From all of these references to the statute it is obvious that, with respect to the location of a cemetery in any town of this State, the consent of the local board of health to such location is required upon only one theory, and that is that such cemetery as proposed may prove to be a public nuisance and injurious to the health of the community.

The question of the need or desirability of an additional cemetery in this town is to be determined by the town council, the governing body, and then the concurrent consent of the board of health is required; but that concurrent consent is only required from them as the guardian of the health of the community, and that is the only question for them to determine. They have no right to constitute themselves a board to review and veto the action of the town council; they have no jurisdiction to sit as a Court of Appeals upon the action of the town council; they have no right to consider the petitions of taxpayers or citizens respecting such a matter unless such petitions and views are based upon questions of public health.

The question before this board to-night is whether the location of a cemetery upon the premises described in the petition of Francisco and others will be a public nuisance and injurious to the health of the inhabitants of the town of Bloomfield, and that is the only question which you have a right to consider or determine The consent of the town council, the governing board of this municipality, has disposed of all other questions relating to this application, and that consent is to take effect upon receiving a consent from this board.

Will the location of the cemetery as asked for in this petition be a public nuisance? The courts have held that a burial-ground, even when near dwellings, is not necessarily a nuisance, and its use can only be enjoined on clear proof of probable injury. Amer. Ency. of Law, vol. 3, p. 55.

In the cases cited in support of this statement it is stated: "If, however, it can be clearly proven that a place of sepulture is so situated that the burial of the dead there will injure either life or health, by corrupting the surrounding atmosphere or the water of wells or springs, a court will grant injunction relief;" and the court says: "Burial places for the dead are indispensable; neither adjoining proprietors nor the public can complain unless it is shown that, from the manner of the burial or some other cause, irreparable injury will result to them. It is quite an error to suppose that, of itself, a burying-ground is a nuisance to those living in the vicinity; much depends upon the mode of interment, whether it can be justly asserted that in any event injury will result from it. The particular locality and its surroundings must also be considered." And in other cases the courts have said: "A repository for the dead is indispensable, and wherever located it must, from necessity, be in the vicinity of the private property of some one who might prove its market value injuriously affected thereby. Cemeteries are not necessarily even shocking to the senses of ordinary persons. Many are rendered attractive by whatever appropriate act, art and skill can suggest, while to others of morbid or excited fancy or imagination they become unpleasant and induce mental disquietude from association exaggerated by superstitious fears. The law protects against real wrong and injury combined, but not against either or both when merely fanciful. The human contents of these graves cannot, as they lie buried there, offend the senses in a legal point of view. The memorial stones alone affect the senses, and the same would result to the superstitious, though nothing human lay beneath them. If a burial-ground is, under the circumstances, a private nuisance, then it is also a public nuisance to every trave'er who passes the road, and so alsɔ is every soldier's monument in the country."

No one will have the hardihood to suggest that the location of the proposed cemetery will be either a public or a private nuisance. If this board were compelled to designate thirty-four acres in the town of Bloomfield to be used for cemetery purposes, it may well be doubted if any other location could be chosen so free from objection as the proposed property. If this board shall officially determine that a due regard for the health of this community requires that they shall withhold and refuse their consent to the location of this cemetery, what can you say respecting the location of other cemeteries in this town? Would you not be compelled, by the same consideration for the public health, to declare the Bloomfield cemetery, which is surrounded by private dwellings, also a public nuisance, and, under the power given you by the statute, prohibit further interments therein? The law says that there may be three cemeteries and not more in any municipality of this State, and the courts have said that burial places for the dead are indispensable. Neither this board nor the town council have a legal right to change this law and say that not more than one or two cemeteries shall exist in this town; nor have they a right to refuse this present application, in order that a consent and permission may be granted some time in the future to some other applicant. The Gillespie estate is a taxpayer of this town. They have a right to sell their property for any lawful purpose, and where such lawful purpose requires the consent of the municipal authorities and the board of health, they have a right to expect and demand, even, that such conseat shall be given unless strong prevailing legal reasons exist for withholding such consent. You have no right to say that the Gillespie estate shall not sell its land ffor the purposes of a cemetery, in order that some time in the future some other person or estate may sell its land in this town for such purpose. You have no right to be influenced by prejudice or partiality. You are to determine this application on its merits alone, and are only authorized to withhold this consent on reasonable and legal grounds, giving your reasons therefor, in order that such refusal may be reviewed by the State Board of Health, to which, by the statute, an appeal may be taken The question of the residence or non-residence of the applicants cannot affect you, for the statute places no prohibition of this sort over the location of cemeteries. The question whether interments shall be made of the bodies of people who shall die outside of this town cannot affect you, for the law makes no such prohibition The question of whether the bodies of the dead shall be carried through this town for interment in the cemeteries of this town cannot affect you, for you have no power or either legal or moral right to regulate this, except as to the manner, from the point of health alone. Even the dead have some rights which the living are bound to respect, and one of these rights is the right of interment or sepulture.

