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question upon any other consideration than the effect upon the public health of such location.

I have read the statement of facts furnished by you and herewith returned. It appears from this statement of facts that the provisions of the thirty-third section of the act concerning cemeteries (Gen. Stat., p. 355) were complied with; that the application for the location of the new cemetery had been made in writing to the municipal authorities, had been approved by such authorities and been referred to the board of health for its approval. It further appears from this statement that the giving of the consent by the board of health was opposed by counsel acting for :several hundred citizens, who had remonstrated in writing against the granting of the consent of the board to the location of the cemetery. It further appears that counsel for the remonstrants admitted, at the hearing before the board, that there were no objections to the location of the cemetery from any sanitary consideration; that if a new cemetery was to be located in Bloomfield, no better location could be selected;

that if it was proposed to locate the cemetery on the adjoining tract of land, owned by the Gillespie estate, situate in the township of Belleville, the people of Bloomfield would not have any objections; that no questfon of health was involved in the matter; that the objection was purely sentimental, and arose from the fact that the people of Bloomfield did not want an additional cemetery within the area of the town.

The powers of the board of health of the town of Bloomfield are defined by law; they are the same as those conferred upon the State Board of Health, which, in section 2 of the statute, are thus described (Gen. Stat., p. 1634, § 2): "The State board shall take cognizance of all matters affecting health and life among the citizens of this State, shall make sanitary investigations and inquiries in respect to the people, the causes of diseases, and especially of epidemics and the sources of mortality, and the effects of localities, employments, conditions and circumstances on the public health; they shall also make investigations and inquiries into the sanitary condition of any State, county, city or township almshouse, asylum, prison, penitentiary, jail, reform school, school-house or other public building, and of tenements, manufactories and workshops.” This is a legislative definition and description of the character of the powers possessed by the State board. The Cemetery act (Gen. Stat., pp. 354, 355) is purely sanitary in its objects. The first section prescribes the manner of burying dead bodies. A subsequent section prohibits the deposit of dead bodies in receiving vaults of a certain character for more than forty-eight hours, within certain periods of the year. Another section authorizes the municipal authorities, or any local board of health, by its officers or agents, to enter into any cemetery or burying-ground within its limits, to examine into the condition and ascertain whether the laws regulating it are duly observed. The next section is the only one under which power is given to the local board of health to approve or disapprove of the location of a new cemetery, and the question presented for consideration arises under that section. In my opinion, the object for the organization of the State Board of Health, as well as of all the local boards, is to preserve and protect the public health. Their function is purely and exclusively a sanitary one. Their action cannot, with propriety, be influenced by any other than sanitary considerations. It seems to me quite obvious that the legislation referred to, under which their approval is required to the location of a new cemetery, is utterly destitute of any provision which confers upon the local board of health the power to grant or refuse permission for the location of a new cemetery upon sentimental or commercial considerations. The board must be influenced wholly by the single question as to whether or not the public health will be, in its opinion, injuriously affected by the location of the cemetery. It is manifest from the concessions of counsel above cited that the objection to the location of the new cemetery was absolutely and entirely sentimental. It did not, in any degree, involve any question of sanitation. It was not claimed that the public was, or could, under any circumstances, be injuriously affected by the location of the new burying-ground, and in my judgment the board of health erred in permitting itself to be influenced by any other consideration than the single one of the benefit or disadvantage to the public health which the location of the new cemetery would involve. I have read your argument, a typewritten copy of which I herewith return, and I entirely concur in the views which you expressed and the conclusions which

you reached.

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7. COPY OF PETITION OF JOHN H. FRANCISCO AND OTHERS TO THE TOWN

COUNCIL OF THE TOWN OF BLOOMFIELD, TO LOCATE A NEW CEMETERY
IN SAID TOWN.

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To the Honorable the Town Council of the Town of Bloomfield, in the County of Essex,

and also to the Honorable the Board of Health of the Town of Bloomfield, in the

County of Essex : Your petitioners, John H. Francisco, Charles H. Barkhorn, Theodore F. Lemassena, Rev. Masheim S. Waters, all of the city of Newark, in the county of Essex ;; Otto E. Schaeffer, of the town of Montclair, in the county of Essex ; Rev. Eugene E. Neudewitz and Rev. Elmer W. Fulper, of Jersey City, in the county of Hudson, respectfully show that they desire to locate a new cemetery in the town of Bloomfield, upon premises shown on the map accompanying this petition, which premises. contain about thirty-six acres. And they respectfully pray the consent and approval of the municipal authorities and board of health of the said town of Bloomfield, in which it is proposed to locate said new cemetery.

And your petitioners, as in duty bound, will ever pray, &c.

