Connecticut. Supreme Court of Errors.

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NOVEMBER, 1889. 98

Application of St. Bernard Cemetery Association.

Dickerman in the trial conrt and the finding of the court
thereon, which are thus stated upon the record : " Said coun-
sel claimed that the foregoing facts showed that the ceme-
tery proposed to be located was one to be devoted exclusively
to the use and for the benefit of the Catholic population and
churches, and that as such it was not and could not be of
public necessity and convenience." The facts referred to
in this claim are, briefly, " that in the town of New Haven
there is but one cemetery in which interments from the en-
tire Catholic population attached to the various churches of
that denomination, and now estimated at about one third of
the entire population, or in round numbers at thirty thousand,
and the bodies of Catholics brought from abroad, are made.
Their interments probably average four or five hundred
yearly. This ground, consecrated according to the rites of
the Catholic Church and opened in 1868, and which appears
to have been used exclusively in burials by Catholics, con-
tains about twenty acres, and is now filled to that extent
that not a single additional lot can be procured. In view of
this fact and that there is no other cemetery in New Haven
in which Catholics are buried, the Catholic clergy and con-
gregations, united and through appropriate committees in-
vestigated, selected as best adapted for a place of burial the
tract described in the application containing about seventy
acres, purchased the same, and secured from the General
Assembly the act of incorporation referred to." It is fur-
ther found that " it was shown in evidence that no vote had
ever been taken by the corporation, or by-law or regulation
passed, affecting the question of right of burial in the pro-
posed cemetery. It was not, however, claimed that the
promoters or corporator had been actuated by any other
consideration than the necessity of providing accommoda^
tions for burial to those connected with the Catholic congre-
gations or denominated Catholics."

It is not very strongly claimed before this court but that
the finding of the Superior Court, so far as it determines
that the cemetery so proposed to be located will not be det-
rimental to the public health, is conclusive and cannot be


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94 NOVEMBER, 1889.

Application of St. Bernard Cemetery Association.

disturbed. It is, however, strenuously contended that, al-
though the court has in words found that the proposed ceme-
tery is of common convenience and necessity, the facts found
in detail show as a matter of law that this is erroneous.

The appellant says the proposed cemetery is not and can-
not be of common convenience and necessity, for the reason
that all persons cannot for the same measure of money have
the same measure of right to be buried therein, and cites as
supporting this claim language found in the case of The
Evergreen Cemetery Association v, Beecher, 53 Conn., 551.
The words cited, wheu examined in the connection in which
they are used in that case, do not support the appellant's
argument. That was a complaint asking to take the lands
of the defendant by the power of eminent domain for the
purposes of a cemetery. There was a demurrer to the com-
plaint and the question was reserved for the advice of the
Court of Errors. In discussing the suflSciency of the com-
plaint the judgb who gave the opinion, after mentioning
several kinds of public uses, and that although the use might
be such that some persons would be excluded because of
their inability to pay for it, said — ** nevertheless it remains
a public use so long as all persons have the same measure
of right for the same measure of money," and then decided
that the complaint in that case was insufficient because there
was in it no averment that the land proposed to be taken
was for the public use in the sense indicated. The expres-
sion used was an exceedingly happy one for the purpose then
in hand. It was put forth as an illustration of what might
be a public use rather than as an exhaustive definition of
what all public uses must be.

If however it be admitted that the language used in that
case should have the meaning put upon it by the appellant,
yet his position is not much improved. The claim itself is
so much wider than the finding of the court that it has no
very firm basis of fact to rest upon. The plaintiffs, to be
sure, are persons connected with the Catholic churches in
New Haven, and while it is not claimed that they have been
actuated by any other motive than a desire to provide burial


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NOVEMBER, 1889. 95

Application of St. Bernard Cemetery Association.

