Mount Moriah Cemetery Ass'n v. Commonwealth ex rel. Boileau

Mr. Justice Gordon delivered the opinion of the court, Beyond the merely technical objection urged against the decree of the court below, and which we regard as properly disposed of in the opinion of his honor Judge Ludlow, there is nothing whatever of merit in the defendants’ case. When Boileau purchased the lot in question there was no restriction on his right of sepulture, and the managers of this com [246] pany had no power afterwards to abridge such right by any unreasonable limitation thereon. The right of interment was refused solely on the ground that the body was that of a colored man. The reason which induced this refusal, as well as the resolution of June 30th 1875, may be found in a petition presented by certain of the lot-owners to the president and board of managers of the cemetery company, which we give in extenso:— “ We, the undersigned owners of lots in Mount Moriah Cemetery, having learned that a person of color has purchased from Mr. William H. Boileau a lot in said cemetery, for the purpose of interment, and demands a requisite transfer of the same from the association, do hereby protest against the same, and request that your approval of such transfer be withheld. We are led to make this request by a knowledge of the prejudice which will be aroused against the cemetery if the precedent of the transfer were established, and the consequent depreciation of value of property in this cemetery that would certainly result from such prejudice.” From this-it would appear that the officers of the defendant company were moved by a fear of loss which might result to the treasury of the corporation. But as Boileau has some rights in the premises, which are not forfeitable to the pecuniary interests of the stockholders, we are bound to turn a deaf ear to this reason, which appears so sound and obvious to these petitioners. It is said, however, that this was but a reasonable exercise of the discretion of the managers, in view of the general prejudice existing against the colored race. In a sound code of ethics this prejudice never had a respectable standing, for it was but the child of an abnormal servile system that was entitled to no man’s respect outside of the country and laws which maintained it. But at this time, when this prejduice is under the ban of recent constitutional and legal provisionsex, pressly designed for its suppression and extinction, it is scarcely to be expected that we can be induced to endorse its respectability- or to encourage it to linger longer around the halls of justice. Were we to sustain the case of the defendant, we should be carried far beyond the limits of The Railroad v. Miles, 5 P. F. Smith 209. That case did no more than sustain the power of common carriers to make and enforce such rules and regulations as they might deem just and reasonable with reference to the conveyance of passengers in their own vehicles; whilst we, in the suit in hand, are required, in view of this alleged prejudice, to forfeit the absolute vested rights of a citizen which he holds and claims to exercise under and by virtue of the deed, duly and solemnly executed, of this very defendant corporation. Now, as The Railroad v. Miles, though seemingly just and reasonable, was not in consonance with the will of the people as [247] manifested by the legislative Act of March 22d 1867, it is not apparent — should we reverse the judgment of the court below— that we would have even the support of such a broken reed as popular prejudice. Judgment affirmed.