
    Carter, Admx., etc., v. City of Zanesville et al.
    
      Penalty for having unlawful possession of corpse — Section $764, Revised Statutes, is not directed against cemetery associations— Does not relate to decomposed persons.
    
    Section 3764, Revised Statutes, prescribing a penalty against persons, etc., having the unlawful possession of the body of a deceased person, is not directed against cemetery associations or their trustees ; nor does it relate to the remains of persons long buried and decomposed.
    (Decided November 1, 1898.)
    Error to the Circuit Court of Muskingum county.
    The plaintiff in error filed in the court of common pleas of Muskingum county the following amended petition:
    ‘ ‘The State of Ohio, Muskingum county, court of common pleas, Sarah S. Carter, as administratrix, etc., v. The City of Zanesville, Wm. Morrison, George Kerner, John Nepp, C. Stolzenbach and David Hahn, defendants. Amended petition.
    “The plaintiff, for her amended petition, says, that she is the administratrix of Alice T. Carter, deceased, duly appointed and qualified by the probate court of said county.
    “That one Jehu W. Carter, late of said county, deceased, was the father of said Alice T. Carter and he died on May 27, 1880, intestate, leaving said Sarah S. Carter his widow, and the following children, Charles R. Carter, James W. Carter, Mary I. Carter and Edward S. Carter, who still survive and together are the sole next of kin or said Jehu W. Carter and said Alice T. Carter, who died intestate and unmarried on July 16, 1852. That about said last named date, said Jehu W. Carter purchased from said city of Zanesville, for a valuable consideration then paid, lot No. nine (9) in the twelfth (12) tier of the east center square, in what was then called the Zanesville cemetery, which is the same as is now called Greenwood ■cernetery. Said grant of said lot was to Jehu W. Carter, his heirs, and assigns, to be held and used .as a burial place.
    “On the eighteenth of July, 1852, the body of said Alice T. Carter was buried in said lot No. nine (9) and remained there till about the first of June, 1890, when it was, by the said city of Zanesville ,and said Stolzenbach and said Hahn and their superintendent, agents and employees, and who (with Thos. Lindsay, who is now deceased), composed the then board of trustees of said cemetery and represented said city in the management of the same, none of which acts, were within their statutory powers as such trustees, unlawfully and forcibly and fraudulently taken up and taken into their possession and by their carelessness and negligence, commingled with many other remains, so as to make identification impossible, and carted off to some unknown spot in said cemetery and is now still held by defendants, said city and said Morrison, Kerner and Nepp, who are now the trustees of said cemetery, and represent said city in its management. Said unlawful having of the possession of said body and remains and the said disinterring and removal thereof and all of said acts, were done when defendants had the means of identifying- said remains and without any notice whatever to the said owners of said lot and next of kin of said descendants (although they or some of them lived in. said city all the time), and against their wish.
    “That the plaintiff and next of kin never found out said unlawful disinterring, taking and holding by defendants, of said body or remains, until about June 12, 1895. Said Morrison, Kerner and Nepp are, and then were the board of trustees of said cemetery, and plaintiff and said next of kin, have several times, since said June 12th, requested and demanded said body or remains, and they have failed and refused to surrender the same, or locate same.
    “And plaintiff further says, it was the duty of defendants to afford repose and security to said body or remains, and they held said cemetery upon that, among other sacred trusts, for the benefit and solace of the lot owners, their heirs and next of kin, and the next of kin of those buried therein.
    “Wherefore the plaintiff says a cause of action has accrued in her behalf against the said defendants, in the sum of five thousand dollars, for the benefit of the said next of kin of said Alice T. Carter, for which sum she asks for judgment, and also for all other relief to which she may be entitled.”
    The court of common pleas sustained a general demurrer to this amended petition, and the plaintiff, not desiring to plead further, a final judgment was rendered against her, which on error was affirmed by the circuit court. The cause was thereupon brought to this court for review.
    