places for persons of their own denomination, it is found that
there has never been any vote, regulation or by-law passed
or proposed by which others than Catholics will be excluded
from burial in their ground. This finding is perhaps suf-
ficient to show that there is no error in the judgment of
the Superior Court. But we prefer to go a little further.
Among the uses which are undeniably public in their nature
is the use of land for the burial of the dead. Burial places
are indispensable, for " the safety of the living requires that
the dead be buried in suitable time and place." It may be
of the highest public utility that private persons set apart
their lands for this use. And an enterprise by private per-
sons, without expense to the public, and seeking not to vio-
late any law of the land, which, near a great and rapidly
growing city, proposes, to furnish burial places for one third
of its inhabitants, is one that should be favored instead of
being repressed. That the moving cause of such an enter-
prise is found in denominational attachments or beliefs, is
no just argument against it. It is hardly an exaggeration
to say that among all Christian peoples from the earliest times
the business of providing and maintaining cemeteries has
been performed .by denominational agencies. The word
" cemetery " itself was first used by the early Christians to
denote a place for the burial of their dead. They first had the
custom of building their churches on the plots which covered
the remains of martyrs, and then of leaving a space around
the church to be reserved for burials. The church-yard
was the cemetery. Relics of this usage are still seen in the
graves that surround old churches and in the juxtaposition
of the church and the burying ground. All Christian de-
nominations, however differing in other respects — except
perhaps the Scotch Presbyterians and the New England
Puritiins — have uniformly consecrated their places of burial
with some sort of religious observances. Among all these
denominations without any exception the burial of the dead
is associated with the belief in the resurrection of the body.
Among them all fiineral rites have been interwoven with and


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96 NOVEMBER, 1889.

Application of St Bernard Cemetery Association.

sanctified by the ceremonies of religion, and the tomb has
been esteemed sacred and guarded with pious care.

There is nothing to which the human mind clings with
more tenacity than to its religious beliefs, and there is noth-
ing which men resent with more fiery zeal than any inter-
ference with such beliefs. In ascertaining whether or not
any proposed use of property will be of common convenience
and necessity it might be sometimes unavoidable, and per-
haps it would be at all times allowable, to take into consid-
eration these beliefs prevalent in the community where the
use is to be had, in the same way that the wealth, the popn-
lousness, the course of business, the trade and the pleasures
of the community are considered.

In the early history of Connecticut the ecclesiastical soci-
ety and the town were one. Then, and afterwards when the
towns came to be divided into more than one ecclesiastical
society, the same body that built the meeting house and
settled the minister provided the burying ground and gave
it such care as it had — often enough too little. Tlie rude
forefathers of every Connecticut hamlet have been "each in
his narrow cell forever laid " in an ecclesiastical burying
ground, attended by some denominational minister to say a
last prayer at his uncovered grave.

In 1821 the legislature erected ecclesiastical societies into
school societies and gave school societies power to provide
burial grounds, a hearse, etc. Cemetery associations were
not provided for by statute till 1841.

The plaintiffs are the private owners of certain land which
they seek to use for a private cemetery. But all property of
every peraon is holden subject to the right of the legislature
to pass any laws affecting its enjoyment which tend to pro-
tect the lives or the health of the citizens, or to promote good
order or the public morals. The statute above quoted is an
exercise of this right by the legislature, and was passed evi-
dently with a view to the public health. The proximity of
a cemetery to a reservoir from which the inhabitants of a
city procuied their drinking-water would be likely to pro-
duce disease ; and for that reason the legislature might pro-


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NOVEMBER, 1889. 97

Application of St. Bernard Cemetery Association.

perly forbid either a cemetery or a reservoir to be located
within a half-mile of the other. No other reason than the
preservation of health is suggested for the enactment of that
statute, and no other one occui-s to the court as reasonable
or probable. In respect to the land owned by the plaintiffs
the question of health has been eliminated by the finding of
the Superior Court. It is expressly found that the use of
the plaintiffs' land for a cemetery will not be detrimental
to the public health. With the question of health left out,
and substituting for the words ^^ common convenience and
necessity " the definition which the appellant insists is the
only allowable definition of what the words mean, and the
statute, so far as it can apply to the land of the plaintiffs,
will read : " No cemetery or place of sepulture shall here-
after be located * * * unless the Superior Court * * * shall
find that such cemetery or place of sepulture so proposed to
be located is one where eveiy person for the same measure
of money has the same measure of right to be buried."

