of San Francisco, must surrender the dead bodies of such persons as are required to be buried at the public expense to any physician or surgeon, to be by him used for the advancement of anatomical science, preference being always given to medical schools by law established in this state, for their use in the instruction of medical students. But if such deceased person during his last sickness requested to be buried, or if within twenty-four hours after his death some person claiming to be of kindred or a friend of the deceased requires the body to be buried, or if such deceased person was a stranger or traveler who suddenly died before making himself known, such dead body must be buried without dissection. History: Enacted March 12, 1872. § 3095. PHYSICIANS, ETC., TO HAVE CERTIFICATE FROM MEDICAL SOCIETY. Every physician or surgeon, before receiving a dead body, must give to the board or officer surrendering the same to him a certificate from the medical society of the county in which he resides, or if there is none, from the board of supervisors of the same, that he is a fit person to receive such dead body. He must also give a bond, with two sureties, that each body so by him received will be used only for the promotion of anatomical science, and that it will be used for such purpose within this state only, and so as in no cvent to outrage the public feeling. History: Enacted March 12, 1872, founded upon 3 Act March 26, 1870, Stats. 1869-70, p. 405. § 3105. TITLE TO CEMETERY GROUNDS. The title to lands used as a public cemetery or graveyard, situated in or near to any city, town, or village, and used by the inhabitants thereof continuously, without interruption, as a burial-ground for five years, is vested in the inhabitants of such city, town, or village, and the lands must not be used for any other purpose than a public cemetery. § 3106. WHAT CONSTITUTES A CEMETERY. Six or more human bodies being buried at one place constitutes the place a cemetery. History: Enacted March 12, 1872, re-enactment of § 4 Act February 16, 1854, Stats. 1854, p. 20. 1. Applied, cited, construed, referred to. 7. Same-And prohibiting sale of lots. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Stockton vs. Weber, 98 Cal. 433, 438, 33 Pac. Rep. 332 (construed). 2. EXHUMATIONS REGULATION OF. -Burial and exhumation of dead with view to sanitary objects have always among all civilized nations been regarded as proper subjects of local regulation, and an ordinance providing that no exhumations be made without permit from health officials of county and payment of prescribed tax or fee therefor, is valid.-In re Wong Yung Quy, 2 Fed. Rep. 624. 3. ORDINANCE PROHIBITING BURIALS throughout limits of city and county of San Francisco under any and all circumstances and conditions, is void. Supervisors by their mere order and declaration cannot make such burials dangerous to life and detrimental to public health.Hume vs. Laurel Hill Cemetery (U. S. C. C., N. Dist. Cal. Oct. 9, 1905), 140 Fed. Rep. 4. Where cemetery is not nuisance and has never been and will not become such and is not dangerous to life or detrimental to public health it is not within power of municipality to suppress it.-Hume VS. Laurel Hill Cemetery (U. S. C. C., N. Dist. Cal. Oct. 9, 1905), 140 Fed. Rep.; Yates vs. Milwaukee, 77 U. S (10 Wall.) 497, 505, bk. 19 L. ed. 984. 5. Ordinance arbitrarily prohibiting the burial of bodies, or establishment, extension, or enlargement of any cemetery within an entire county embracing large tracts of unoccupied land remote from human habitation, for burial, in which public could not be endangered, is unreasonable and void. The establishment of cemetery for burial of dead is a lawful business and is no more subject to will of supervisors than the right to engage in any other business. There is wide difference between regulation and prohibition-regulatory provisions as condition imposed for exercise of right and making right itself dependent upon unrestrained will of municipality.Los Angeles vs. Hollywood Cemetery Assoc., 124 Cal. 344, 348, 71 Am. St. Rep. 75, 57 Pac. Rep. 153. 6. Ordinance making it unlawful to bury or inter or cause to be interred or buried after certain date dead body of any person in any cemetery, graveyard, or any place within city and county of San Francisco exclusive of those portions thereof belonging to United States, is not in conflict with general law and is valid as police regulation. The court cannot say as matter of law that conditions of city are not such as to make it reasonable to prohibit further burial of dead within city limits, as in enactment of police regulations legislative body is not confined to present conditions alone but may look to future and make such provisions as may be reasonably expected to be necessary to preserve public health and welfare in immediate growth and progress of city. If a doubt exists as to unreasonableness of an ordinance that fact is sufficient reason for court to decline to adjudge ordinance invalid.-Odd Fellows' Cem. Assoc. vs. San Francisco, 140 Cal. 226, 230, 232-234, 73 Fac. Rep. 987. See Hume vs. Laurel Hill Cemetery, supra. 