Evening star. [volume] (Washington, D.C.) 1854-1972, 1930-08-23
CEMETERY LAW
| RULED INVALID
Prince Georges County Court
Says 1t Attempts to Vest
Arbitrary Power.
By . stan Correspondent Of The star.
HfnrNuxa ARAnr nnp0 Ma Aiiortiaf

By stan Correspondent Of The star.
UPPER MARLBORO, Md, August %.
Holding the new cemetery law Of
Prince Georges County, as enacted by
the last session Of the Legislature at
tempts to vest the county commissioners
with arbitrary power, and is accordingly
unconstitutional, Circuit Court Judge
Joseph G. Mattingly today filed an
opinion indicating he viii dismiss the
suit recently brought by the commits
terry Co.. Inc, from maintaining and
operating Washington Memorial Park, |"
proposed cemetery In Berwyn district.
Charge Of Commissioner.
The commissioners alleged in their
bill OF complaint that the cemetery
company had failed to obtain q per-
NIT for the establishment of their ceme-
terry and hence are proceeding In viola
ton OF the amended law. The statute
referred to, chapter 1877, act of 1929,
not only requires the Issuance of q
permit before q cemetery can be started,
but provides that any one violating
any provision Of the section shall be
guilty OF mtsdemeanor, and also at
tempts to give the commissioners 'all
powers by way Of injunction" to pre-
vent the establishment or maintenance
Of q cemetery without the written per-
mission Of the board Of commissioners
The court points out that the COM
missioners do not claim in their bill that
the establishment Of the Northwest
Cemetery is or will be public nuisance
and concludes lit would seem that,
although the threatened act of operating
the cemetery Is In violation Of the
statute, 1t may not be enjoined either
by the commissioners or by O private
person unless 1t amounts to o nuisance"
The opinion cites o line Of cases from
comparatively early days in which the
Maryland Court Of Appeals has held
that the Legislature cannot prohibit
use OF lands which works no hurt or
annoyance TO the neighhors
Declared Unconstitutional.
The cases cited make it clear, the
court says, that the act of 1929. chap
ter 1877, sis in conflict with the Consti-
tuition In that II attempts to give to the
county commissioners the absolute right
to decide, without standard for their
guidance, or evidence Of conditions, or
knowledge Of local needs, that one per.
son may be permitted to lay out q
cemetery, while his neighhor, under
identical circumstances, may not engage
In similar enterprise.
"No one contends for o moment that
the Board Of County Commissioners, as
now constituted, would do anything
arbitrary or oppressive, or that any
act OF theirs would have q faint Of UNI
fairness, but the test of the statute lies
not In present likelihood, but In what
can be done Under Its provisions" the
opinion states. "As It is now written,
1t opens the door for the practice of
favoritism, for the venting Of malice
and for the traffic In privileges whose
notivating causes might And their
foundation In i1iercenry reasons"
Commenting upon the way the case
was presented, the opinions says, "the
briefs by both the plaintiff and defend
ant were exhaustive, not to say in
genious, and manifested studies atten-
ton 10 the subject matter"
The cemetery company was repre-
sented in the court action by Attorneys
J =. Iillard, who Is an ofiicfal Of the
sconceFns and csle Marbury. d
! - j + 81 &