John H. Francisco, Chas. H. Barkhorn, Theodore F. Lemassena, Masheim S. Waters (Rev.), Otto E. Schaeffer, Eugene E. Neudewitz, Elmer W. Fulper.

Dated December 24th, 1900.

8. COPY OF RESOLUTION PASSED BY TOWN COUNCIL OF BLOOMFIELD, GRANTING

APPLICATION OF JOHN H. FRANCISCO AND OTHERS TO ESTABLISH A NEW

CEMETERY IN THE TOWN OF BLOOMFIELD.

WHEREAS, John H. Francisco and others have petitioned the town council of the

town of Bloomfield and the board of health of said town of Bloomfield, praying the consent and approval of the municipal authorities and board of health of said town of Bloomfield to the location of a new cemetery in the town of Bloomfield, upon the premises shown on the map accompanying said petition and filed therewith on January 7th, 1901, which premises contain about thirty-six acres, and are bounded on the north by Franklin avenue, on the east by the line of the township of Bellegille, on the west by a right of way known as Davey's lane, and extending back on the south to Third river and the raceway thereof, and other lines as shown on said map; now, therefore, be it

Resolved, That the town council of the town of Bloomfield, in the county of Essex, being the municipal authority of said town, do hereby consent to and approve of the docation of a new cemetery in the town of Bloomfield, upon the premises shown on the map accompanying said petition of John H. Francisco and others, and this consent shall take effect when the board of health of said town of Bloomfield shall have given a like consent to and approval of the location of said new cemetery, as prayed in said petition.

A true copy of a resolution passed by the town council of the town of Bloomfield, February 4th, 1901. (L. 8.]

Wm. L. JOHNSON,

Town Clerk.

9. COPY OF STATEMENT OF FACTS PRESENTED BY HALSEY M. BARRETT, ESQ.,

AT A HEARING GIVEN BY A COMMITTEE OF THE BOARD OF HEALTH OF
THE STATE OF NEW JERSEY IN THE MATTER OF THE APPLICATION OF
JOHN н. FRANCISCO AND OTHERS FOR CONSENT TO LOCATE A NEW

CEMETERY IN THE TOWN OF BLOOMFIELD.

In the matter of the application of John H. Francisco and others for consent to

the location of a cemetery in the town of Bloomfield. Statement of facts by

Mr. Barrett. On December 24th, 1900, John H. Francisco and others, presented to the town council of the town of Bloomfield, in the county of Essex, a petition addressed to the town council of the town of Bloomfield and also to the board ealth of the town of Bloomfield, praying the consent and approval of the municipal authorities and board of health of the said town of Bloomfield to the location of a new cemetery in said town, upon premises shown on a map accompanying said petition and filed therewith with the town clerk, which premises contain about thirty-six acres of land. The premises in question are a part of the Gillespie estate, and are located in the northeasterly corner of the town, adjoining the township of Belleville. This section of the town is very sparsely settled, not more than a half dozen houses being located within a half mile of the premises. The Gillespie estate is the owner of the property on three sides of the proposed cemetery, and Franklin avenue, a public highway under the care of the county, is the northerly boundary of the tract.

On December 24th the application was referred to a committee of the town council for its consideration. At the next regular meeting of the town council, held on January 7th, 1901, the committee reported to the council that they had examined the locality and had also inquired of persons who might be interested, and that there was no objection from any source to the granting of the application, and recommended that the council give its consent to the location of a cemetery.

At the request of one of the members of the council, action was deferred for two weeks, and on January 21st, the next regular meeting of the council, no objection was made either by citizens or by any members of the council, and the consent was granted, four of the members of the council voting in favor and two voting against it, and the chairman not voting. As a matter of fact, the chairman declared himself in favor of granting the request.

The resolution adopted by the town council was as follows:

WHEREAS, John H. Francisco and others have petitioned the town council of the

town of Bloomfield, and the board of health of said town of Bloomfield, praying the consent and approval of the municipal authorities and of the board of health of said town of Bloomfield to the location of a new cemetery in the town of Bloomfield, upon the premises shown on the map accompanying said petition and filed therewith on January 7th, 1901, which premises contain about thirtysix acres, and are bounded on the north by Franklin avenue, on the east by the line of the township of Belleville, on the west by a right of way known as Davey's lane, and extending back on the south to Third river and the raceway thereof,

and other lines as shown on said map; now, therefore, be it Resolved, That the town council of the town of Bloomfield, in the county of Essex, being the municipal authority of said town, do hereby consent to and approve of the Location of a new cemetery in the town of Bloomfield, upon the premises shown on the map accompanying said petition of John H. Fransisco and others, and this consent shall take effect when the board of health of said town of Bloomfield shall have given a like consent to and approval of the location of said new cemetery as prayed in said petition.