7. And prohibiting sale of lots.-Ordinance forbidding burial of human bodies within city and county or any designated portion thereof, or in any cemetery situated therein, and also sale of lots in any cemetery, excepting, however, burials in cemetery lots theretofore purchased, is void as limiting privilege of burial to one class of citizens and denying it to other classes. Such ordinance is also void as attempting to prohibit something which is not at time of its enactment deleterious to health but which may, under some circumstances, at some future time become So.-Ex parte Bohen, 115 Cal. 372, 376, 47 Pac. Rep. 55. 36 L. R. A. 618. of 8. Must be reasonable.-Prohibition burials within limits of municipality must be reasonable, and an ordinance prohibiting burials in any part of city containing much territory sparsely inhabited and from burials in which no harm could result is void.-Wygant VS. McLauchlan, 39 Oreg. 429, 64 Pac. Rep. 867. 9. RURAL CEMETERY ACT.-Ordinance prohibiting burials in cemeteries within limits of city is not in conflict with act of 1859 for incorporation of rural cemetery associations or §§ 608-616 of Civil Code. Those laws merely give such corporation power to take and hold land and limit amount thereof and uses to which it may of be devoted. There is nothing purporting to be an exercise of police power with respect to public health, safety, or comfort, and they are not intended to operate upon or in any manner restrict authority municipal corporations in exercise of its police power to regulate and control location and maintenance of cemeteries.-Odd Fellows' Cem. Assoc. VS. San Francisco, 140 Cal. 226, 230, 232, 73 Pac. Rep. 987. Burial and disinterment permits.-See HENNING'S GENERAL LAWS pp. 90, 96, and KERR'S CYC. PEN. CODE § 290. Cemeteries and cemetery corporations.— See KERR'S CYC. CIV. CODE §§ 608-616. Cremation.-See HENNING'S GENERAL LAWS p. 109. Exhumation and removal of the remains of deceased persons. See HENNING'S GENERAL LAWS p. 505. Prohibiting burials in cemeteries.-See KERR'S CYC. PEN. CODE § 297 and note. Removal of remains from cemeteries in cities.-See HENNING'S GENERAL LAWS p. 110. Rural cemetery associations.-See HENNING'S GENERAL LAWS p. 105. Violating sepulture and the remains of the dead. See KERR'S CYC. PEN. CODE §§ 290, 297. Who charged with duty of burial and punishment for omitting to bury. See KERR'S CYC. PEN. CODE §§ 292, 293. § 3107. CEMETERIES, HOW LAID OUT AND DEDICATED ON PUBLIC LANDS. Incorporated cities or towns, and for unincorporated towns. or villages, the supervisors of the county may survey, lay out, and dedicate of the public lands situated in or near such city, town, or village, not exceeding five acres, for cemetery and burial purposes. The survey and description thereof, together with a certified copy of the order made constituting the same a cemetery, must be recorded in the recorder's office of the county in which the same is located. History: Enacted March 12, 1872. . 1. City may establish cemetery. 1. CITY MAY ESTABLISH CEMETERY for interment of its dead and place same in possession and under control of suitable trustees, and deed from city vests legal title to property in trustees for purpose of trust. Weisenberg vs. Truman, 58 Cal. 63, 69. 2. Cannot grant to individuals.-Outside lands of city and county of San Francisco set apart as city cemetery are held by city for use of and in trust for people, and no part thereof can be granted to corporation though used by it only for burial purposes. -La Societa Italiana vs. City and County of San Francisco, 131 Cal. 169, 174, 63 Pac. Rep. 174, 53 L. R. A. 382. 3. May revoke license to use.-Ordinance granting permission to corporation or society to make burials in part of city cemetery cannot devest city of right to thereafter, in exercise of its police power, prohibit further burials in such cemetery.La Societa Italiana vs. City and County of San Francisco, 131 Cal. 169, 174, 63 Pac. Rep. 174, 53 L. R. A. 382. Cemeteries of municipalities.-See HENNING'S GENERAL LAWS p. 915. § 3108. INHABITANTS OF CITY, ETC., TO OWN CEMETERY. The inhabitants of any city, town, village, or neighborhood may by subscription or otherwise purchase or receive by gift or donation, lands not exceeding five acres, to be used as a cemetery, the title thereof to be vested in such inhabitants, and when once dedicated to use for burial purposes must thereafter be used for no other purpose. History: Enacted March 12, 1872. Burial of the dead, municipal power over. -See monographic note by Ernest Watts, 38 L. R. A. 327. Municipal control over nuisances relating to burial-ground, etc.—See monographic note by Ernest Watts, 41 L. R. A. 323 (also hospitals, garbage, sewers, and things relating to public health, etc). Power of municipalities to regulate, prohibit, or discontinue cemeteries.