordinance permits the owner of any lot or the relative within the third degree or any person buried in any lot in said cemetery to do work upon any such lot or to cause work to be done thereon through the instrumentality of an agent, without obtaining the consent of the superintendent, provided the agent selected receive no compensation for his service. By the ordinance, as we understand it, no restriction is placed upon the privilege of one having the right of sepulture to attend the lot in which he is interested in person or through an unpaid agent. The restriction takes place in consequence of the agent being a compensated one and not one acting gratuitously; and the legal question, as we conceive it, is whether this restriction is as a matter of law an unreasonable one.
The complaint charges that the relator did "dig, attend, and keep the grave and burial lot of Mrs. A.C. Gutecase, situated on the north half of Lot 5, Block 56, in West Hill Cemetery in the City of Sherman, for compensation paid and to be paid." It charges that this was done without the consent of the superintendent, was not *Page 20 under his direction, that the relator was not the owner of the lot nor a relative of any person buried therein, and that the owner of the lot had not paid the City Manager or any person designated by him any sum or sums of money theretofore agreed upon by such owner and the said Manager or the superintendent of said cemetery. We think that one of the attributes of the right of sepulture in a cemetery lot is the right in person or by another to visit and care for it. While the decisions of the court from which this principle is deduced deal with varying questions of fact, as we understand them they are uniform in recognizing the principle. One of the earliest cases at hand is Silverwood v. Latrope, by the Supreme Court of Maryland, reported in the 13 Atlantic Reporter, 161. This was a Civil case, and its final disposition turned upon a question of estopple by contract. It related to a controversy over rights in a cemetery lot, and from it we take the following quotation:
"Nothing is clearer than that if a man, in the transaction of his own business, has a right to do any act, he can perform it by the hands of his agent. The general maxim, as old as our system of jurisprudence, is that whatever a man sui juris may do of himself he may do by another, Co. Litt., 258. Had not this principle been always recognized, it is difficult to perceive how the multiform transactions of mankind could have been successfully conducted. The maxim, qui facit per alium facit perse, carries with it, by implication, a recognition of the right of every man, unless exercising certain delegated powers, and acting in a fiduciary capacity, to employ an agent in the transaction of his business. Therefore, when, by the terms of a deed or other instrument, a man has a right to do a certain thing, he can do it either with his own hands or by the hands of an agent, and if the agent is interfered with by the grantor, it is an interference with the rights of the grantee."
The case of Graves v. Bloomington, 67 Ill. 495, is one in which the superintendent of a public cemetery — governing which there was an ordinance prohibiting entry into the grounds after certain hours — was convicted of an assault on having ejected from the grounds a person who was there attending the grounds as the agent of an owner of a lot. In the decision it was said:
"The charter of the Association was produced, from which it is claimed that the Association is a purely private corporation, and that it may exclude any and all persons at pleasure. Granting that the character confers a private franchise, yet we think the use made of it must necessarily impress it with a public character in some degree. When lots are sold for burial purposes, the purchaser acquires the right to visit same and to improve and care for them. This may be done in person or by agent."
In the case of Nicholson v. Daffen, 142 Georgia, 729, a controversy in a civil suit over the rights of the owner of a right of sepulture, acquired while the cemetery belonged to a private corporation, it *Page 21 having subsequently come under municipal ownership, it is said "it would seem clear that the owner of a burial lot would have the right of personal superintendence so long as that superintendence did not work to the injury of the cemetery or other lot owners. If the lot owner had the personal right to work upon her lot, and as the rule of the Park and Tree Commission concedes, we can see no reason why she would not have the right to have the work done by a competent and skilful person of her own choosing. The Park and Tree Commission would have the right to pass any reasonable rule affecting the improvements in the lots; but it would seem to pass beyond the region of legitimate regulation to require of a lot owner that she buy her fertilizer from the Park and Tree Commission, and that no work would be permitted by a gardner of her selection, however, capable, and however proper the work may be done." Ashby v. Harris, L.R., 3 C.P., 523, 18 L.T.N.S., 719, 37 L.F. Mag. Cas. N.S., 164, 16 Week Rep., 869.
