
    Zion’s German Reformed Congregation’s Appeal.
    An appeal does not lie from a decree of the court of quarter sessions, dismissing proceedings under the Act of May 12,1887, for the removal of the dead from burying grounds.
    
    The court below held that the construction of the word “ may ” in the Act was such as to vest a discretion in the court, that it was not equivalent to “ shall,” and that, under the facts of the case, the prayer of the petitioners should be refused.
    Peb. 5, 1889.
    Appeal, No. 412, Jan. T. 1888, from a decree of Q. S. Lehigh Co., dismissing the petition of the trustees of Zion’s German Deformed Congregation praying for an order authorizing the removal of the dead from the old Allentown cemetery. Williams and McCollum, JJ., absent.
    The facts appear in the following opinion of the court below, by Albright, P. J.:
    “ The object of this proceeding is to procure a decree authorizing and requiring the removal of the remains of the dead from the old Allentown cemetery. Said cemetery occupies half a block, or square, in the city of Allentown, having for its western boundary Tenth street, with Chew and Turner streets for its southern and northern boundaries, respectively; on the eastern side a public alley separates it from the new Allentown cemetery. The title to the southern half was conveyed in 1813 by Mary Livingstone to George Graeff, trustee of tbe Evangelical Reformed Congregation of the borough of Northampton and John Frederick Ruhe, trustee of the German Evangelical Lutheran Congregation of the same place, and their successors, as trustees, in trust for the only proper use, benefit and behoof of said two Congregations forever “ for the purpose of burying their dead therein.” This ground was an old burial place at the time said deed was given. The northern half was conveyed in 1829 by "Walter C. Livingstone to said Lutheran Congregation and to Peter Newhard, trustee of said Reformed Congregation “for the sole use of a burial place for said two Congregations.”
    “ The petitioners for the sale are the official representatives of said two Congregations (now the Zion’s German Reformed Congregation of Allentown and the St. Paul’s German Evangelical Lutheran Congregation of Allentown), and certain others who are citizens of Allentown. There are also remonstrances by citizens of Allentown, protesting against the action petitioned for.
    
      “ This proceeding was instituted under the Act of May 12, 1887, P. L. 96. It provides that, whenever, in a city or borough, a burial ground has ceased to be used for. interments or has become so neglected as, in the opinion of the court, to become a public nuisance, or that the remains of bodies interred in any such neglected or disused cemetery interfere with and hinder the improvements, extensions and general progressive interests of any city or borough, the proper court may authorize and direct the removal of the remains of the dead from such burial grounds; that such removal shall be at the expense of the parties applying for it and shall be to such other burial ground as they may select for said purpose, or, if desired by the relatives or friends of the dead, to some properly regulated -burial ground in the immediate vicinity; that all bodies, when so removed, shall he placed in separate caskets and graves, and the headstones, monuments or other marks placed by the remains of said bodies shall be again placed as near as can be in the same relative position as before removal.
    “ The petition states that about nine hundred bodies are buried in said grounds. There are good reasons to believe that the number is very much greater. For generations, it was almost the sole place of burial of the dead of Allentown and the adjacent parts of the neighboring townships. That the resting place of the dead is to be regarded sacred, is the common sentiment of humanity. Every member of this community is impressed by it; none more so, probably, than these petitioners. The voiceless, defenceless dead need no special defender — all are their defenders. Men equally impressed with the sanctity of a place of burial may honestly differ about the propriety or necessity of removing the dead from a particular cemetery. In the change of conditions brought about by the building of towns and the making of other improvements, cases arise where a proper regard for the living and the dead require the abandonment of cemeteries and the removal of the remains of the dead.
    “ When it is proposed to remove all the bodies in a given cernetery, various considerations enter into the question. Are there many or few bodies; what is the probable state of the remains, the length of time some or all have been interred being considered; what kind of place are they to be taken to; under all the circumstances, will or can it be done with that decency and reverent care which ought to be observed. Upon some of these points the evidence before the court is meagre and somewhat unsatisfactory. But the main question is, does the interest of the public require the removal. The inquiry in this reference is not whether certain individuals or classes of people will be favored or benefited, but whether a regard for the good of the community makes the removal necessary.
    
      “ Whether a profit can be made by removing the bodies and selling the ground cannot enter into the inquiry. There is no law, and it is to be hoped that there never will be one, permitting the dead to be exhumed and carried from one burying ground to another whenever a cheaper place to deposit the remains can be found. It is needless to carry argument on this point further. Said congregations do not own the ground; they simply have the privilege to bury their dead therein.
    
