delivered the opinion of the Court:
This bill was filed by the town of Lake View, to restrain the cemetery company from using certain lands, owned by it since 1860, for the burial of the dead, in violation of the act of March 29, 1869. Appellee was created a corporation by the act of the 11th of February, 1859, with power to acquire, hold and use lands, not exceeding five hundred acres, in the town of Lake View, for cemetery purposes. The company was authorized, by its charter, to lay oif and plat its grounds, to erect all necessary buildings, and to do all other acts that might be necessary to prepare them for the purposes intended. Its organization was completed, and a part of the lands purchased were inclosed and platted, and large sums of money have been expended in beautifying and preparing the grounds. The lands are situated near the lake shore, about seven miles north of the court house in the city of Chicago, and three or four miles north of the northern limits of the city. The town of Lake View contains about 8400 acres of land and 1500 inhabitants, but there are few dwellings near the cemetery. „ .
In 1867, the corporate authorities of the town of Lake View passed an ordinance fixing the boundaries of the Rose Hill Cemetery, and its provisions were re-enacted by the act of the legislature, approved the 29th of March, 1869. The lands, which are the subject of this litigation, are situated outside of the limits, as fixed by the ordinance of the town and the act of the General Assembly, and it is made unlawful for the company to use them for cemetery purposes, as by its charter previously granted it was authorized to do.
The validity of the legislation restricting the cemetery company from enlarging its grounds, is the principal question in the case. While appellee claims its charter is in the nature .of a contract that the State can not rescind or impair, it is conceded the State has the power to control the use of its lands for burial purposes, so that its use may not injuriously affect the health of the community, but the right to pi’ohibit the company altogether from its use for the objects designated in the charter, is denied.
On the part of appellant, it is not denied, the charter of appellee is a contract on the part of the State, that the company may exercise the powers and privileges enumerated in the act of the General Assembly, but it is insisted it must be understood to have been made with reference to the possible exercise of the rightful authority of the government, and that the prohibition contained in the act is a proper exercise of the police power of the State, the legislature being the sole judge of the exigency when this power shall be employed.
The decision turns upon the single question, whether the restriction imposed upon the company, as to the use of its lands, as authorized by its charter, is á proper exercise of the police power of the State.
Without reference to the definitions given by law-writers and courts, of what is termed the police power of the State, in its more comprehensive sense, in its applications to the various relations of communities, when applied to matters like the subject of this litigation, it may be assumed that it is a power co-extensive with self-protection, and is not inaptly termed the “law of overruling necessity.” It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. It may be exercised to control the use of property of corporations as well as of private persons. In this regard there can be no distinction that can be justly taken. So far as franchises of a corporation are publiei juris, it has always been held, that the State may properly legislate touching them. Such legislation is not prohibited by that clause of the constitution of the United States which forbids the passage of laws impairing the obligation of contracts, nor does it deprive such corporations of any of the substantial benefits intended to be conferred by the acts of incorporation. The G. and C. U. R. R. Co. v. Loomis, 13 Ill. 548 ; Thorp v. Rutland and Burlington R. R. 27 Verm. 140.
Mr. Cooley, in his work on Constitutional Limitations, states the doctrine thus broadly: “All contracts and all right, it is held, are subject to this power, and regulations which affect them may not only be established by the State, but must also be subject to changes, from time to time, with reference to the well-being of the community, as circumstances change, or as experience demonstrates the necessity.” Cooley on Limitations, 57.
As a general proposition, it may be stated, it is the province of the law-making power to determine when the exigency exists, calling into exercise this power. What are the subjects of its exercise, is clearly a judicial question. There must necessarily be constitutional limitations upon this power. It is essential that such regulations must have reference to the comfort, safety or welfare of society, and, when applied to corporations, they must not be.in conflict with any of the provisions of the charter. It is not lawful, under the pretense of police regulations, to take from a corporation any of the essential rights and privileges conferred by its charter. Potter’s Dwarris on Statutes, 458; Cooley on Const. Lim. 577. The right to control is essentially different, and rests on a different principle from the power to repeal, alter or amend charters of private corporations.
Burial places are indispensable. Convenient to the city oí the living, a depository of the dead must be established and maintained. It concerns the public health, and if such places were not prepared by private enterprise, it would be the duty of the State to act in the premises. Among the most beneficent acts of government is that legislation which fosters such enterprizes, and clothes an aggregate number of citizens with with power to adorn and beautify grounds that shall receive the remains of our dead. The sentiments of our better natures, and the civilization of the age, demand that these sacred places shall be made attractive and beautiful by the employment of the highest skill in landscape culture, the erection of costly monumental structures and architectural adornings of elaborate design and workmanship. It is a part of the common history of the country, that, in the vicinity of large cities, where wealth and refinement abound, they are so arranged. They attract hither, as to pleasant places, lovers of the beautiful in nature, as to groves and parks that have been adorned by the lavish expenditure of money, and the works of those most skilled in that department of labor. Such a place is very far from being a nuisance per se, and the subject of absolute prohibition by legislative action. The Town of Lake View v. Letz et al. 44 Ill. 81.