Apart from considerations of health it is just as lawful for
the owner of land to bury his dead in his own soil as it is for
him to sow wheat therein or to set out a rose bush. What
the owner may do himself he may permit others to do, and
upon such terms or under such restrictions as he may
choose to impose. He may grant or refuse permission to
bury the dead in his field upon precisely the same terms or
upon the same sort of conditions that he may grant or refuse
permission to sow wheat or plant roses there. And in either
case, if he limits his permission to those only who agree
with him in denominational beliefs, he violates no law.

We are brought then to this result — that if the statute is
to bear the construction which the appellant puts upon it, it
becomes an arbitrary command to the plaintiffs not to use
their land for a private cemetery while permitting the same
land to be used for a public one ; thus depriving the plaint-
iffs of a lawful private use of their own land without com-
pensation and without reason. We think, as no land is
taken for public use, that part of the statute must be re-
garded as satisfied by a use so far public as this one is.
Vol. Lvin— 7


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98 NOVEMBER, 1889.

State V. Glerkin.
There is no error in the judgment complained of.

In this opinion the other judges concurred.

,-g- The State vs. John J. Clbrkin.

;« m

I 67 m 2^ew Haven and Fairfield Dist., Oct T., 1889. Andbbws, C. J., Cakpbw-
TEB, Beaadslet, Pbemtice and J. M. Hall, Js.

Gren. Statutes, § 1637, provides that appeals from the rulings and decisions
of the Superior Court upon all questions of law arising on the trial of
criminal cases may he taken hy the State, in the same manner and to
the same effect as If made hy the accused. Held that the right of ap-
peal here given is not limited to errors committed during the trial, in
the strict sense of that term, hut extends to errors in any earlier part
of the proceeding which could inordinary cases be reviewed upon error.

Qen, Statutes, § 1583, provides that any agent of a public community who
shall, with intent to prejudice it, appropriate its property to the use of
any pei*son, or make upon its hooks any false entry, or aid in procuring
to be allowed any fraudulent claim, shall be fined, etc. Under a vote
of a town authorizing the selectmen ** to employ such assistance for
the office of the town agent as in their Judgment might be necessary,"
the selectmen employed the defendant to assist in the care of the pau-
pers of the town and to aid in making disbursements for their relief,
and to make on the books of the town proper entries concerning them.
Upon an information charging that the defendant, while so employed
at the cost of the town, did as agent of the town aid in procuring fraud-
ulent claims to be allowed, and did other fraudulent acts specified in the
statute, it was held, upon a demurrer to the information, that the de-
fendant was in such employment an agent of the town, and as such
liable to prosecution under the statute.

[Argued October 26th— decided October 80th, 1889.]

Information charging the defendant, as agent of the
town of New Haven, with certain fraudulent acts, under
Gen. Statutes, § 1683 ; brought to the City Court of the
city of New Haven. The defendant was bound over to the
Superior Court, in which court the defendant demurred to
the information. Demurrer sustained (^Torrance^ J".,) and
defendant discharged. Appeal by the State for error in the


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NOVEMBER, 1889. 99

State V. Clerkin.

decision of the court on the demurrer, under Gen. Statutes,
§ 1687. The case is fully stated in the opinion.

