The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-05-22
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0uutu SOhAN
: !" In INC order that the question OF jurisdic-
tion might he properly before the Board,
Mir. ,Jucob moved declaration that the
Board have no Jurisdiction in this case,
Mr.. PAUL said ifit DO aScertained by
tho legal tribunals that the creation Of
the proposed cemetery would Prove
prejudtcial to the health Of any citizens
of the county and the fact be brought
to the knowledge of the Board, they
might perhaps intefpose In the exercise
OF their ministefialor executive power
To abate II ~ nuisance Whenever
the fact SHOULD be iudiclGlly ascertained
that this graveyard Is n nuisance, dele
terio1s 10 the health of any citizens,
this Board might inIerpose fur its re-
mOVal or abatement, but not before.
But the provision quoted by Mr.. Peck,
under which 1t was now proposed the
,BoArd should act, gave the Board no
judicial power to inquire where any
cemetery association was select
Ing It's ground, though when ii
had been selected the Board pos
sessed power TO regulate the burials
III that cemetery, or elsewhere, for the
preservation of the public health and
decency, such as that bodies should not
be buried without first being put in cOf-
fins, or that the graves shall be OF a
certain depth. This WAS the nature of
the power to make regulations" with
which they were invested. The Board
wns invested with no judicial power.
lie knew of nOlaw in this State that
controlled the selection of places of bu-
ria. The dead might be buried wherev-
er Inc HtfectiOnate regard of surviving
friends dictated. This Board had no
right to go into the inquiry whether
the property OtsurrOundiuS neighbors
may be injured or deteriOrated 81, 600,
or any other amount. The only inqui-
ry, under any possible circumstances,
wus, can it be- Injurious to the public
health. That inquiry did not arise on
the motion here.
MIR. Peek said 1t was true the provis-
ion of the law which he had read was
found III an act regulating CemeteryAs-
sOciatiOnS; but if The petitioners should
so into court and ask for an injunction
he expected the counsel on the other
side would say: "Why didn't you go to
the supervisors; they have the power;
this court has no Jurisdiction to inter.
tere in any such thing; you cannot call
it d nuisance because it is II thing absO-
lutely necessary, and every man has a
right to bury where he pleases." Un-
d0ubtedly the Legislature intended to
give the Boards of Supervisors power
over burial grounds and burials. He
expected to prove that this proposed
cemetery would be Injurious to the
health ofthOSe persons who live around
it, tina it would ruin the water on that
little peninsula in such way that peo-
pie dare not and would not drink it;
and therefore 1t would be an offence so
far as they were concerned, against the
public health. He expected to
prove by persons skilled in such
matters, that it would be detri-
mental to health to drink water
from dead bodies. They didn't know
whether the judge would grant an in
junction or no:; and in three months
the grave yard might be filled. He
was told they designed putting in there
large number, 100 perhaps, from an
other grave yard. Ii the Supervisors
decided they had no power to act these
They might not be able to obtain an in
junction. He did not know that bill
in chancery would lie for u thing like
this. 4 court would grant an injunc-
ton against what might be an irrepar.
able injury like this would be, but only
on the bringing of u suit at law. Then
the court would interfere until the suit
could be decided. But it would only
be in aid of n law suit. The party
must bring his suit and show his right
and the court of equity would restrain
until the right could be settled. But in
a case like this what would they do.
They would ask the court to restrain
every one of these lot holder in the
burying ground from burying there.
For how long? The question would
have to be settled before they would
have right to bury or not bury.
He doubted whether court Of equity
would take Jurisdiction of that which
is question of law, for an injury that
may happen hereafter. No injury had
been done to these wells as vet, so far
as known, but injury may be done in
future. He didn't know that there was
any law by which a court Of equity
could interfere to settle the right of
these parties to bury there. They could
eDjoin them for season under rights
TO he settled by lawsuit but what
kind Of lawsuit would they bring?
He thought the law intended to give
this body power over things of that
sort, where the law was so exceedingly
doubtful that they would not know how
to bring suit, or what relief to ask for.
I'VE cannotsue them at law" he said;
land five have no right to sue them at
law, how can we enjoln them from do
ing this thing until that law question is
settled? There might be remedy after
while, when it became a nuisance,
and then the court could interfere
TO prevent the nuisance from being car
ried on until the Court could inquire
whether it was nuisance; but he didn't
see how court OF equity could at pres
ent interfere in behalf OF these petition
ers. This body could because the stat
ute reud gave them full powers over
this thing. 1t was not a question
wheher it would be a convenient juris-
dictiou, but whether they had juris
diction. II they had power to inter-
Eere they ought to. If they decided
they had no power to interfere there
was IN end of it.
Mr.. Lamb said If the question
of jurisdiction was undoubted there
could still be no doubt as to what
this Board ought TO do. Notwith-
standing the remarks of Mr.. Peck,
complete remedy in the Court. But
the law that had been referred to
did not confer the authority on this
Board. 1t only applied to Incorporated
Cemetery Associations, and did not
therefore apply to the present
case at all, for this was not
an incorporated company. It did
even in the case of incorporated COM
panies where burials should be made,
but simply to make regulations how
they should be made.
Mr.. Peck said the subject of this mat
ter was the burial OF the dead, and tho
supervisors by the act referred to have
direct jurisdiction over the burial of the
dead in cemeteries or elsewhere. The
authority is to overlook and make such
rules and regulations as the public
health and deOency may require.
g.. 7 \ III ~
the 36th section Of the WITH article of
the Constitution provided that no law
shall embrace more than one object
which shall be expressed in the title;
that the title of the act quoted was "a1i
act for the incorporation of cemetery
association" to which alone the provf-
sions OF the act would apply and that
this was not case Of an incorporated
association. ar-