      “ That interments are no longer made in the cemetery is in itself no reason for removing the dead. God’s acre is sacred, not because of the living, who may or may not propose to be buried there, but. because of the ashes of the departed already there.
    
      “ Has the allegation that this cemetery is a public nuisance been proved? A nuisance is anything that works hurt, inconvenience or damage. A public or common nuisance is such an inconvenience or troublesome offence as annoys the whole community in general and not merely some particular person. Does this cemetery so affect the public ? The fence and wall enclosing it require repair or reconstruction, weeds ought to be kept down and unseemly use of part of the ground has been made. For this, the proper remedy would be the exercise of proper care, not the abandonment of the cemetery. It is not likely that, under the evidence given by the petitioners, the persons whose duty it is to keep it in proper order could be convicted and punished for causing and maintaining a public nuisance, and compelled to abate it. Upon this evidence, no jury would determine it to be a public nuisance. There are many blocks and large areas unimproved in the built up parts of the town. Some of them are less pleasing to the eye than this place; yet no one would think of proceeding against the owners as maintainers of public nuisances.
    
      “ It is not alleged that noxious odors arise from the bodies buried in the cemetery, or that they pollute any water supply of the public. This cemetery does not injure or menace the public health; if it did, it would be a common nuisance which ought to be abated. It is not a nuisance simply because the dead are buried there and dwellings are in its vicinity. If it were, then also would the new Allentown and Union Cemeteries be nuisances, which no one alleges. This was a burial place before any one now owning ground in its vicinity was such owner.
    “ How it hinders the improvement or extension of the city has not, and probably cannot, be specified. It blocks no thoroughfare, as do neighboring cemeteries about which there is no complaint. The ground is not needed for any public purpose. There is no scarcity of building sites. The city is not hemmed in by steep mountains or other barriers. There is room for it to grow as large as Philadelphia, New York or London. Should it ever become a very large city, like those great cities, it may have in its midst old burial grounds offending no one, and serving as silent monitors of the busy throng. It has not been proved that the removal ought to be decreed. Under the evidence the prayer of the petitioners must be refused.
    “ March 5th, 1888, the petition is dismissed.”
    “ By the Court : It is found as a fact that interments in said ■cemetery had not been made for five or six years immediately preceding the filing of the petition (the testimony was to that effect). The court construe the word ‘ may ’ used in the 1st section of said Act of Assembly to vest discretion in the court — it is not to be read ‘shall.’
    “March 5th, 1888. The foregoing is now placed on record as . part of the opinion, at the request of petitioners’ counsel.”
    
      The assignments of error specified the action of the court, 1, in not granting the prayer of the petitioners; 2, in not making an order, authorizing and directing the removal of the remains of the dead from said burial grounds, described in the petition filed in this case, the court having found as a fact that the burial grounds had ceased to be used for interments; 3, in construing the word “may,” used in § 1 of the Act of May 12, 1887, to vest discretion in the court; 4, in not construing the word “may” to mean “shall” in the Act of May 12, 1887; 5, in not finding that it was mandatory on the court to direct the removal of the dead from said burial grounds, the congregations having decided, by a majority of the votes cast, that the remains of the dead on said burial gx-ounds be removed, and the court having found, as a fact, that the burial grounds had ceased to be used for intex-ments; 6, all the witnesses called having testified that the x-emains of bodies intexTed in said neglected and disused burial grounds intex-fered with and hindered the improvements, extensions and general px-ogressive interests of the city of Allentown, and that the welfare of the city was thex’eby injured to its detriment and the public good, the court exTed in not finding the fact as testified to; 7, if what is stated in the sixth assignment of ex-ror is found as a fact, the congregations having decided that the remains of the dead on said burial gx’ounds be removed, it is mandatory on the court to direct the removal of the dead from said bux-ial grounds; 8, the court erred in finding that the burial ground in its present condition was not a nxxisance.
    
      At the argument before the supreme court the appellee moved to' quash the appeal.
    
