Gordon v. Commissioners of Montgomery County

• Decision Date: 15 February 1933
• Docket Number: 110.
• Citation: 164 A. 676,164 Md. 210
• Parties: GORDON v. COMMISSIONERS OF MONTGOMERY COUNTY.
• Court: Maryland Court of Appeals

164 A. 676

164 Md. 210

GORDON v. COMMISSIONERS OF MONTGOMERY COUNTY.

No. 110.

Court of Appeals of Maryland

February 15, 1933

Appeal from Circuit Court, Montgomery County; Robert B. Peter Judge.

Suit by Fulton R. Gordon against the Commissioners of Montgomery County. From an adverse decree, plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

Ogle Marbury, of Baltimore (John F. Lillard, of Hyattsville, on the brief), for appellant.

Joseph C. Cissel, of Rockville (Whiteford & Cissel, of Rockville, on the brief), for appellee.

URNER J.

One of the purposes of chapter 702 of the Acts of 1927 was to authorize and empower the county commissioners of Montgomery county to license and regulate graveyards within the limits of the county, and, in order to safeguard the public health safety, and welfare, to pass rules, regulations, or ordinances for the purpose of executing powers granted by the act, provided that proper standards for the exercise of the discretion conferred by its terms should be contained in such rules, regulations, or ordinances, and that they should operate uniformly. It was declared by the act to be unlawful for any person or corporation to establish or conduct such an enterprise without first obtaining from the county commissioners a license therefor, if required by any rule, regulation, or ordinance which the act authorized. In pursuance of that statute the county commissioners of Montgomery county passed an ordinance which provided that no person or corporation should establish or operate any cemetery, graveyard, or burial ground, within the limits of the county, without first obtaining a permit from the board of county commissioners, that no such place of interment should be so located as to permit drainage of water into any reservoir, well, spring, or stream used for drinking purposes by human beings, nor so as to endanger the safety and health of residents in the community in which it should be conducted, and that no cemetery, graveyard, or burial ground should be established within 500 yards of any school, hospital, sanitarium, orphan asylum or in any part of the county where there were then residing more than one hundred persons within a radius of 500 yards of the outside limits of the burial reservation, and that whenever, in the opinion of the board of county commissioners, the location of such an area for the burial of the dead would endanger the health, welfare, or safety of the public in its vicinity, the board should refuse a permit for its establishment in such a neighborhood.

The object of this injunction suit is to prevent the county commissioners from interfering with the plaintiff's effort to open and operate a cemetery in Montgomery county without applying for and obtaining a permit in accordance with the provisions of the statute and ordinance. It is the plaintiff's theory that those enactments are invalid, and that he is therefore justified in disregarding their requirements. The contention is that the county commissioners could not be constitutionally invested by the Legislature with the power which the ordinance proposed to exercise.

The section of the Maryland Constitution relating to county commissioners includes the provision that "their compensation, powers and duties shall be such as now or may be hereafter prescribed by law." Const. art. 7, § 1, as amended in 1891.

This court has said: "A county is one of the public territorial divisions of the State, created and organized for public political purposes, connected with the administration of the State Government, and especially charged with the superintendence and administration of the local affairs of the community; and being in its nature and object a municipal organization, the Legislature may, unless restrained by the Constitution, or some one or more of those fundamental maxims of right and justice with respect to which all governments and society are supposed to be organized, exercise control over the county agencies, and require such public duties and functions to be performed by them, as fall within the general scope and objects of the municipal organization." Talbot County Commissioners v. County Commissioners of Queen Anne's County, 50 Md. 245, 259.

The regulation of cemeteries in the interest of the public health is within the police power of the state. The exercise of that power may be validly delegated by the Legislature to a municipal corporation or other qualified agency of local government. Rossberg v. State, 111 Md. 394, 74 A 581, 134...