As to whether this cemetery, when located, shall be properly conducted and maintained in such a way as not to be either a public or private nuisance, the law gives you the fullest and amplest power. Both you and the municipal authorities, as before stated, have a right personally, or through your inspectors and agents, to at all times enter upon the property of any cemetery association, and satisfy yourselves that the business there conducted and the manner of interments is in accordance with law and not injurious to the public health. You are authorized by law to pass ordinances, general in their character and reasonable in their terms, regulating these matters, and not in conflict with the State law relating to the same subjectmatter.

It may be urged that if this cemetery shall be located upon the premises described, the sale of lots in other existing cemeteries may be affected thereby. I do not believe

there is any force in this objection, but if there were force in it, and if you believed that that would be the result, you would have no right to be influenced in your decision of this application by such a fact. The law contemplates that there shall be as many as three cemeteries in the town of Bloomfield, and such a contemplation necessarily involves the choice as to the place of interment or purchase of burial lots, and if persons compelled to acquire a resting place for their dead cannot afford to purchase burial places in one cemetery, it is perhaps well that they should be able to purchase lots in another cemetery in this town, near enough to them for convenient access, and not be compelled to buy a lot in a cemetery in some other community.

In order that you may fairly judge of the merits of this application and of the sentimental and groundless character of the objection thereto, I ask you to consider this question: Suppose that Mr Francisco and his associates had desired to locate a cemetery upon the property belonging to the Gillespie estate, which lies directly east of the property in question and across the line in the township of Belleville. Do you suppose for one moment that either this board of health or the citizens of this town would have taken any interest in such application? Would you or they have presented any protest to the town committee of Belleville against granting such application? Would you or they have considered that such a cemetery, located a few hundred yards east of the proposed location in this town, could or would be an injury to the health of this community? Would people of this town have industriously circulated petitions praying the Belleville authorities and the Belleville board of health not to grant such application? And yet you and they would have a right, both legal and moral, to have made such a protest; and if you could show and demonstrate that the location of such a cemetery on the border line of this township would prove an injury to the health of the people of this town, and would become a public nuisance, you would have a right, under the laws of this State, to apply to our courts and to secure an injunction restraining the applicants from maintaining such a cemetery there.

While boards of health have jurisdiction only within the municipality which they represent, the courts have jurisdiction throughout the State, and the board of health of one town, or State at large, has a right to apply to the court to prevent the creation of a public nuisance in an adjoining community, which will prove a public nuisance to the public of their own community.

The Disposal Works in East Orange were enjoined from carrying on their operations in such a manner as to become a nuisance in this town. Every municipality has a right to be protected, not only against nuisances erected within its own borders, but also against nuisances conducted beyond its limits which are, nevertheless, nuisances to that town.

Unless, then, you shall find as a matter of fact that the location of a cemetery upon Franklin avenue, on the remainder of the Gillespie farm, located in the township of Belleville, would be a public nuisance and a public injury to people of this town, you will not be justified in finding as a matter of fact that the location of the proposed cemetery will be a nuisance and an injury to the people of this town, unless you shall also find as a matter of fact that the few hundred yards in difference between such two locations, from the nature of the soil, creates a distinct difference, which renders one objectionable and the other unobjectionable, and when you put this question to yourselves fairly and undertake to answer it, as you are bound to answer it, on the facts and according to your honest judgment and convictions, I am

satisfied that you will not be able, officially, to determine that any good and legal? and valid and reasonable cause exists why the application now made shall not be granted.

11. COPY OF PETITION OF THIRTY-TWO RESIDENTS OF THE DISTRICT IN WHICH IT IS PROPOSED ΤΟ LOCATE THE NEW CEMETERY IN THE TOWN OF BLOOMFIELD.

To the Honorable the State Board of Health, Trenton, N. J.:

GENTLEMEN-We, the undersigned, residents and property owners of the town of Bloomfield, and the townships of Belleville and Franklin, do hereby respectfully request that you will grant the petition of John H. Francisco and others for consent to the location of a cemetery on the south side of Franklin avenue, in the town of Bloomfield, as prayed in said petition.

We believe that the location of a cemetery on the tract described in said petition will not be an injury to the adjoining property or to that portion of the town, but that, on the contrary, a well-kept and attractively-laid-out cemetery would be of advantage to the adjoining property and to the neighborhood.

