[Document 110 — 1879.] CITY OF MR BOSTON. COMMUNICATIONS RELATING TO INTRAMURAL INTERMENTS. In Common Council, November 6, 1879. The Joint Special Committee on Intramural Interments beg leave to submit herewith several communications relat- ing to the closing of the Granary and King's Chapel Burying- grounds. As these communications have a special bearing upon the right of the City Council to close the ground under the present statute, and the extent to which the city would be liable in case of an adverse decision upon an appeal to a jury, the committee deem it proper that they should be pre- sented, for the information of the City Council. Respectfully submitted, JOSEPH A. TUCKER, JOSIAH S. ROBINSON, GEORGE T. PERKINS, JAMES J. BARRY, GEORGE H. WYMAN. Opinion of Hon. James M. Keith. Boston, Oct. 21, 1879. W. H. Whitmore, Esq. : — Dear Sir, — I have your note of- the 17th inst., in which you say that "in the debate on the matter of closing tombs, 2 City Document No. 110. all the opponents took this ground, — first, that the General Statutes, Chap. 28, Sect. 10, says that if the jur}' find that the tomb was not a nuisance, the order must be rescinded ; second, that your Board states these tombs not to be a nuisance ;" and you ask my opinion and that of the Board in relation to the law and facts touching the subject-matter. I may say, in the outset, that the Board has not made any such statement as that embodied in the second head above quoted ; and how anyone could have drawn any such inference from the testimony of members of the Board, imperfectly reported on pages 43, 44, and 46 of the appendix to the com- mittee's report, is beyond my comprehension. There ap- pears to have been a total misapprehension both of the law and facts under which the Board acted in its recommenda- tion that these tombs be closed to future interment. The action of the Board was under Sects. 1 and 2 of Chap. 182 of the Acts of 1877, and not under Chap. 28 of the General Statutes. The issue raised, therefore, and the one to be tried, is the one raised by the statute of 1877, and not the one specifically described in the General Statutes. This new statute, as it appears to me, materially changed the law governing the closing of tombs to future burials. It does not contemplate that the Board shall wait until a pestilence shall have arisen from the accumulated mass of human putrefaction buried in our midst ; but contemplates the action of the Board whenever it perceives that burials have gone to that extent that the further continuance of them will necessarily be prejudicial to the public health. In other words, its object was to prevent the use of tombs in a manner prejudicial to the public health. Under this statute the Board of Health reports, in its judgment, the public health requires that future interments in these tombs should be prohibited. The notice given to the owners is, to show cause why the report of the Board of Health should not be accepted and the tombs closed. The action of the City Council will necessarily be to accept or reject the report of the Board of Health ; and, in case of its acceptance, to order the tombs closed. The fifth section of the law gives the party aggrieved by the action of the Board or Council the right Of appeal in the manner provided by Sections 9 and 10 of Chapter 23 of the General Statutes. That is, the aggrieved party has six months in which to claim his appeal, and upon giving the notices required has a right of trial by jury. But to try what? Why, clearly to try the issue raised under the act of 1877, to wit, the adjudication of the Board, that "the public health requires that future inter- ments in these tombs shall be prohibited." Intramural Interments. 3 Now, was that adjudication correct, and should it be ap- proved or rejected ? That is the question in issue for discussion. It is a well- known fact, that as early as 1795, when Boston had a popu- lation of less than twenty thousand, the selectmen of the town, acting as a Board of Health, prohibited, as a health measure, further burials in graves in these two burial- grounds. Burials in the tombs have continued to the present time. The very able and exhaustive citation of authorities as to the effect of intramural burials, embraced in the report of the joint committee on that subject, renders it wholly unnecessary for me to pursue farther that inquiry. They show conclusively that the decomposition of human bodies sets free most active poisonous gases and effluvia, highly detrimental to the public health. Sanitarians agree in the declaration that burials in the ground are far less injurious than in tombs ; because the earth, if not already saturated, will absorb the gases evolved in decomposition, while the cracks and crevices of the tombs afford a free escape into the atmosphere. The dilapidated condition of many of the tombs in question is a matter of common notoriety, and has been a subject of complaint for years. But it is said some of them are in fair and some in good condition, and that the owners are ready to keep them so. What of it? Does it follow that these tombs should continue to be used as places of interment? By no means. First. Because the grounds in which they are placed, and the earth by which they are partly covered, are already com- pletely permeated and saturated with the gases generated by decomposition, until the earth can absorb no more. It is a law of physics that two bodies cannot occupy the same place at the same time. When, therefore, a body is placed in one of these tombs, as the air, bodies, and coffins already placed there till the interior of the tomb, the gases evolved in the putrefaction of this new body must of necessity escape into and contaminate the surrounding atmosphere. It is this use of the tombs, and not the tombs themselves, that is prejudi- cial to the public health. A tomb that has not been used for fifty years for burial purposes may not be of itself prejudicial to the public health, but opening it and its use for such purpose would make it so ; and it is that use in the