Hallman v. Atlanta Child's Home

Gilbert, J. The act of 1910 (Acts 1910, p. 130, Park’s Ann. Code, §§ 1676(nn), 1676(oo)), provides as follows: “In all counties in this State having a population of one hundred and twenty-five thousand, or more, the board of county commissioners, or, if there be no such board, the ordinary of said county, shall have the power to grant or refuse permission to establish, outside of the limits of incorporated towns, cemeteries, hospitals, sanatoriums, or similar institutions. Said county authority, as above stated, may grant permission to establish such institutions under such regulations as they may deem proper for the public good.” The act quoted does not contain on its face any restriction upon the power of the board of county commissioners. It provides for no notice— no hearing. It does not empower the commissioners to revoke the permit once granted. However, we will assume, for the purposes of this case, that the legislature, in granting this power to the — 253 — board of commissioners, intended that the power should be reasonably exercised, as in the grant of police powers to municipalities, and that an arbitrary and capricious exercise of such power would be an abuse of discretion. Compare Blackman Health Resort v. Atlanta, 151 Ga. 507 (5) (107 S. E. 525, 17 A. L. R. 516), and authorities cited. The learned judge of the superior court, in passing upon the petition for injunction in this case, was necessarily restricted to the issue as to whether the board of commissioners of roads and revenues of Fulton County acted arbitrarily in granting the permit and refusing to revoke the same, or whether their actions constituted a reasonable exercise of the powers delegated in the act of the General Assembly. It was not a question of the exercise of a reasonable discretion upon the part of the judge of the superior court on the evidence adduced before him at the interlocutory hearing. The judge’s decision turns, not upon discretion, but upon law. In other words, the writ of error' presents a question of law. The permit to establish the cemetery had already been granted, and on petition to revoke the permit the commissioners had refused. This is alleged in the petition. The power to grant the permit had already been exercised by the very tribunal to whom the power had been delegated by the sovereign State. If the commissioners did not abuse their discretion, their action could not be controlled by a court of equity. A cemetery is not a nuisance per se. This has been definitely determined by the Supreme Court. Harper v. Nashville, 136 Ga. 141 (70 S. E. 1102). That decision fixes the law on that subject in this State. It is in line with the unbroken declarations of courts of last resort elsewhere. The petitioners in that case alleged, and the evidence tended to show, that the cemetery would adversely affect adjacent property values; and the evidence conflicted on the question of contaminating water. In the opinion.it was said: “Cemeteries are a necessity. A place where the dead may be given decent Christian burial must be established, and the location of such must necessarily be upon some tract of land more or less suitable and commodious; and it is impossible to find a tract of land that is not contiguous to the lands of some one else. And inasmuch as cemeteries must be established -and should be located where they are reasonably accessiblé, it is rarely, possible to so fix their location, when they are designed for the use of a populous town or city, — 254 — where they will not be in more or less close proximity to some residence; and unless the soil of the land used as a cemetery and that of the contiguous owners is such as to cause a drainage which will produce a contamination of the waters, thereby putting in jeopardy the health or lives of the owners of the contiguous lands and the health of their families, or unless the air would be contaminated, courts of equity will not interfere by the grant of injunctive relief to prevent the establishment and location of the cemetery. Cemeteries are not per se nuisances, and it is only in exceptional cases that their establishment and location would be enjoined by a court of equity, Where it is shown that the location of a cemetery in some place would contaminate the water used for drinking purposes or for watering cattle or other domestic animals, and that thereby the health of the residents upon the adjacent lands would be endangered, and that some other place sufficiently convenient and accessible could be procured, and that the location of the cemetery at the latter place is not objectionable upon any valid ground, equity might interfere to prevent its location in the place where it is shown there are sound reasons for apprehending danger to the life or health of those residing nearby. In this connection see the case of Elvina Braasch v. Cemetery Assn., 69 Neb. 300 (95 N. W. 646, 5 Ann. Cas. 132, and cases cited in the note); 5 Am. & Eng. Enc. Law, 791; Ex parte Wygant, 39 Or. 429 (64 Pac. 867, 54 L. R. A. 636, 87 Am. St. R. 673, and notes). The authorities cited above cover fully the principal question involved in this case.” That decision was concurred in by all six of the Justices, and it is as binding on this court as a statute of the General Assembly. Civil Code (1910), § 6207; Lucas v. Lucas, 30 Ga. 202 (76 Am. D. 642); Heard v. Russell, 59 Ga. 25, 54. In Rea v. Tacoma Mausoleum Association, 103 Wash. 429 (174 Pac. 961, 1 A. L. R. 541), it was said: “Cemeteries are not, necessarily, even shocking to the senses of ordinary persons. Many are rendered attractive by whatever appropriate art and skill can suggest, while to others of morbid or excited fancy or imagination they become unpleasant, and induce mental disquietude from association, exaggerated by superstitious fears. The law protects against real wrong and injury combined, but not against either or both when merely fanciful. The human contents of these graves can not, as they lie buried there, offend the senses in a legal point — 255 — of view. The memorial stones alone affect the senses, and the same would result to the superstitious, though nothing human lay beneath them. If this burial ground is, under the circumstances, a private nuisance, then it is also a public nuisance to every traveler who passes on that road. No decision has been called to our attention wherein any court has awarded injunctive relief, rested upon the sole ground of the mere presence of a cemetery or other place