      King & Browning, for plaintiff in error.
    The misleading headline, probably taken from the headline of section 3763 by some clerk or printer, “Penalty for having unlawful possession of corpse,: ’ is well disposed of in the ease of Huntington v. Attrill, 146 U. S., 657.
    But it has been claimed, that 3764 is supplemental to 3763, or should be construed in connection with 3763.
    If it (3764) was aimed exclusively at colleges, and professors of anatomy, like 3763, why not say so and not go on and name “Any person, association or company? Colleges are usually corporations. The defendant, the city, is a municipal corporation. All corporations are, at least, artificial persons, but the word “persons” includes both natural and artificial persons, and hence is more comprehensive. And that more comprehensive word is the one used to begin section 3764 with; and it is significantly followed by the words “association or company,” andjneither of these are artificial persons.
    Is not the digging up of a dead body, by any person for any improper purpose, the mischief aimed at; and by well recognized rules of construction (Broom’s Legal Maxims, p. 570) included in the remedy afforded by 3764? 42 Ohio St., 543.
    W e claim that 3764, is a remedial statute and as such, to be construed liberally, if, indeed, it is not too plain and comprehensive, to permit a court, to go outside of it.
    If 3764 only relates to the “bodies” or “corpses” named, in 3763 then we have the monstrosity of having a statute giving substantial damages for unlawfully taking the bodies of tramps, paupers and convicts, but giving no damages for unlawfully taking bodies of those who are not tramps,’ paupers and convicts. 39 Ohio St., 661.
    
      Manifestly it would not be as painful shock to-the next of kin of a decedent for defendants to-dig- up and cart off a body which has been buried forty years, as to dig up and cart off a body which had been buried but one day. Common sense-would say, that the latter was tern times worse than the former, and this act fixes the highest recovery, ten times more, in dollars, than the lowest. A. & E. E. of law, p. 298.
    Some stress is laid upon the use of the word “remains”- in these petitions as thoug-h it was-synonymous with “skeleton,” not at all. Webster defines “remains” tobe “a dead bodjq a corpse.” Bouvier, on page 368, defines “corpse” to be “the dead body of a human being.”
    Recurring again to the liability of the city. If section 3764 gives an action against it in terms, then the common law rules, of respondant superior-do not require consideration.
    The petitions say, the city, by its trustees, etc., not only failed to discharge these ministerial duties of protecting the repose of these bodies, but wrongfully themselves dug- up, and took, and hold the possession of the body or remains of Alice Carter and Wm. S. Carter.
    It is both misfeasance and malfeasance, and therefore clearly within the rule laid down by Dillon on Municipal Corporations, section 764. 41 Ohio St., 148.
    As to the statutes of limitations, we insist that the statute does not begin to run, so long as the defendants are having- the unlawful possession of the body. The wrong- complained of and the wrong section 3764 provides a remedy for, is the taking and having, the unlawful possession. The petitions charge the present and continuing having-of these bodies. 40 Ohio St., 27; 46 Ohio St., 319; 50 Ohio St., 1.
    Section 7034 makes it a crime to open a grave “without lawful authority.” Who under our laws and civilization, would have this lawful authority. Manifestly the next of kin and the city and trustees, both consenting, would be lawful authority. But could the next of kin consent without notice? The petitions charge, it was done without notice, although the next of kin lived in the city all the time, also, that the defendants had the means of identifying the bodies. 31 Ohio St., 338; 35 Ohio St., 8.
    