The petition was then presented to the local board of health of the town of Bloomfield, at its regular monthly meeting held on February 21st, and on motion it was laid over to be considered at an adjourned meeting of the board of health, to be held on Tuesday, March 5th. At this meeting a remonstrance against granting the consent of the board of health to the location of the proposed cemetery was presented, signed by about two hundred citizens of the town; only three or four citizens who had signed such remonstrance were present.

It was admitted at the hearing, by H. E. Richards, Esq., who acted as counsel for the persons signing the protest, that there were no objections to the location of such cemetery from any sanitary consideration; that if a new cemetery was to be located in Bloomfield, no better location could be selected; that if it was proposed to locate said cemetery on the adjoining tract of land owned by the Gillespie estate and situated in the township of Belleville, the people of Bloomfield would not have any objection thereto; that no questions of health were involved in the matter; that the objections were purely sentimental and arose from the fact that the people of Bloomfield did not want an additional cemetery within the area of the town.

It was contended by Halsey M. Barrett, counsel for the petitioners, that the board of health could not consider such objections as these; that the consent of the town council disposed of all such considerations; that the jurisdiction of the board of health was based wholly on the fact that such a cemetery might be either a public or a private auisance from a sanitary point of view.

The president of the board of health asked the counsel of the town whether the board would be limited in their consideration of this matter to the question whether the proposed cemetery would be a menace to the health of the people of the town, and the town counsel stated his opinion that the board of health were not so limited, but inasmuch as the act relating to cemeteries did not expressly limit their jurisdiction to this point of view, they were free to refuse their consent for any other reason or for no reason at all, and that they were not bound to give any reason for their reft al.

Acting on this advice, and because the board of health desire to be governed by the wishes of certain persons who had signed the remonstrance, the board, without any discussion or argument among themselves, and without stating their individual views, passed a resolution that the application be denied, and this resolution was carried by the votes of four of the members of the board of health, the chairman noe voting; the board consisting of five members.

There are but two incorporated cemeteries in the town of Bloomfield. One is the old cemetery known as the “Bloomfield Cemetery Company,” of which the larger part is within the limits of the borough of Glen Ridge, and about one-third of whosearea is in the town of Bloomfield. The other is a Roman Catholic cemetery.

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10. COPY OF ARGUMENT OF COUNSEL FOR PETITIONERS.

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In the matter of the application of John H. Francisco and others for consent to

locate a new cemetery in town of Bloomfield, in county of Essex. Argument of

Halsey M. Barrett, attorney for petitioners. In the case of Gavett v. The State, 20 Vroom 102, Judge Knapp, stating the opin-ion of the court, declares : “The object of the legislation constituting boards of health and marking out their duties was to prevent nuisances in conservation of the public health.” And declares that “this purpose is the single object of their creation and sole guide in action." He further says on page 103 : “The purpose wbich: the legislature had in view in creating boards of health was to supply additional means to prevent disease and discomfort such as might arise from contamination of air, water or food."

Hutton v. Camden, 10 Vroom 132. The ignorant, hasty and indiscreet conduct of this board of health is an admonition not to be disregarded, against listening to any claim that, under any circumstances, the power of ultimate judgment over the law and facts, with respect to the rights of persons or of property, can be safely confided to other hands than those of the ordinary judicial tribunals. See Westcott v. Middleton, 16 Stew. Eq. 473.

A board of health, whether it be a State or local board, is the creation of the State with its powers and duties either expressly defined by the statute or necessarily implied therefrom. Its powers and jurisdiction relate exclusively to questions affecting the health and sanitary condition of the public, whose health guardians they are. Their powers, conferred by statute, are full and ample in this respect. While they are an independent board, they are also a subordinate board, appointed by the local municipal authority to perform such duties as the legislature has imposed upon them. They have no right to legislate upon any subject not pertaining to the health and sanitary condition of their locality. They have no right, in legislating upon any subject properly within their jurisdiction, to consider the same or to determine their final action by any other consideration than the health of the locality.

The act respecting cemeteries, in its thirty-third section, requires that the consent. of the municipal authorities and of the board of health of the city, town, townshipor borough in which it is proposed to locate or enlarge a cemetery, shall first be obtained, and if such consent be refused an appeal is given to the State Board of Health.

The same act provides that the municipal authorities and the board of health may enter into and upon any cemetery or burying-ground within the limits of said municipality, and examine into the condition of the same, and ascertain whether the laws relating to it are duly observed. Also provides, in section 35, that the municipal authorities may prevent further interments in existing cemeteries where such further interments are dangerous to the public health.

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