future which is sought to be guarded against. Second. These tombs should not be used for burial pur- poses because they are in the midst of a dense population, which must breathe the air thus vitiated by them, and be injured more or less, in proportion to the constancy and 4 City Document No. 110. amount of such inhalation. One of these grounds, as you know, is bounded on three sides by dwelling-houses, some of which are in actual contact with the tombs, and all are within a few feet of them. The other ground is bounded on two sides by the Probate Court, the Kegistry of Deeds, and the City Hall, all of which buildings are constantly occupied by the city officials during the day, and are resorted to by thrones of people having business to transact there. It is hard to conceive, therefore, of a more unsuitable place for burial than these grounds, or one where the conse- quences of such burials would be more detrimental to the public health. But it is said many people testified that they had not per- ceived the escape of any deleterious gases from these tombs, nor felt any injurious effects arising from their present use. What of it? So, too, scores of families discover no sewer gases in their houses, and are offended at even the suggestion that their houses are in a non-sanitary condition, until perhaps scarlet fever or diphtheria carries away a loved child, when their physician points to their defective drainage as the sure cause of their bereavement. But if there are many who are not conscious of having suffered from the injurious gases issuing from these tombs, there are others who are conscious of having suffered from them often and acutely. The Board did not need to call witnesses from a distance to theorize or testify on this sub- ject ; it was surrounded with living examples of the effects of the emanations from these tombs. For three years it had occupied, against its oft-repeated remonstrance, an office in the City Hall, below the level of the surface of the adjoining burial-ground, and within a few feet of these tombs, the sick- ening odors from which tilled its rooms. Every member of the Bonrd, and many of its employes, as well as others under their observation, had been made sick by these gases. The foul smell produced by them was a common subject of remark and complaint by those visiting the office on business. The Board would have deemed it a cruelty to have permitted a poor family to have occupied such a place as a tenement, and would have ordered such a family to vacate it forthwith. When therefore the Board adjudicated that the public health required that these tombs should be closed to further burials, it did not act merely upon the theory that all such burials in populous places must be, according to all sanitary laws and experiences, prejudicial to the public health, but it had actual knowledge that such burials then were prejudicial to the public health; and, as like causes produce like results, Intramural Interments. 5 they could not fail to be prejudicial to the public health in the future. I have already spoken of the unsuitable location of these tombs as places of burial. One would certainly expect that the city would demand that the atmosphere around its City Hall, erected at so great a cost, should be free from poison- ous gases and the effluvia of putrefaction ; that its officials should be able to occupy the offices in it without danger to their lives or health. Would not the Board, with the ex- perience just recited, have been derelict in the discharge of its duty had it failed to recommend the closing of these tombs to further burials? Objection has been made to the adoption of the recom- mendation of the Board, to close these tombs to further burials, on account of the eminent fame of those whose re- mains repose in them ; and it has been asserted or insinuated that a desecration of their resting-place was contemplated. Nothing could have been suggested farther from the thoughts or purposes of this Board. It fails to see how a discontinuance of burials there, accompanied by a careful preservation of existing monuments, the cultivation of flowers and a constant supervision of the grounds, can be deemed a desecration. The action of the Board has been purely upon sanitary grounds, and for the protection of the public health. In guarding this, it could not be influenced by the considera- tion of the station in life of those whose remains lie in these tombs. The physical laws of decay act upon all alike without regard to station, sex, or condition. Dives in decomposition is no sweeter than Lazarus, and the one is as prejudicial to the public health as the other. I have thus given, as well as I could in the time at my command, a brief statement of the views of the Board both as to the law and facts touching the subject-matter inquired of. Trusting that the action of the City Council in relation to these tombs will be as sagacious as that of the Government of 1795, before referred to, I remain, Very truly yours, JAMES M. KEITH. 6 City Document No. 110. Opinion of Hon. John P. Healy. City Solicitor's Office, 2 Pemberton Square, Boston, Oct. 23, 1879. Messrs. G. T. Perkins and J. J. Barry : — Gentlemen, — In reply to your communication I have to say that, in my opinion, on appeal by a tomb-owner from an order of the City Council that his tomb be closed, the 9th and 10th Sections of the 28th Chapter of the General Stat- utes are applicable, and that the trial of the appeal must be in accordance with their provisions. The 10th section pro- vides, that if the jury find that the tomb was not a nuisance, nor injurious to the public health, at the time of the order, the court shall rescind the order, etc. The issue to be tried by the jury must be this question. Yours, very respectfully, J. P. HEALY. Opinion of Hon. Clement Hugh Hill. Boston, Oct. 30, 1879. My dear Sir : — I am perfectly willing to say to you in writing w r hat I told you orally the other day, about my con- struction of the statute of 1877 providing for closing tombs in cities ; although the man who drafts a