      C. A. Maxwell; Durban & McDermott and Charles O. Griffith, for defendants in error.
    This is an action brought to recover upon the provisions of section 3764 of the Revised Statutes. There was no right of action of this kind at common law. It was not a right of the intestate that was invaded and it was not a thing that could at common law become assets- in the hands of the administrator and it is agreed that the liability claimed depends entirely upon the statute.
    But it is said that the wrong done was not discovered until about two months before the filing of the petition and that until that discovery the statute did not begin to run.
    That ignorance by the plaintiff or by parties interested of the existence of a cause of action will not prevent the bar unless the statute itself expressly saves the cause, is too well settled to admit of discussion. Townsend v. Eichelberger, 51 Ohio St., 213; 4 Ohio, 31; 37 Ohio St., 583; 6 Ohio St., 276; 10 Ohio, 469; 48 Ohio St., 194. And this was even true in the ease of a civil action for money-stolen. Howk v. Minnick, 19 Ohio St., 462. And section 4983 does not provide that the cause of action shall not accrue until after the discovery of the wrong.
    The effect of conduct may be felt forever and the next of kin may feel indignation resulting from the wrong yet for many years; but since that day in June, 1890, defendants have done no new wrong and have continued no situation it was in their power to change. They may continue wrongdoers justly chargeable with the consequences of their offense, but it is not now in their power to remove the-wrong. Williams v. Pomeroy Coal Co., 37 Ohio St., 583.
    In the Amer, & Eng. Ency. of Law, vol. 18, page 270, a penal statute is defined as “a statute imposing a penalty for doing that which the statute prohibits, or for omitting to do that which the statute requires.” Of course, this prohibition or requirement is sufficiently expressed by the enactment of the penalty for the act or omission. Hadsell v. Hadsell, 7 C. C., 196, 3 C. D., 725; Smiley v. Bartlett, 6 C. C. 234, 3 C. D., 427; Cooper v. Rowley, 29 Ohio St., 547; Lawler v. Burt, 7 Ohio St., 340, Hollenback v. Getz, 28 Atl., 519; Rd. Co. v. Tanner, 36 Pac., 541; Stoddard v. Malone, 22 S. W., 469; Beadle v. Rd., 29 Pac., 696; Merchants Bank v. Bliss, 35 N. Y., 412; First Nat. Bank v. Price, 33 Md., 487; Halsey v. McLean, 12 Allen, 438; Derrickson v. Smith, 27 New Jersey Law, 166. Also numerous cases cited in note in 14 Amer. State Report, 352. C. S. & C. R. R. Company v. Cook, 37 Ohio St., 265. The second question arising is, whether or not, waiving the statute of limitations, facts are charged showing the liability of either of the defendants under' section 3764. We contend that the possession of the dead body, here charged, is not the unlawful possession contemplated by the statute.
    If the court shall agree with what we have hereinbefore claimed, there is then no cause of action pleaded against either of the defendants. There is, however, additional reason for claiming that Morrison, Nepp and Kerner, the members of the board of cemetery trustees, at the time of the beginning of this action, are not liable. It should be borne in mind that they are sued as individuals, and not as a board, or in their official capacity.
    It is suggested that the policy of the law is to make them liable, so that the party wronged or aggrieved can always find some one to respond to his demands. There might be some plausibility in this claim if the present board was sued as a board, but not when they are sued as individuals.
    Is the city liable for alleged unlawful acts? The rule is well settled that a city may be liable for the negligent doing of an unauthorized ministerial act by its agents, but is never liable for the doing of , an act that it is unauthorized by law to do, or the doing of which is made a crime. Smith v. Rochester, 76 N. Y., 507; Goddard v. Harpell, 24 Atlantic, 958; Tiedeman on Municipal Corporations, sections 92 and 338; Thomas v. Findlay, U. S. Circuit Court; Rowland v. City of Gallatin, 42 Amer. Rep., 395.
    A city is not within the grasp of section 3764, notwithstanding the term person may in some in- ' stances include a municipal corporation, because the wrong contemplated by the statute cannot be perpetrated by the city in such a way as to make it liable under the statute, whatever its common law liability may be.
   By the Court:

The plaintiff found her right of recovery on section 3764, Revised Statutes, which reads as follows:

“Section 3764. Any person, association or company, having unlawful possession of the body of any deceased person shall be jointly and severally liable with any and all other persons, associations and companies, that had or have had unlawful possession of such corpse in any sum not less than five hundred dollars and not more than five thousand dollars, to be recovered at the suit of the personal representative of the deceased in any court of competent jurisdiction, for the benefit of the next of kin of deceased.”

This statute is directed against such persons, et cetera, as have unlawful possession of a “body” of a deceased person. The section further refers to the “body” as such “corpse. ” The terms “body” and “corpse” found in this statute do not include the remains of persons long buried and decomposed. Nor is the penalty imposed by it directed against cemetery associations (or their trustees) where such remains may be quietly reposing'. On the contrary the object of the statute is to secure to the bodies of dead interment and that secure repose which natural affection and a decent respect for the remains of a human being demand.

Judgment affi/rmed.  