dissenting:
I can not concur in the denial of the power to the legislature to prohibit the particular use of land for the burial of the dead, when deemed necessary for the protection of the health, safety, comfort and welfare of community. It is an authority which has ever been exercised by the law-making power of a State. In Eome it was one of the laws of the twelve tables, “hominem mortuum in urbe ne sepelite neve vicinitate.” The City Council of Charleston v. The Wentworth Baptist Church, 4 Strobhart, 310, Kincaid’s Appeal, 66 Penn. State Rep. 423, Coates v. The Mayor, etc., 7 Cowen, 584, are cases where such laws as applicable to existing burial grounds, were held to be constitutional and valid, and where their bearing upon the subject of private rights underwent a full discussion.
Eestraints of such a particular use of property, are held to be a legitimate subject of the exercise of the police power of the State. The power of the legislature to prohibit all future interments within the limits of the city of Chicago, I take it, is not to be questioned. There may be such a pub-lie exigency, that the ■ same public considerations which would justify the exercise of the police power to make such prohibition within the limits of the city, would operate to render proper the making of the same prohibition at such a distance outside of the limits as that where the ground in question is situated.
Were things to remain as they now are, with no further increase of population in the vicinity of this cemetery ground, a court, perhaps, might see that there was obviously no exigency calling for this exercise of the police power; tha*t it was not a police regulation in fact, and if claimed to be such, that it was only the pretense of a police regulation.
But it is apprehended that this police power may be exercised, as well to prevent what may be likely to become a nuisance, as to suppress an already existing one. In Cooley on Const. Lim., 595, the author, in reference to this subject, says: “And church yards which prove, in the advance of urban population, to be detrimental to the public health, or in danger of becoming so, are liable to be closed against further use for cemetery purposes.”
In the case cited from 4 Strobhart, in speaking of this police power, it is said : “It is not necessary to the existence of the power, that there be a present occasion for its exercise. It is sufficient that a future emergency may demand it.” In view of the narrow strip of territory comprising the ■town of Lake View, the large number of burial grounds within its limits, the increasing use of them for burial purposes, arising from the proximity of the town to the growing city of Chicago, which it adjoins; and in view of the rapidly increasing population of that city, which is constantly overflowing the city boundaries, and filling up the adjacent towns, the legislature, we may presume, for the purpose of preventing the mischievous consequences to the immediate neighborhood from too many crowded burial grounds, has thought proper to prohibit the extension of burial grounds within that town.
Is it unreasonable to anticipate, in view of the marvelous growth of the city of Chicago, that, at no far distant day, this ground will be found to be in the midst of the dense population of a city? There is especial fitness in preventive legislation in a case of this kind, owing to the difficulty, from its peculiar nature, of obviating a nuisance of this character, after it has once actually become such. In reference to such, and like, considerations, in view of the probabilities of the future, the legislature may be supposed to have acted, and made the police regulation in question. Is it for a court to throw itself across the path of a law-making power, and annul its enactment made for the welfare of an expected populous community, because, in the opinion of the court, it was uncalled for by a sufficient public exigency? In Coates v. The Mayor, etc., supra, in passing upon this question, the court say: “It is of the nature of legislative bodies to judge of the exigency upon which their laws are founded.” This is believed to be the well settled doctrine upon the subject; and that whether there was a sufficient occasion for the exercise of the police power in any given case, is not a judicial question, but a political question, provided the exercise of the police power be not colorable. It is admitted, that the police regulation must be such an one in fact, and that the use of private property is not to be abridged under the pretense only of a police regulation. There would seem to be enough in matters which are of public notoriety and of judicial cognizance, to manifest that the exercise of the police power here was not merely colorable, but that there was occasion for a fair question as to the propriety of making such a police regulation as was here made. It can not be essential to the validity of the law, that the act itself should declare, or that the allegations or proofs in the case should show, the existence of facts evincing the necessity of the law. It would present a new phase of judicial controversy, to have an issue of fact in a court upon the necessity of the passage of a law.