There is nothing in nature but may be the instrument of mischief, and the burial of the dead may be so done as to be most injurious in its consequences to the people in the vicinage. But that is not the' question in the case at bar. By this act of the General Assembly, it was intended to prohibit, absolutely, the use of the grounds by the company for burial purposes. The act of granting the charter was, itself, a legislative construction that a cemetery is not necessarily a nuisance, if the grounds are well selected, and interments made with proper care. That it might become so, through misconduct, no one doubts. The General Assembly has the right to pass laws to regulate interments to prevent injury to the health of the community, and notwithstanding the company, in this instance, is exercising franchises conferred by the State, it is Avithin legislative control in this regard.
There are now eight cemeteries within the limits of the town of Lake View. The establishing of new ones may be the subject of prohibition, as is sought to be done by this act of the legislature. That question is not involved directly in the decision of this case.
The evidence does not sIioav there were any cemeteries Avithin the limits of the town at the date of the company’s charter, and when it Avas organized. The power to establish and maintain a limited number of cemeteries in a given territory, is a A7erv different question from the right to establish an unprecedented number, that would cover the whole face of the country with burial places. The prohibition of the latter may be within the rightful exercise of the police power, and the other not. The one is an absolute necessity, and the other might impose unreasonable burdens on a single community.
In the case at bar, by the provisions of its charter, the company was authorized to buy and hold land, not exceeding a certain quantity, and to use it for cemetery purposes. This it can rightfully do, and while the State has the unquestionable power to regulate the manner of its use, so far as it may injuriously affect others, it can not, under the pretense of making police regulations, repeal its- charter and revoke its franchises or deprive the company of any of the essential ri-g'hts conferred by its charter.
The act of the legislature does not profess to correct any abuses in the use of the property, but is -an arbitrary prohibition of its use in accordance with the provisions of a charter previously granted. Upon what principle can such a law be maintained, or what “overruling necessity” was there for its enactment? There is no pretense the cemetery, as constructed, is a nuisance, nor is there any charge that the health or comfort of the people in the vicinity has been or will be affected in the near or even in the distant future. If it can be maintained at all, it must be by some absolute power by which the General Assembly, it being the sole judge of the extent of its powers, may declare what shall and what shall not be independently of all constitutional restrictions. Reference is made to the reserved power of the State, denominated “police power,” as affording the' requisite authority. It has been said, the source of this extraordinary power may be readily recognized as flowing from the people in their organized capacity, inalienable in its character, but that it is difficult to define its boundaries or limit its operations. We are unwilling, however, to concede the existence of an indefinable power, superior to the constitution, that may be invoked whenever the legislature may deem the public exigency may require it, by which a party may be capriciously deprived of his property or its use, without compensation, whether such property consists of franchises or tangible forms of property. The constitution expressly provides, the right of property shall remain inviolate, and, upon all enumerated subjects, it must constitute a limitation on the exercise of all power, no matter what its nature may he, nor whence its origin. If such was not the case, there could be no constitutional security for private rights, and the citizen would hold his property, corporeal and incorporeal, by a most uncertain tenure.
In this instance, if the General Assembly can rightfully prohibit the company from using its lands previously purchased, which lie outside of the present inclosure, for cemetery purposes, as authorized by its charter, upon the same principle it could prohibit the use of the now unoccupied portion of the inclosure, and as the property is valueless to it for any other purpose, and as the company could not lawfully use it, in any event, for other than burial purposes, it would amount to a deprivation of its use, and almost a total destruction of its value. The franchises conferred by the act of incorporation would be rendered valueless, unless they could be employed in the use of the lands previously purchased, and the capital invested in them would be imperiled, if not wholly lost.
It is not denied that the lands of this company are well selected, and are situated at a proper distance from the populous part of the city, in a sparsely settled community, there being but few dwelling in the immediate vicinity. If these lands can not be used, a very grave question would arise— where could the city find a burial place for its dead? The same power that prohibits the use of these grounds would extend to all places within the jurisdiction of the State. "We can not assent to the proposition, that the General Assembly possesses any such power.
Under the power to regulate, the State can not deprive the citizen of the lawful use of his property, if it does not injuriously affect or endanger others. Among the beneficent provisions of Magna Charta is, the protection guaranteed the subject in the free enjoyment of his life, liberty and property, except as the same might be declared forfeited by the judgment of his peers or the law of the land. This cardinal principle has been embodied in the constitutions of all the American States, and, by a recent amendment, it is now incorporated in the Federal Constitution. In view of this constitutional guaranty, it can not be said that every legislative enactment that affects the interest of the citizen, is necessarily the “law of the land.” Such a construction would render nugatory every constitutional provision intended for the protection of private property.
If a person is to be deprived of his private property, it must be by the exercise of the right of eminent domain, and in all such cases just compensation must be made,
We are of opinion this act, so far as it limits the boundaries of Eose Hill Cemetery in the use of lands previously owned, not exceeding 500 acres, for the purposes named in the charter, is an unconstitutional exercise of power, and can not be maintained.
The bill was properly dismissed, and the decree must be affirmed.
Decree affirmed.