Ertter v. North Washington Cemetery, Inc.

MarKELL, J., delivered the opinion of the Court. Appellee applied to the County Council (successor to the County Commissioners) of Montgomery County for a permit, under Chapter 702 of the Acts of 1927 (Gordon v. Montgomery County, 164 Md. 210 , 164 A. 676 ), to establish and operate a cemetery at a specified location, later amended. The Council, after public hearings, approved the application for a permit and amended the zoning ordinance, as then in force, so as to permit establishment of a cemetery at the amended location. Before approval of the permit, appellants and 1500 other residents of the County petitioned the Council not to grant the permit without a hearing.

After the action of the Council appellants petitioned the circuit court for an appeal under section 91 of Article 5 of the Code. They alleged that the location of the cemetery will endanger the health, welfare and safety of the public in the vicinity, and will violate the zoning ordinance. On motion of appellee, the court dismissed the appeal for want of jurisdiction. Appellants now appeal here from the dismissal below.

Of course, the jurisdictional question is the only possible basis for appeal to this court. In Bogley v. Barber, 194 Md. 632, 639, 640 , 72 A. 2d 17, 20 , we held that the zoning act of 1939 “contains no express provision for judicial review of zoning action and does not embody by reference the provisions for appeals in Article 66B, sec. 22”, and that “in the absence of statutory provision for appeal or other adequate judicial review of administrative (or legislative) action the proper remedy is by bill in equity to enjoin enforcement of the action alleged to be unconstitutional or (in case of administrative action) arbitrary or other ²⁵⁴ wise illegal.” In that case section 91 of Article 5 was not mentioned. In Miles v. Stevenson, 80 Md. 358 , 30 A. 646 , and in Giessman v. Garrett County, 185 Md. 350, 363-364 , 44 A. 2d 862 , it was pointed out that the provisions of section 91 of Article 5 originated with