The prohibition of this particular use of one’s land, then, it is believed, would be valid in the case of a natural person; but the Bose Hill Cemetery Company denies that it is so, in respect to its property, because it has a chartered right to make this particular use of it.
The charter of a private corporation does not imply an undertaking on the part of the State, that in the same way in which their exercise is permissible at first, may the corporators continue to exercise their rights; but on the contrary, the rights and privileges which the charter confers, are only thereby placed upon the same footing with other legal rights and privileges of the citizen in respect to proper rules for their due regulation, protection and enjoyment. Cooley Const. Lim. 577.
The same doctrine has been repeatedly announced in decisions of this court. ' G. and C. U. R. R. Co. v. Loomis, 13 Ill. 548; O. and M. R. R. Co. v. McClelland, 25 id. 140; G. and C. U. R. R. Co. v. Appleby, 28 id. 290.
■ “ The limit to the exercise of the police power in these cases must be this: the regulations must have reference to the comfort, safety or welfare of society; they must not be in conflict with any of the provisions of the charter; and they must not, under pretense of regulation, take from the corporation any of the essential rights and privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise.” Cooley Lim. 577.
Is the restraint in this case in conflict with, not any literal provision, but with any provision of the charter as rightly understood? All contracts must be understood as made in reference to the possible exercise of the rightful authority of the government, and all property is acquired and held under the implied liability that the use of it may be so regulated that it shall not be injurious to the rights of the community. Legal Tender cases, 12 Wall, 529; Comm. v. Tewksbury, 11 Metc. 55; Comm. v. Alger, 7 Cush. 86; O. and M. R. R. Co. v. McClelland, 25 Ill. 140. In the last cited case, this court, speaking of private corporations, says : “ When such bodies accept their charters, it is upon the implied condition that they are to exercise their rights subject to the power of the State to regulate their actions as it may individuals.” At the time this company accepted its charter, it had ever been usual for the law-making power to regulate and prohibit the use of ground for the burial of the dead, whenever such use was supposed to be detrimental to the welfare of crowded populations. The privilege of burying the dead in any particular land, as being one to be exercised for profit, is very unlike any ordinary commercial franchise. In view of these circumstances, and the legal principles applicable, may it not be said, that although the charter of this corporation gives to it the right to acquire, and make the specific use of, this land, for the burying of the dead, yet, that the charter was accepted with the implied understanding that the property would be subject to a proper exercise of the police power of the State, and be liable to be restricted in its use for burial purposes, as burial grounds ever had been, whenever, in the progress of population, such restraint might be deemed necessary to the health and welfare of the community.
In Fletcher v. Peck, 6 Cranch, 87, a grant of land by a State was held by the Supreme Court of the United States to be a contract executed, and to be, equally with an executory contract, within the protection of the clause of the Constitution of the United States, which forbids the States passing any laws violating the obligation of contracts.
Where the State makes an absolute grant of a tract of land to an individual, the grantee has the right, derived from the grant, to use the land for the burial of the dead, to erect upon it wooden buildings, or a powder magazine for the storage of gunpowder, or a slaughter house and carry that on, or a building for any like noxious use. Yet the State, in the proper exercise of the police power, might afterwards, without constitutional objection, prohibit all such uses of the land, and it would not be a violation of the contract implied by its grant of the land, that the grantee might make all those uses of the property. It is difficult to perceive why, in the case of the grant by the State of the right and privilege to make one particular use of land, as, for the burial of the dead, a subsequent restriction by the State of that use, in exercise of the police power, should be any more an impairment of the obligation of a contract, than the like restriction would be in the case of an absolute grant of land by the State, which would carry the right of such particular use, and all other uses, in virtue of the absolute dominion of the land.
That the clause of the constitution declaring, private property shall not be taken for public use without just compensation, is not applicable to laws made in pursuance of the police power prohibiting a particular use of private property, is abundantly settled by authority. See the authorities supra, cited from other States.
The conclusion, then, to which I am led is, that the prohibition by the legislature, in the exercise of the police power, of the use of a portion of the land of the Eose Hill Cemetery Company for burial purposes, was constitutional and valid.