Mayor of Baltimore v. Board of Health

Boyd, C. J.. delivered the opinion of the Court. This i • an appeal from a do.too of the Circuit Court for Baltimore- County overruling demurrers to a hill in equity, and directing- the issuance of an injunction against the Mayor and City County of Baltimore and William F. Iluso, a resi ²¹² dent of Baltimore City. The plaintiffs are the Board of County Commissioners of Baltimore County and ex officio the Board of Health for that county, in which last named capacity the bill was filed. It alleges that “the Mayor and City Council of Baltimore and AVilliam F. Huse have entered into a contract whereby for a period of ninety days from January 5th, 1921, or thereabouts (the exact date not being known to the plaintiffs) all garbage collected in the City of Baltimore will be loaded on scows and said scows hauled or towed to Huse’s wharves on Bear Creek in Baltimore County, where said garbage will be unloaded” — the city having reserved the right to terminate the contract on fifteen days’ notice.

It is further alleged that the garbage “is the refuse from the kitchens of Baltimore City and consists of animal and vegetable matter in various stages of decay and putre-faction”; that the garbage to be collected and sent by scows to the wharves under- said ocntract will average at least 128 tons per -day, or a total during the ninety days of at least 1.1,520 tons; that the said Huse has not any means or machinery whatsoever for the scientific or other reduction of said garbage or for its sanitary disposal, and that this fact was well known, to the city at the time of entering into the contract; that “it is proposed by the said Huse, with the assent of the said Mayor and City Council to spread said garbage or to sell as much as he can for spreading, over the territory and land of Baltimore County, adjacent and near his said wharves for fertilizer purposes.” It is also alleged that the said wharves are well within nine miles'from Lazaretto Lighthouse on the P’atapsco River, and are located about two miles from the eastern city limits of Baltimore and about two and a half miles from the village of Dundalk and about the- same distance from the village of Sparrows Point; that Dundalk is an unincorporated village in Baltimore County of a population of approximately fifteen hundred, is a modern town with concrete. streets and public water and sewerage systems; that Sparrows Point is ²¹³ an unincorporated village in said county, having a population of approximately ten thousand, with improved streets and sewerage system; that about the wharves are small and large truck farms, shore-houses and bungalows; that the small village in Baltimore County known as Edgemere is less than two miles away and near said wharves are modern and improved highways, much frequented by the public. It is further alleged that in the summer time especially,, and during the colder weather also, many persons, men, women and children, visit the numerous shores and private pleasure resorts along Bear Greek and other creeks making off from it and the Patapsco River in the vicinity of these wharves, and the wharves and the farm lands adjacent and near them, over which it is proposed to spread the garbage, are not isolated, but, are in a more or less thickly settled, thriving and prosperous community, close to several villages in Baltimore County and various shore properties and private pleasure resorts. Strong allegations are made in considerable detail as to the effect that the garbage will have on the comfort and health of the people, some of which will he referred to later, hut the substance of them is, that it will result in being a great nuisance, likely to produce diseases, and causing great discomfort. The two defendants filed separate but similar demurrers to the bill.

The first reason assigned is that it appears on the face of the bill that neither of the defendants is resident of Baltimore County, and no facts arc shown which give the court jurisdiction over them. In the case of Baltimore City v. Sackett, 135 Md. 56 , the plaintiffs were property owners and residents of Anne Arundel County and the defendants were non-residents of that county. The object of that bill was to restrain the defendants by injunction from disposing of the garbage from the City of Baltimore on a farm known as the Jubb farm, owned by the city in Anne Arundel County. The demurrer to the- ²¹⁴ bill by the city was substantially the same as in this case, and, as here, the demurrers of the other defendants were similar, and the case came before us on an appeal from an order overruling them.

It was averred in that bill that the removal and transporting' by the city to the Jubb farm of the garbage of the city, and then causing it to be reduced in a temporary reduction plant, or fed to pigs, would result in a nuisance and destroy the value of property holdings in that section, and render the property unmarketable, etc. It was there held by us that “the Circuit Court for Anne Arundel County had jurisdiction to1 entertain a bill for an injunction to restrain a nuisance, or a threatened nuisance, directly affecting property in that county, although the defendants are non-residents of the county.” While that case differs from this in tire fact that there were property rights of the plaintiffs involved, which under the authorities established the jurisdiction of the Circuit Court for Anne Arundel County, it would seem to be an illogical distinction to make, to hold that, although a court of equity could give relief by injunction to property owners whose property is or may be affected by a nuisance, it cannot give it to a public body seeking to protect and guard the public health from a nuisance committed, or about to be committed, within the jurisdiction of that court. It is true that an injunction operates in personam, but it did in the Sackett Case, and the jurisdiction was sustained — not because it was a proceeding in rem, but because1 the res which the alleged nuisance would affect was within the jurisdiction of the court, and entitled to the protection of that court. Can it be said that the health of the community is of less importance and should not have as much protection as the property of its residents ? In addition to the many provisions intended to preserve and protect the health of the people, as found in article 43 of the Code of Public General Laws, and the amendments thereto, article 3 of the Code of Public Local Laws, entitled “Baltimore County,” has nearly fifty sections ²¹⁵ under the sub-title “Health and Sanitation.” Section 217 of the latter provides that the Board of County Commissioners of .Baltimore County shall ex officio constitute a local board of health for that county, and large and important powers are conferred on it.

They are by that section required to “inquire into and investigate, or cause to be inquired into and investigated, all nuisances affecting the public health, comfort or property of the citizens of said county, or any city, town or village-tberein; and are authorized and empowered by information or petition, filed in the name of such board, to apply to the judges or any judge of the circuit court for such county, in terun time or vacation, for an injunction to restrain and prevent such nuisance, no matter by whom or what authority committed; and further, they shall have full power and authority to preserve the health of the county, to prevent and remove nuisances, and to prevent the introduction of contagious diseases within said county." In Baltimore v. Sackett, supra, Judge, Briscoe referred with approval to 29 Cyc. 1237, whore it is said: “A suit to abate or restrain a nuisance must be brought in the county or district where the nuisance is situated, and must be tried there, unless a change of venue is granted by the court.” That is. iu accord with other authorities on the subject, and as the statute quoted above in terms gives the plaintiff the authority and power to apply to any judge of the Circuit Court for Baltimore County for an injunction to restrain and prevent such nuisance, it is difficult to undertsand liow it can be said that the lower court did not have jurisdiction to grant relief against the alleged nuisance set out in the bill, although both defendants were non-residents of the county. The bill was filed January 18th, 1921, and it alleges that the defendants had entered into the contract “whereby for a period of ninety days from January .5th, 1921, or thereabouts * * all garbage collected in the City of Baltimore will be loaded,” etc., and that it is, with the assent or said .Mayor and City Council, to be spread on the territory ²¹⁶ and land of Baltimore County adjacent to and near the wharves. Those about to engage in what is claimed to be such a nuisance as would justify,relief in equity might reside in a remote part of the State, and might come to Baltimore County with their scows loaded with garbage and unload them, or begin to unload them, yet the County Commissioners, acting as a board of health, could not enjoin them until they could arrange to have a bill filed, process issued and served at a remote part of the State, if the appellant’s position as to the jurisdiction of the Circuit Court for Baltimore County is’ well taken — notwithstanding the Legislature has 'authorized