J. W. Ailing^ for the State.

W. B. Stoddard and J. P. Pigott^ for the defendant.

Prentice, J. The defendant was arraigned upon a com-
plaint which alleged that he was "an agent of the town of
New Haven, employed by the selectmen of said town at its
cost and charges, under special authority of said town con-
ferred by certain votes of annual town meetings of said town
duly warned and held for that purpose, * ♦ ♦ which votes
were alike in form and a copy thereof is as follows : * Voted^
that the selectmen be and are hereby authorized to em-
ploy such assistance for the ofiBce of the town agent as in
their judgiAent may be necessary, and to fix the amount of
compensation for the same ; ' that the said Clerkin was so
employed to assist said selectmen in the care of the paupers
of said town, and more especially to aid said selectmen in
making disbursements of money for the relief of the pau-
pers of said town, and to make on the books and accounts
and papers of said town the proper entries concerning the
paupers of said town, and prepare the necessary orders on
the treasurer of said town for the money so to be disbursed
for the relief of said paupers." The complaint then charged
that while he was so acting and in the performance of his
duties in said capacity, he misappropriated sundry sums of
money belonging to the town, made false entries upon its
books, drew certain orders upon its treasury with intent to
prejudice it, and aided to be allowed fraudulent claims against
it, in the manner specifically set out in the twelve counts of
the complaint.

To this complaint the defendant demurred, and for his
substantial ground of demurrer assigned the following: —
** because it appears that every overt act alleged to have been
done by the defendant was done in his capacity as clerk and


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100 NOVEMBER, 1889.

State V. Clerkln.

employee of the board of selectmen of said New Haven, and
not as agent or officer of said town."

The court below sustained the demurrer, and ordered the
prisoner discharged. The State appealed.

The defendant moves to erase the case from the docket of
this court, claiming that the statute authorizing appeals by
the State in criminal cases does not extend the right of such
appeal to errors in proceedings upon demuiTer, but is limited
to errors committed by the court after the jury has been im-
paneled, or at least after the prisoner has been put to plea.

The statute in question (Gen. Statutes, § 1637,) reads as
follows : — " Appeals from the rulings and decisions of the
Superior Court ♦ ♦ ♦ upon all questions of law arising on
the trial of criminal cases, may be taken by the State ♦ ♦ ♦
in the same manner and to the same effect as if made by the
accused." The words " arising on the trial " are relied upon
by the defense as limiting the right of appeal as 'stated.

An examination of the history and judicial construction
of our statutes substituting appeals for former modes of re-
lief, shows the fallacy of this claim. The original act (Ses-
sion Laws of 1882, p. 144,) reads as follows : — " All ques-
tions of law arising on the trial of any cause or action, civil
or criminal, ♦ •♦ ♦ which may now be carried to the Superior
Court or the Supreme Court of Errors for revision by motion
for a new trial, either for errors of a judge or verdict against
evidence or for any other cause whatever, or by motion in
error, shall hereafter be removed to such higher court by an
appeal from the judgment of the coui-t where such cause or
action was tried, and no motions for new trials or motions in
error shall hereafter be allowed ; but this act shall not affect
writs of -error or petitions for new trials."

Here the intention is unmistakable that by ^'questions
of law arising on the trial " is meant all questions which
could theretofore have been reviewed, either upon motions
in error or motions for a new trial, and such has been the
interpretation of the act by this court. Schlesinger v. Ohap'
man^ 62 Conn., 272 ; Brewster v. Cawen^ 65 id., 152.

It will be noticed in a study of this act that the words and


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NOVEMBER, 1889. 101

Stftte V. Clerkio.

phrases which so plainly indicate the intent are not so used
as to enlarge or amplify the words descriptive of the appeal-
able questions. Whatever questions are made subjects of
appeal are so because they come within the meaning of the
descriptive words " questions of law arising on the trial."

We might well here rest upon judicial construction, but
it is interesting to follow further the history of these stat-
utes and to gather their intent tbys so plainly indicated, and
to note to what strange conclusions the interpretation asked
by the defendant would lead us. The provision regulating
appeab in civil actions as it now appears in the revision (Gen.
Statutes, § 1129,) authorizes them whenever '* either party
thinks himself aggrieved by the decision of the court upon
any question or questions of law arising in the trial." If
the defendant's construction is the proper one, then clearly
the rights of appeal in civil actions must be held to be re-
stricted to those questions arising after an issue of fact has
been joined and ^^ the trial " (using that word in the sense
contended for by the defendant,) begun. The argument
made in behalf of the motion to erase leads inevitably to
that conclusion. In justifying such a conclusion we should
be obliged not only to override the former decisions herein-
before referred to, but to revolutionize the practice of our
courts and throw into wildest confusion the methods of re-
vision of a large class of questions arising in the trial of