It is not claimed that the charter of the city of Sherman contains any express provision supporting the ordinance, but that the power to enact it exists under its general power conferred in its charter adopted under Chapter 147, Acts of the Thirty-third Legislature, which we regard as ample to authorize the enactment of reasonable regulations for the government of a public cemetery. See Ruling Case Law, Vol. 5, p. 239. The city, however, seeking to enforce its will by a penal ordinance, its validity must be tested by the rules of law governing that character of enactment. If it be conceded that the city might rightfully abridge the common right of lot owners so that they might not act through an agent, the power could be lawfully exercised only by an ordinance uniform in its application to persons of the same class, certain and definite in its terms, and not oppressive and unreasonable. See Ruling Case Law, vol. 19, pp. 805 to 809. As we conceive it, the ordinance in question is not uniform in its application to all owners of lots, but that by its terms it confers the power upon the subordinate officers charged with its administration, to arbitrarily discriminate against one lot owner and in favor of another. "No person," says the ordinance; "shall dig, attend, dress or keep any graves or burial lot in West Hill Cemetery for compensation paid or to be paid except under the direction and with the consent of the superintendent." The ordinance does not point out what must be done in a given case to entitle the owner to the consent of the superintendent, that his paid agent may do in the cemetery acts that he might lawfully do himself. It does not indicate that the superintendent must give any reason for his refusal to consent, but renders one who performs services without his consent subject to a criminal penalty. No owner, says the ordinance, shall through his paid agent attend his lot or bury his dead unless he pays the city manager or the superintendent such sum of *Page 22 money as may be agreed upon. The ordinance fixes no measure of compensation to the superintendent, it does not even say that his charge shall be reasonable, nor does it require that his charge for the same service to different persons be uniform. He is made the arbiter of the amount that shall be charged; is not only the terms of the ordinance required to limit it to a reasonable charge; and may arbitrarily withhold his consent to the services by the agent, even though the owner may be willing to pay bath the superintendent and the agent. On this general subject we quote from the text, page 813, vol. 19, Ruling Case Law, as follows:
"It is clear that if an ordinance is passed by a municipal corporation which upon its face restricts the right of dominion which the individual might otherwise exercise without question, not according to any general or uniform rule. but so as to make the absolute enjoyment of his own depend upon the arbitrary will of the governing authorities of the town or city, it is unconstitutional and void, because it fails to furnish a uniform rule of action and leaves the right of property subject to the despotic will of the municipal officers, who may exercise it in accordance with some principle which it would not be within the constitutional power of the state to sanction or even so as to give exclusive profits or privileges to particular persons."
Many of the authorities are cited in support of the text under note 5, among them Yick Wo. v. Hopkins, 118 U.S. Supreme Court, 358; 30 Law Edition, 220.
An ordinance of the character mentioned is regarded as unreasonable and void upon the ground that it is oppressive, in the text of Dillion on Municipal Corporations, vol. 2, Sec. 592, Specific instances in which ordinances violating the principle named above held invalid, will be found in Baltimore v. Radechke, 49 Maryland, 217; Cicero Lumber Co. v. Cicero, 176 Ill. 9; Richmond v. Dudley, 129 Indiana, 112; Elkhart v. Murray, 165 Indiana, 304; Hagerstown v. Baltimore Ohio Ry. Co., 107 Maryland, 178; Commonwealth v. Malatsky, 203 Massachusetts, 241; New Weberim v. McCann, 105 Tennessee, 159. The arbitrary power vested in the superintendent of the cemetery in the present ordinance we think classifies it as unreasonable and void upon the application of the principle stated; and we regard it as our duty to so declare it. See Encyclopedia of Law and Procedure, vol. 28, pages 368 and 369; Ex parte Battis, 40 Tex. Crim. 112.
The appellee suggests that this proceeding, being a collateral attack upon the judgment of conviction, the presumption of validity is to be indulged in favor of the judgment. This rule is well established. It is only a void judgment that may be so attacked. See Ex parte McKay, 82 Tex.Crim. Rep., 199 S.W. Rep., 638.
The appellant's principal is recognized in the prosecution as a lot owner in the cemetery, and appellee contends that on the trial *Page 23 in the County Court it may have been proved that there were restrictions in her deed which would have rendered the judgment valid. We conceive of no restriction which would have justified the passage of an ordinance which would confer upon the superintendent of the cemetery the arbitrary power which it conferred upon him in the one in question; and conceding that the relator, acting for her, attended the grave upon the lot of Mrs. Gutecase without the consent of the superintendent, we are aware of no defense that would have been available to her on her trial. If the ordinance is valid, the fact that the relator performed the work for hire without the consent of the superintendent would conclude the case against her. It would be futile for her to urge upon the trial that she was a proper person to perform the work, sought to perform it within the proper hours, was able and willing to submit and conform to the direction of the superintendent, that she was skilful and willing to observe all proper regulations with reference to the manner in which the work was to be done. It occurs to us that the purpose of the ordinance was not to preserve the symmetry and beauty of the cemetery, and to insure order and system and skill in the performance of work therein. This we infer from the fact that under the terms of the ordinance, relator, without obtaining the consent of the superintendent, would have been permitted to do the work that she was doing provided only she was doing it gratis and not for compensation.
After the most painstaking and careful consideration of the motion for rehearing of which we are capable, we are not able to coincide with the views of the appellee. We therefore adhere to the conclusion that the judgment should be reversed and the relator discharged. The motion for rehearing is overruled.
Overruled.