On Motion for Rehearing.
MORROW, J.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 sepulchre, which is an easement in rather than ownership to, the land. Nicolson v. Daffin, 142 Ga. 729, 83 S. E. 658, L. R. A. 1915E,-p. 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 City of Austin v. Austin Cemetery Association, 87 Tex. 330, 28 S. W. 528, 47 Am. St. Rep. 114, and Annotations, Rose’s Notes on Texas Reports, vol. 4, p. 569; Waldron’s Petitions, 26 R. I. 84, 58 Atl. 453, 67 L. R. A. 118, 106 Am. St. Rep. 688; Cemetery Association v. San Francisco, 152 Cal. 464, 93 Pac. 70, 27 L. R. A. (N. S.) 260,14 Ann. Cas. 1080.
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 quot*225ed 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,1 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 West Hill Cemetery.”
This provision, construed in connection with others in the ordinance, indicates that by its terms the ordinance permits the own 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 services. By the ordinance, as we understand it, no restriction is placed upon the privilege of one having the right of sepulchre 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 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 sepulchre 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. Latrobe, by the Supreme Court of Maryland, reported in 68 Md. 620, 13 Atl. 161. This was a civil case, and its final disposition turned upon a question of estoppel 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. Lift. 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 per se, 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 ease of Graves v. Bloomington, 67 Ill. App. 495,' is one in which the superintendent of a public cemetery,1 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 charter 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 purchasers certainly acquire the right to visit the same and to improve and care for them. This may be done in person or by agent.”.
In the case of Nicolson v. Daffin, 142 Ga. 729, 83 S. E. 658, L. B. A. 1915E, 168, a controversy in civil suit over the rights of the owner of a right of sepulchre, acquired while the cemetery belonged to a private corporation, it 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, 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 -skillful 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 gardener of her selection, however capable, and however properly the work may be done.” Ashby v. Harris, *226L. R. 3 C. P. 523, 18 L. T. N. S. 719, 37 L. E. Mag. Cas. N. S. 164, 16 Week. Rep. 869.
[10,11] It is not claimed that the charter of the city of Sherman contairis 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 Eegislature (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1096a-1096i), 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, 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, 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 grave 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 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 by 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 both the superintendent and the agent. On this general subject we quote from the text, page 913, 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. 358, 6 Sup. Ct. 1064, 30 L. Ed. 220.
An ordinance of the character mentioned is regarded as unreasonable and void, upon the ground that it is oppressive, in the text of Dillon on Municipal Corporations, vol. 2, § 592. Specific instances in which ordinances violating the principle named above, held invalid, will be found in Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239; Cicero Lumber Co. v. Cicero, 176 Ill. 9, 51 N. E. 758, 42 L. R. A. 696, 68 Am. St. Rep. 155; Richmond v. Dudley, 129 Ind. 112, 28 N. E. 312, 13 L. R. A. 587, 28 Am. St. Rep. 180; Elkhart v. Murray, 165 Ind. 304, 75 N. E. 593, 1 L. R. A. (N. S.) 940, 112 Am. St. Rep. 228, 6 Ann. Cas. 748; Hagerstown v. Baltimore & Ohio Ry. Co., 107 Md. 178, 68 Atl. 490, 126 Am. St. Rep. 382; Commonwealth v. Maletsky, 203 Mass. 241, 89 N. E. 245, 24 L. R. A. (N. S.) 1168; Newbern v. McCann, 105 Tenn. 159, 58 S. W. 114, 50 L. R. A. 476. 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, pp. 368 and 369; Ex parte Battis, 40 Tex. Cr. R. 112, 48 S. W. 513, 43 L. R. A. 863, 76 Am. St. Rep. 708.
[12,13] 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, 199 S. W. 638.
[14] The appellant’s principle is recognized in the prosecution as a lot owper in the cemetery, and appellant contends that on the trial in the county court there may have been proved that there were restrictions in her deed which would have rendered the judgment valid. We conceive of no restriction *227which 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 ease 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 skillful and willing to observe all proper regulations with ref-
erence 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.