statute is prover- bially a bad authority as to its meaning, and although I speak with some hesitation when I learn that very distinguished counsel hold a different opinion. A draft of a bill on this subject was submitted to the Judiciary Committee of the House in 1877, which, not being satisfactory, was laid aside, and I drafted and submitted to the committee the present statute, including Section 5, giving an appeal to a jury. In giving this right, our intention, according to the best of my recollection, was not to change the issue, but merely to give a right of appeal to a jury upon the same question as that on which the Board of Health and City Council, as provided in Section 1, had passed, namely, whether the public health required that future in- terments should be forbidden in any tomb or tombs within the city limits ; and the provision of Section 5, that any person aggrieved by the action of the city, under this act, " may appeal therefrom in the manner provided by Sections 9 and 10 of Chapter 28 of the General Statutes," merely Intramural Interments. 7 indicates the manner of appeal, and in no wise changes the issue. Otherwise, it seems to me, any person may com- pletely nullify the action of the City Council by simply ap- pealing from it ; for although the action of the Board of Health and City Council may have been perfectly proper and wise, and the public health require that future inter- ments in any tomb should be forbidden, nevertheless, the owner by appealing may prevent the closing of the tomb, not by showing that the Board of Health and City Council decided erroneously in their adjudication, but by showing that the tomb " was not a nuisance nor injurious to the public health at the time of the order," — a fact perfectly consistent with the (loci s ion appealed from. It is apparent, for example, that tombs under a church may be innocuous in their existing state, and yet the public health may loudly demand that interments in them should cease ; and it was our purpose to provide a means of so doing. This was certainly my intention, and, I believe, the inten- tion of the committee. Whether it is a proper construction of the statute is, I am aware, another question. But construing as we ought Sec- tion 1 of the Statutes of 1877 and Section 10 of Chapter 28 of the General Statutes together, their legal effect, in my judgment, is to add a new issue for a jury for cases arising under this statute, namely, whether the public health re- quires that future interments in any tomb should be forbid- den. Thus construed the two statutes are entirely consistent. Very faithfully yours, C. II. HILL. Opinion of Robert D. Smith, Esq. Boston, Oct. 28, 1879. Wm. H. Whitmore, Esq. : — Dear Sir, — I have considered Chapter 182 of Acts of 1877, and am of the opinion that the appeal provided in Sec- tion 5 is to be tried in the "manner" prescribed in General Statutes, Chapter 28, Section 10, but that the issue to be tried is the one raised by the later act. This issue is whether or not the " public health requires " the prohibition of future inter- ments in the tomb owned by the appellant, or in any cemetery. The clause in the General Statutes, Chapter 28, Section 10, 8 City Document No. 110. provides for the trial of an appeal, and "if the jury find that the tomb, burial-ground, or cemetery, so closed was not a nuisance nor injurious to public health at the time of the order, the Court shall rescind the order," etc. The latter clause, "nor injurious to public health," is not equivalent to the former clause, "not a nuisance;" but if the question under the later act was simply whether the tomb were a nuisance or injurious to public health at the time of passing the order, Section 1 of the Statutes of 1877 would be without force, and could confer no power to prohibit future interments because required by public health. I think that the jury must pass on the question raised by the new law, and not on the question of a technical nuisance, nor whether the tomb is injurious to public health at the time of order ; and of course the new issue is much broader than the former one would be. I presume a jury would not be ready to differ from the views of a Board of Health on what was prejudicial to public health. Respectfully, R. D. SMITH. Extract from General Statutes. The following is the section of General Statutes, Chapter 43, Section 89, referred to in the sixth section of the Act of 1877, in regard to prohibiting future interments in tombs : — " No highway or town-way shall be laid out or constructed in, upon, or through, an enclosure used or appropriated for the burial of the dead, unless authority to that effect is specially granted by law, or the consent of the inhabitants of the town where such enclosure is situated is first ob- tained." Opinion of Hon. John P. Healy. City Solicitor's Office, 2 Pembehton Square, Boston, Oct. 22, 1879. William H. Whitmore, Esq. : — Dear Sir, — I cannot answer with definiteness your question as to the probable amount of costs that would be recovered against the city in case a tomb should be ordered Intramural Interments. 9 to be closed under the authority given in the General Stat- utes, Chap. 28, and the owner should appeal from the order as provided in the same chapter, and the order should be rescinded. The case on the appeal might be finally deter- mined in the Superior Court, or questions of law might be reserved for the Supreme Court, and the amount of costs would be affected by the determination of this fact. The amount would also be affected by the number of witnesses used , and the number of days they should be detained in court. Exclusive of the fees of witnesses, the probability is that the costs would not exceed filty dollars in one case. Each witness would be entitled to one dollar and fifty cents for each day's attendance. I am, very respectfully, Your obedient servant, J. P. HEALY. DATE DUE Q95 1 Q I o I jy i JUN 16 CAYLORO MINTEOINUI A. ^H ■ BOSTON COLLEGE 3 9031 01565731 5 ■ F 73.61 .G7 B75 BOSTON, Bapst Library Boston College Chestnut Hill, Mass. 02167