—See monographic note 87 Am. St. Rep. 678. § 3109. PUBLIC CEMETERIES, UNDER WHOSE CONTROL. The public cemeteries of cities, towns, villages, or neighborhoods must be inclosed and laid off into lots, and the general management, conduct, and regulation of interments, permits to inter, or remove interred bodies, the disposition of §§ 3110-3136 (750) JURISDICTION AND CONTROL-LOST GOODS. [Pt. IIL lots, and keeping the same in order, is [are] under the jurisdiction and control of the cities and towns owning the same, if incorporated; if not, then under the jurisdiction and control of the board of supervisors of the county in which they are situated. History: Enacted March 12, 1872. § 3110. WHO EXERCISE JURISDICTION AND CONTROL OVER. The board of supervisors, city trustees, or other corresponding authorities having jurisdiction and control of cemeteries, may make general rules and regulations therefor, and appoint sextons or other officers to enforce obedience to the same, with such other powers and duties regarding the cemetery as they may deem necessary. History: Enacted March 12, 1872. § 3111. REGISTER MUST BE KEPT. The authority having control of a public cemetery must require a register of name, age, birthplace, and date of death and burial of every body interred therein, to be kept by the sexton or other officer, open to public inspection. § 3136. DUTY OF PERSONS FINDING LOST MONEY, GOODS, ETC. If any person find any money, goods, things in action, or other personal property, or shall save any domestic animal from drowning or from starvation, when such property shall be of the value of ten dollars or more, he must inform the owner thereof, if known, and make restitution without compensation, further than a reasonable charge for saving and taking care thereof; but if the owner is not known to the party saving or finding such property, he must, within five days, make an affidavit before some justice of the peace of the county, stating when and where he found or saved such property, particularly describing it; and if the property was saved, particularly stating from what and how he saved the same, stating therein whether the owner of the property is known to him, and that he has not secreted, withheld, or disposed of any part of such property. History: Enacted March 12, 1872; amended March 30, 1874, Code Duties and liabilities of finder. See Larceny of lost property. See KERR'S CYC. PEN. CODE 485. Rights and liabilities of finder of property. See monographic note by H. P. Farnham, 37 L. R. A. 116; and monographic notes 18 Am. Dec. 55; 30 Am. Rep. 180. Wrecked property and wrecks.-See ante §§ 2403-2418. Same.-Claimant of to give bond, and action on.-See ante §§ 2409-2411. § 3137. APPRAISERS; JUSTICE TO APPOINT, DUTY OF. The justice must then summon three disinterested householders to appraise the same. The appraisers, or any two of them, must make two lists of the valuation and description of such property, and sign and make oath to the same, and deliver one of the lists to the finder, and the other to the justice of the peace. History: Enacted March 12, 1872. § 3138. LIST OF APPRAISERS TO BE FILED. FINDER TO ADVERTISE. The justice must file such list, and the finder must transmit a copy of the same to the recorder of the county, who must record the same in a book known as the "Estray and lost property book," within fifteen days, and the finder must at once set up at the court-house door and four other public places in the township or city a copy of such valuation and description of property. History: Enacted March 12, 1872. Commissioners' note says: "It was the intention to continue undisturbed the special estray laws particularly applicable to particular counties, but a careful reading of this article will discover that in the absence of any special statute estrayed property annoying a finder, who knows no owner for it, may keep and dispose of it as herein provided for other lost property." § 3139. PROCEEDINGS, IF NO OWNER APPEAR WITHIN SIX MONTHS. If no owner appears and proves the property within six months, and the value thereof does not exceed twenty dollars, the same vests in the finder; but if the value exceed twenty dollars, the finder must, within thirty days after setting up the list mentioned in the preceding section, cause a copy of the description to be inserted in some newspaper printed in the county, if there be one, and if not, in some newspaper printed in the state, for three weeks; and if no owner prove the property within one year after such publication it vests in the finder. History: Enacted March 12, 1872. § 3140. FINDER TO RESTORE PROPERTY, WHEN. OWNER MAY SUE, WHEN. If, within one year, an owner appears and proves the property and pays all reasonable charges, including fees of officers, the finder must restore the same to him. On failure to make restoration of such property, or the appraised value thereof, on being tendered such charges and fees, the owner may recover the same or the value thereof by civil action in any court having jurisdiction. History: Enacted March 12, 1872. § 3141. FINDER FAILING TO MAKE DISCOVERY, PENALTY. If any person find any money, property, or other valuable thing, and fail to make discovery of the same as required by this article, he forfeits to the owner double the value thereof. History: Enacted March 12, 1872. Larceny committed by failure of finder to make discovery. See KERR'S CYC. CIV. CODE 485. |