Yours respectfully,

Lucy G. Francisco, Samuel Joralemon, Calvan Rutan, Howard Rutan, John H.. Herman, Henry Herman, Jacob F. Flories, Mrs. J. Callaghan, Annie L. Van Winkle, Leah Van Winkle, John Roth, Ernest P. Cook, Melvin Van Winkle, Samuel! Hopper, Samuel M. De Vausney, William H. De Vausney, Walter Rushmer, Robert Rushmer, J. A. Oakes, A. Mary Troufeter, Jacob Troufeter, Lewis Cochefsin, Alexander McNair, Louis T. McNair, John Dausney, Anna E. Kingsland, Amanda Kingsland, Mary F. Marsh, B. N. Marsh, Joseph Martin, Matilda Francisco, John H. Francisco.

Dated April 16th, 1901.

12. COPY OF STATEMENT BY THREE LUTHERAN CLERGYMEN.

St. James' Lutheran Cemetery is a corporation owned and controlled by Lutherans of undoubted honor and loyalty. The incorporators are known in their church for years, and are of perfect repute. The organization is pledged to pay to the Lutheran church more than thirteen per cent. of all its receipts, and proper security has been given to guarantee the same. This arrangment will prove to be more than satisfactory to the Lutherans of Newark and vicinity. Rev. M. S. Waters accepted a position as member of the advisory board, to direct the expenditure of moneys accruing to the churches. This fact was published by the company, and Rev. Waters objected to this publication.

Rev. Waters does not stand for the entire Lutheran community. Because of representations of persons unknown, he suddenly changed his mind, and at present is co-operating with those who are the natural enemies of the new Lutheran cemetery. The cemetery will be a blessing to the Lutherans of Newark and vicinity. The undersigned testify that it is their earnest desire that St. James' Lutheran Cemetery be permitted to proceed in its affairs as soon as possible.

Rev. J. FRED. W. KITZMEYER,

Rev. ELMER W. FULPER,

Rev. EUGENE E. NEUDEWITZ.

13. COPY OF OPINION OF ROBERT H. M'CARTER, ESQ.

DEAR SIR-An application has been made to the local authorities and board of health of the township of Bloomfield for permission to locate within the limits of that town a new cemetery. I am informed that the local board of health has not yet acted upon this application, and my opinion is asked whether, under the law governing the situation, their consideration of the application is confined to questions of health or sanitation, or whether they have an unlimited discretion—in the legal sense of that term-in the premises.

I have given the subject considerable examination and reflection, and have reached the conclusion that it is improper to advise the board of health to restrict its judgment and decision upon the application within the narrow limits of reasons applicable to health or sanitation In other words, I believe the same breadth of scope of inquiry pertains as well to the board of health as to the other local authorities in considering the application; and, therefore, that if, for any reason, the board of health deems it injudicious to grant the application, they have a perfect right to deny it, and that its reasons can neither be inquired into, after a conclusion is reached, nor limited or restricted in advance of such conclusion.

My reasons for this view are, briefly, as follows:

The question of the propriety of locating a new cemetery or enlarging an old one, in a given locality, has always given rise to differences of opinion among the residents of such locality, and of the courts, when appealed to by them to prevent the adoption of the proposition. Cemeteries are generally considered unhealthy, but this is not the only objection that obtains against them. The sentimental and superstitious feeliugs in regard to their propinquity have created widely prevalent objections thereto, with the consequent result that their location has ordinarily resulted in a depreciation of the value of neighboring property. Courts of equity, however, have studiously declined to interfere in advance to prevent the location of a cemetery in a given locality, upon abstract principles of the law of nuisance, on the ground that they cannot in advance of the fact, determine whether or not the proposed cemetery will be so detrimental as to constitute a nuisance, and that inasmuch as a cemetery is not a nuisance per se, they therefore have determined. that they must refuse to act by way of injunction until the cemetery shall be proven to have become an actual nuisance The law upon this subject is authoritatively expressed in Judge Dillon's work on "Municipal Corporations," at section 373.

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In order to obviate the uncertainties and unsatisfactoriness of this view, the Legis'latures of the several States have from time to time enacted laws which have limited the number of cemeteries that can, under any conditions, exist in a given locality, and also requires the consent of some authority or tribunal before they can be either located or enlarged. Obedient to this tendency, the Legislature of New Jersey, in 1883 (P. L. 1883, p. 174), directed that "no more than three cemeteries shall be located or placed * * in any one city, township or town in any county of this State," and this provision, although amended in 1894 (P. L. 1894, p. 135), is still in operation. In 1885 (P. L. 1885, p. 165), the Legislature went further and provided: "That it shall not be lawful to locate any new cemetery or burying-ground, or to enlarge any cemetery or burying-ground in this State, without the consent and approval of the municipal authorities and board of health of the said township, town or borough in which it is proposed to locate or enlarge said cemetery or burying