      Morris L. Kauffman, with him Edward H. Reninger, for the motion to quash.
    No appeal lies in this case. By § 6 of the Act of March 11, 1809, it is enacted that “ appeals and writs of error may be had and may issue to and from the supreme court of the proper district, from and to the courts of the several counties.” At the time of making this law, there were some courts in the several counties, namely, the orphans’ court and register’s court, from which an appeal lay to the supreme court; and there were other courts of the several counties, namely, the court of common pleas and quarter sessions, to which writs of error were issued by the supreme court. The natural construction, therefore, of the clause in question is, that causes may be removed from the courts of the several counties, to the supreme court, by appeal or writ of error, according to the usual Course of proceeding in the respective courts. Lessee of McClemmons v. Graham, 3 Binney, 88.
    The 6th section of the Act of March 11, 1809, does not give the option to a party of entering an appeal or taking out a writ of error, as the error below is on the record or dehors the record, but the law means that causes shall be removed according to the course of proceedings in the .respective courts, an appeal from the orphans’ and registers’ court and a writ of error, to the common pleas and quarter sessions. Grubb v. Grubb, 3 W. N. C. 180. The ordinary means of reviewing the judgment of a subordinate court in a civil case, are by writ of error or certiorari; the appeal and bill of review are properly equitable remedies, and lie only in such other cases in which such remedy is specially provided for by statute. 1 T. & H. Pr., page 479, § 823. A certiorari lies where proceedings are not according to the course of the common law, or where the court is not one of record. Whenever a new jurisdiction is created by statute and the court or judge exercising it proceeds in a summary method or in a new course different from the common law, a certiorari lies. Ruhlman et al. v. Com., 5 Binney, 24; Hummel v. Bishoff, 9 Watts, 431; Com. v. Beaumont, 4 Rawle, 366; Appeal of Commissioners of Northampton Co., 57 Pa. 454. It is said a certiorari lies in all judicial proceedings where a writ of error does not lie. Phila. & Trenton R. R., 4 Wh. 41. But not to rejudge the merits of the case. Chase v. Miller, 41 Pa. 403; Sheppard’s Case, 65 Pa. 20.
    The proceedings in this case were instituted under the 1st section of the Act of Assembly, entitled “An Act supplementary to an act relative to burial grounds,” etc., approved May 12, 1887. There is no appeal authorized either in said Act or in either the Acts of May 19, 1874, or May 13, 1876, to which the said Act is a supplement. These acts create a new jurisdiction in which the court proceeds in a summary manner, in a new course, different from the common law, and therefore the remedy of the appellants would have been by certiorari and not by appeal.
    
      The court has found as a fact that interments in said cemetery had not been made for five or six years immediately preceding the filing of the petition, but the court does not find that the cemeteiy <£ has ceased to be used for interments.”
    , A construction of “ may ” in the Act to mean “ must ” would make it compulsory upon tlie court to decree the removal of the dead from any cemetery, whenever speculators could induce a sufficient number of interested or disinterested citizens to sign a petition, and pi’ove the fact that such cemetery “ has ceased to be used for interments.”
    
      Marcus C. L. Kline, not heard on the merits, for appellants.
    The right of the legislature to authorize the removal of the remains of the dead fi’om cemeteries is well settled. Kincaid’s Ap., 66 Pa. 411; Craig v. Presbyterian Church, 88 Pa. 42.
    The Act of 1887 refers the question of discretion, whether or not the dead shall be removed from the burial grounds, to the congx-egations. They have decided, by the vote taken, that the dead shall be removed. The court found as a fact that the ground ceased to be used for intei’ments. It thus became incumbent on the court to direct the removal of the dead from said burial ground, subject to the conditions and regulations contained in § 2 of the Act of May 12,1887.
    The word “ may ” means ££ must ” or “ shall ” in cases where the public interests and rights are concerned, or where the public or third persons have a claim, de jure, that the power should be exercised, or where something is directed to be done for the sake of justice or the public good. 2 Bouvier, p. 163; 2 Rapalje and Lawrence Law Dict., p. 806; Shaeffer v. Jack, 14 S. & R. 430; Com. v. Gable, 7 S. & R. 426-430; Malcolm v. Rogers, 5 Cowen, 188; 15 Am. Dec. 15, page 464, and n. page 467; Fowler v. Perkins, 77 Ill. 271; Supervisors v. U. S., 4 Wall. 446; Kane v. Footh, 70 Ill. 587; 9 How. 248 and 249; 22 How. 422; 5 Wall. 705; 45 Cal. 696; 44 Conn. 534; 68 Ill. 144; 70 Ill. 587; 51 Barb. 270; 11 Wend, 159; 9 East, 394; 2 Salk. 609; 5 Vern. 153, n.; 3 Atk. Ch.
    The purpose of this charity has failed. The design of the donors was to provide a place of burial, to the membei’s of said two congregations, not for one or two generations, but for future generations.
    For the benefit and good of the entire public, the dead in this burial ground should be exhumed and removed to a more suitable place to be provided for by said coiigregations. See opinion of Chief Justice Beasly in the Mayor & Common Council of the City of Newark v. Stockton, Attorney General, et al.
    Feb. 5, 1889.
   Per Curiam,

Appeal quashed.  