of sepulture, unattended by injurious or offensive drainage or fumes sensible to the complaining party, and our own search leads us to believe that no such decisions have been rendered. Among the decisions holding in harmony with those above quoted from, we note the following: Lambert v. Norfolk, 108 Va. 269, 17 L. R. A. (N. S.) 1061, 128 Am. St. Rep. 945, 61 S. E. 776; Dunn v. Boston, 77 Tex. 139, 11 S. W. 1125; Elliott v. Ferguson, 37 Tex. Civ. App. 40, 83 S. W. 56; Woodstock Burying Ground Asso. v. Hager, 68 Vt. 488, 35 Atl. 431; Clinton Cemetery Asso. v. McAttee, 27 Okla. 160, 31 L. R. A. (N. S.) 945, 111 Pac. 392; Musgrove v. St. Louis’s Church, 10 La. Ann. 431; Westcott v. Middleton, 43 N. J. Eq. 478, 11 Atl. 490. In the last-cited case this view of the law was applied to an undertaking establishment.” That case goes much further than the case before us. Thus it would seem that if any question is well settled it is that a cemetery is not a nuisance per se. It is a lawful and essential institution. That does not mean that a cemetery may not become a nuisance, and if this one should become such it may be closed or restrained by a court of equity. Blackman v. Atlanta 151 Ga. 507 (supra), and authorities cited; In re Bohen, 115 Cal. 372 (47 Pac. 55, 36 L. R. A. at p. 620). See the latter case on the power to prohibit cemeteries within cities. The evidence was conflicting as to the distance between the Child’s Home building and the nearest point of the land included in the permit. The following map which was introduced in evidence will serve to throw light upon that question: — 256 — It is notin the evidence that the proposed cemetery will pollute or otherwise render unfit the water on the land of petitioners. Aside from opinion evidence as to whether additional cemetery space was needed for colored people, the only evidence of probative value on the part of the plaintiffs bearing on the issue is to the effect that — 257 — tbe cemetery will reduce tbe value of surrounding lands. It is well-settled that causing depreciation in value of adjacent or near by property will not authorize a court of equity to enjoin the owners of land from subjecting it to lawful purposes. In the Harper case, supra, it was contended that the cemetery would “cause a depreciation in the market value” of the adjacent land of the petitioner. In re Bohen, supra. Compare Winchester v. Ring (312 Ill. 544, 144 N. E. 333, 36 A. L. R. 520). It also appeared that Hallman, the applicant, had at a previous meeting submitted his petition for a permit to locate a cemetery, and at that meeting evidence was heard on the part of some witnesses that additional colored cemetery space was essential to the colored population of Atlanta, while other witnesses testified to the contrary. The meeting was adjourned, and at the next monthly meeting the petition was renewed, but the location of the land was changed to the site involved in the present controversy. The subject, therefore, of the necessity for additional space for .colored cemeteries on the application of the same party had been before the commissioners and they had heard evidence on the subject. It was not necessary for the commissioners to go over that ground again after they had so recently heard numerous witnesses on the subject. As stated above, the statute does not require the commissioners to hear evidence. They need not have heard it. They could have acted upon their own information, acquired in any manner that they deemed best. If the act had required a hearing and the introduction of evidence, then the proceeding of the commissioners would have been converted into a judicial act, and in that event certiorari would have beén the appropriate remedy. Daniel v. Commissioners of Pilotage, and City of Atlanta v. Blackman, supra. Necessarily in such ease equity could not afford any relief. The evidence before the judge of the superior court on the hearing for injunction could only be considered in so far as it might throw light on the question of whether the board of county commissioners abused their discretion. Considered on the question of whether the county commissioners acted arbitrarily or in a reasonable manner, it is plain to us that the evidence before the judge was not sufficient to show that the county commissioners abused their legal discretion, rendering the grant of the permit void. Petitioners seem to assume that an exception might be made — 258 — under the law in the ease of a “colored cemetery.” For instance, the petition contains the following allegation: “Plaintiffs further allege that the atmosphere of a colored cemetery is that of superstition and gruesomeness, and is calculated to unduly arouse the emotions and superstitions of the young, as it is well known that the colored race is extremely emotional and given to much demonstration at the funérals of their dead. All the funerals and happenings thereat will come under the observation of the West Simpson and the Hightower road neighborhoods, and particularly under the observation of the children in the Atlanta Child’s Home, and will arouse in their little minds a morbid curiosity, and will keep their sympathies and emotions constantly in a sorrowful and mournful state, and they will grow up, having their fears and superstitions unduly accentuated, all of which will work to hurt of their welfare. And that the establishment of said cemetery would be a nuisance.” It is sufficient to say that the law declared by courts is intended to be such as is applicable to all classes of persons; a decision in one case becomes a binding precedent in another. Moreover,-such universality is essential both in preservation of good morals and in obedience to the supreme law of the land. There is as much necessity for the burial of negroes as for the burial of whites. Negroes are, in the main, useful and desirable citizens.' Agriculture, industry, and domestic comfort and sundry other avocations call for their services. Finally it is enjoined in the thirteenth amendment to the constitution of the United States: “No State shall make or enforce any law which shall . . deny to any person within its jurisdiction the equal protection of the laws.” It follows, from the fact that the applicants had already, in the manner prescribed by law, obtained a permit to use definite land, in the grant of which the commissioners are not shown to have abused their discretion, that the grant of an interlocutory injunction was error. Judgment reversed. All the Justices concur.