It is suggested that the language of section 1685, which
is that any defendant aggrieved by any decision arising
** upon the trial thereof or by any error apparent upon the
record of such prosecution, may be relieved by appeal, peti-
tion for new trial, or writ of error, in the same manner,"
&c., indicates that the legislature had in mind a distinction
of the nature claimed bj*^ the defendant. We fail to appre-
ciate the force of this argument. Evidently the words, "or
by any error apparent upon the record," have their oflSce and
significance with reference to the reservation of the right of
writ of error which the section makes and not to the right
of appeal*


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102 NOVEMBER, 1889.

Stftte V. Clerkin.

Without further discussion of the statutes we Tvill only
add that we are clearly of the opinion that the true intent
and meaning of our statutes governing appeals is to make
the right of appeal in both civil and criminal cases, and as
to all parties, whether private litigants, accused persons
under prosecution, or the State itself, co-extensive, and so
comprehensive as to embrace all matters which could have
formerly been reviewed either upon motions in error, writs
of error or motions for a new trial.

The appeal presents the simple question as to whether or
not the defendant was, under the allegations of the com-
plaint, an officer or agent of the town of New Haven within
the meaning of section 1683 of the statutes.

Omitting any reference to the effect of the distinct alle-
gation in the complaint of an agency, and confining our con-
sideration to the particular facts alleged to establish and
define the relations of the parties, we notice that the defend-
ant was employed by direct authority of the town, that he
was paid by the town, and that his duties appertained to the
concerns of the town as such. His duties related to the care
of the poor of the town and to the distribution of the funds
of the town for that purpose. While so acting he was aid-
ing the town in the performance of a duty which is cast
upon it in its corporate capacity (Gen. Statutes, § 3295,) and
of which the selectmen are made superintendents and over-
seers (Gen. Statutes, §§ 64, 8299.) The selectmen were in-
termediaries between him and the town and had the power
of supervision and direction over him. But he was never-
theless acting for the public weal. He was assisting the
town in the discharge of its public duty. Did similar rela-
tions exist between one individual and another or a private
corporation, there would be slender ground for claiming that
there was not an agency thus created. It would matter not
that the agency was not of the first degree, for a sub-agent
may be as readily and certainly the agent of the ultimate
principal as of his immediate superior. We fail to see how
the situation is changed by a substitution of a public corpo-
ration for a merely private one. The tests of the relation-

Digitized by VjOOQ IC

NOVEMBER, 1889. 103

Stftte 0. CUrkiu.

ship must remain the same, unless perchance there be some
legal obstacle to the existence of an agency relation grow-
ing out of the nature and powers of public corporations.

In the brief of the defendant it is suggested that such an
obstacle exists, either in the want of power in the town to
authorize the employmetit, by or under the supervision of
the selectmen, of a subordinate to assist in the care of the
poor, or in the inability of the selectmen to delegate that
which was within the scope of Clerkin's duties. By statute
the duty of caring for the poor is cast upon the town. This
obligation necessarily carries with it rights and powers com-
mensurate with its proper performance. The town therefore
in its adoption of reasonable ways and means to execute its
legally appointed duty in caring for its poor, was not thrown
upon the exercise of inherent powers, but was availing itself
of powers granted by necessary implication.

Selectmen are made the superintendents of the concerns
of the town and the overseers of its poor. Whatever may
be said of the nature of their duties in certain features of
them, we see no reason why the functions of Clerkin, as
they appear in the complaint, being purely ministeiial, could
not have been lawfully exercised by him.

It is urged by counsel for the defense that the term
"agent" should in its application be restricted to embrace
only those agencies which are specifically recognized by stat-
ute, and we are asked to hold that as certain statutory agents,
such as agents of town deposit funds, town agents, etc., are
expressly authorized, none other should be included within
the appellation. We fail to appreciate the force of this ar-
gument of exclusion.

Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 58 → online text (page 9 of 60)