Nathaniel Austin et al., Selectmen of Charlestown, versus Thomas Murray, 16 Pick. 121

Wilde J. delivered the opinion of the Court. The general question in this case is, whether the by-law of the town of Charlestown, so far as it relates to the charges against the defendant, be valid or void. By the first part of the fourth

section of the by-law it is ordained, “ that no. person shall, without leave first obtained in writing, signed by a majority of the selectmen of the said town of Charlestown, bring or cause to be brought into said town any dead body ; or convey, or cause to be conveyed, through any of the streets of said town, any dead body so brought into said town.” That this part of the by-law is unauthorized by the St. 1832, c. 150, and cannot be sustained, is'very clear, and is indeed admitted by the plaintiffs’ counsel.

There is nothing in the language of the statute, from which it can be inferred, that it was the intention of the legislature to delegate to the selectmen and town of Charlestown the power of imposing upon the citizens of the Commonwealth such an unreasonable restraint ; nor had the ,legislature any right or authority to delegate any such power.

By the remaining part of the section, all persons are prohibited, without license from the selectmen, from burying any dead body so brought into said town, on any part of their own premises, or elsewhere within the town ; and it is contended, on the part of the plaintiffs, that this part of the ordinance is authorized by the St. 1832, c. 150, and is valid.

By the statute, the selectmen are authorized and empowered from time to time to make and establish rules, orders, and regulati ns for the interment of the dead in said town, to establish the police of the burying-grounds, to make regulations for funerals, and to appoint all necessary officers to carry the same into effect. Is then this part of the by-law a regulation for the interment of the dead ? Or does it amount to a pro hibition ? We think very clearly that it amounts to a prohibition, and was so intended by the selectmen and the town The whole object of the 4th

section appears very clearly to have been, to prevent any dead body from being brought into the town for interment. Indeed the prohibition is express and absolute, excepting the qualification allowing the selectmen to grant license &c., which was never intended to apply to the interment of the dead of the Catholic religion, in respect to which it is manifest the prohibition was meant to be absolute. The refusal of the selectmen to allow any such license on the application of the Catholic Bishop, without assigning any reason whatever, sufficiently shows the intention and the object of the by-law.

But if it were otherwise, and this by-law were to be considered as a regulation and not a prohibition, still we think it unauthorized and illegal. A by-law, to be valid, must be reasonable ; it must be Ugi, Jidei, rationi consona. Now if this regulation or prohibition had been limited to the populous part of the town, and were made in good faith for the purpose of preserving the health of the inhabitants, which may be in some degree exposed to danger by the allowance of interments in the midst of a dense population, it would have been a very reasonable regulation.

But it cannot be pretended that this by-law was made for the preservation of the health of the inhabitants. Its restraints extend many miles into the country, to the utmost limits of the town. Now such an unnecessary restraint upon the right of interring the dead, we think essentially unreasonable. If Charlestown may lawfully make such a by-law as this, all the towns adjoining Boston may impose similar restraints, and consequently all those who die in Boston must of necessity be interred within the precincts of the city.

That this would be prejudicial to the health of the inhabitants, especially in the hot seasons of the year and when epidemic diseases prevail, seems to be a well established opinion. Interments, therefore, in cities, and large populous towns, ought to be discountenanced, and no obstacle should be permitted to the establishment of cemetries, at suitable places, in the vicinity. The by-law in question is therefore an unreasonable restraint upon many of the citizens of Boston, who are desirous of burying their dead without the city, and for that reason is void.

And this by-law would seem to be void for another reason. A. by-law for the total restraint of one’s right, is void ; as if a man be barred of the use of his land. Com. Dig. Bye-law, C 4. The land where the bodies were interred was the land of the Catholic Bishop of Boston, purchaséd by him in 1830, and then consecrated as a Catholic burying-ground, and has ever since been used as such, for the interment of Catholics dying in Charlestown and Boston.

It is true the by-law does not operate to the total restraint or deprivation of the Bishop’s right, but it is a total restraint of the right of burying the dead dying in Boston, for which a part of the burying-ground was appropriated. The illegality of a by-law is the same, whether it may deprive an individual of the use of a part or of the whole of his property ; no one can be so deprived, unless the public good requires it.

And the law will not allow the right of property to be invaded, under the guise of a police regulation for the preservation of health, when it is manifest that such is not the object and purpose of the regulation. Now we think this is manifest from the case stated, in respect to the by-law in question. It is a clear and direct infringement of the right of property, without any compensating advantages, and not a police regulation, made in good faith, for the preservation of health.

It interdicts, or in its operation necessarily intercepts, the sacred use to which the Catholic burying-ground was appropriated and consecrated according to the forms of the Catholic religion, and such an interference, we are constrained to say, is wholly unauthorized and most unreasonable. But there is another principle upon which this by-law is clearly void. A by-law being entire, if it be void in part, shall be void for the whole. The reason is obvious ; for if a part of a by-law might stand good, while another essential

part could not be sustained, the object of the by-law might be defeated and injurious consequences might follow against the intention of the framers. Com. Dig. Bye-law, C 7 ; 2 Ventr. 183 ; Rex v. The Company of Free Fishermen of Faversham, 8 T. R. 356. The present case affords a strong illustration of the soundness and beneficial effects of this principle. The object of the 4th

section was, to prevent any one from bringing any dead body into town for interment, without license from the selectmen. The prohibition to this effect, is now admitted to be unauthorized ; and if this had been known to the selectmen when the by-law was made, it cannot be supposed that any part of the 4th

section would have been admitted. If the dead might be lawfully brought into town, they were not to be left unburied. The intention of the by-law was, to prevent the introduction of dead bodies into the town, and as this intention cannot be lawfully carried into effect, the whole object of the by-law fails. But it has been argued, that this action may be maintained on the 3d

section of the by-law, which ordains, that no person shall exercise the office of funeral undertaker within the limits f the town of Charlestown, unless he shall first have been appointed and licensed by the selectmen. This

section seems not to be applicable to the interment of any dead bodies, which is prohibited in the 4th section. Dead bodies brought into town without leave from the selectmen, are not suffered to be buried, whether the person performing the service be licensed as an undertaker or not. If, however, the 3d

section was intended more effectually to enforce the prohibition in the 4th section, and both sections are to be taken in connexion as referring to the same general object, then we should hold both void for the reasons already given. This latter construction is much favored by a reference to the correspondence between the selectmen and Bishop Fenwick.

And on the whole, we are of opinion, that this ordinance, so far as it relates to the present action, is void, being an unreasonable infringement on private rights, and wholly unauthorized by the act of the legislature empowering the selectmen of Charlestown to make and establish rules and regulations for the interment of the dead, and consequently that this action cannot be maintained. Judgment of the Court of Common Pleas affirmed..