Kennard v. McKamer Realty Company Brief of Appellants

    In  The

Court of Appeals of Maryland

September Term , 1960

N o. 131

MAMIE E. KENNARD, et al., JU LIA  JONES, et al. 
and LILLIAN  WATERS,

Appellants,

McKAMER REALTY COMPANY, e t  a l .,
Appellees.

Appeal from the Circuit Court of Baltimore City 
( Anslem  Sodaro, Judge) (S. Ralph Warnken, Judge)

BRIEF O F APPELLANTS

Tucker R. B earing,
P aul J. Cockrell,
W. A. C. Hughes, J r.,
J uanita J ackson Mitchell, 
J ulius P. Robinson,
Archie D. W illiam s,

A ttorneys for Appellants.

The Daily Record Co,, Baltimore 3, Md,



I N D E X

Table of Contents

page
Statement of the Ca s e .................................................. 1
Questions in  Controversy ............................................  1
Statement of the Fa cts ................................................ 3
Argument .........................................................................  6
Conclusion .......................................................................  50

Table of Citations 
Cases

Abel v. Proprietors of Greenmount Cemetery, 56 A.
2d 26 ............................................................. ..............  11,16

Campbell v. Holt, 115 U.S. 620, 6 S. Ct, 209 ..............  16
Catholic Cathedral v. Manning, 72 Md. 116 ..............  26
City of Cincinnati v. Cook, 140 N.E, 655, 107 Ohio St.

'223 ...............................................................................  49
City of New York v. New York, New Haven & H. Ry.

' Co., 344 U.S. 293, 73 S. Ct. 299 ..............................  19
Coombs v. Getz, 285 U.S. 434, 52 S. Ct. 435 ..................  14,15
Conney v. Town of Somers, 351 U.S. 141, 76 S. Ct. 724 19
County Commissioners v. School Commissioners of

Worcester County, 113 Md. 305, 77 A. 605 ........... 26
Davis v. State, 7 Md. 160 ..........................................26, 27, 28
Dawson v. W estern M aryland Ry. Co., 107 Md. 70,

68 A. 305 .....................................................................  10
Drennen v. Banks, 80 Md. 310, 30 A. 655 ..................  26, 31
Fletcher v. Peck, 6 Cranch 87, 3 L, Ed. 162 ..............  14
Graham v. Graham, 59 A. 2d 180, 190 Md. 434 ..........  46
Griffin v. Griffin, 66 S. Ct. 975 ...................................... 19
Hairston v. Danville & Western Ry. Co., 208 U.S. 598,

28 S. Ct, 331 17



11

H ardester v. C harretts, 84 Md. 146 ................................ 20
Hays v. Richardson, 1 G. & J. 336 ....................................  10
Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398,

54 S. Ct. 2 8 1 ...................................................................  17
K afka v. W ilkinson, 99 Md. 238, 57 A. 6 1 7 ...................  27
L am bert v. People of S ta te  of California, 78 S. Ct. 240 19
Lew is’ Appeal, 67 Pa. 153 ................................................  24
L iberto v. M. & C. C. of Baltim ore, 23 A. 2d 4 3 ...........  49
Louisville Jo in t Stock Land Bank v. Radford, 295

U.S. 555, 55 S. Ct. 854 ................................................  14,15
Lum an v. H utchens Bros., 90 Md. 1 4 ............................ 21,16
M arbury v. Madison, 1 Cranch 137 ................................ 24
M atter of Bensel, 29 N.Y. Supp. 682 ................................ 44
M atter of Simmons, 114 N.Y. Supp. 575 .......................  44
M atter of N. Y. W. & B. R. Co., 130 N.Y. Supp. 1005 45
Mayor, Etc. v. Reitz, 50 Md. 574 ....................................  26
Mayor, Etc. v. S tate, 15 Md. 469 ....................................  24
Mealey v. Hagerstown, 92 Md. 741 ................................ 38
Miggins v. Mai lot. 169 Md. 435 ........................................  29
M iller v. Wicomico Co., 107 Md. 438 ............................ 30
M ullane v. C entral H anover Bank & T rust Co., 339

U.S. 306, 70 S. Ct. 652 ..................................................  19
N utw ell v. A nne A rundel County, 110 Md. 667 .......  39
P ain ter v. M attfeldt, 119 Md. 466, 87 A. 4 1 3 ...............  22
Panhandle E astern  P ipe Line Co. v. S ta te  H ighw ay

Commission of Kansas, 55 S. Ct. 563 ...................  18
Parkinson v. S tate, 14 Md. 1 8 4 ........................................  28
Partridge, E t Al. v. F irs t Independent Church of

Baltim ore, 39 Md. 620 ............................................ 10,11,12
Pennsylvania Coal Company v. Mahon, 260 U.S. 393,

43 S. Ct. 158 ................................................................... 17
People v. D raper, 15 N.Y. 543 ............................................  24
Phillips Petroleum  Co., E t Al. v. Jenkins, 297 U.S.

629, 56 S. Ct. 611 ........................................................  14
Q uenstedt v. Wilson, 173 Md. 11 .................................... 29

PAGE



I l l

Regents, Etc. v. W illiams, 9 G. & J. 408 ........................ 24
R eport of Ruggles (N.Y .), 4 B radf. Sun. 503 ...........  45
Scharf v. Tasker, 73 Md. 378, 21 A. 5 6 ............................ 26
Shea v. S tate, 148 Md. 256 ................................................  32
Shelly  v. K raem er, 68 S. Ct. 836 .................................... 19
Silverwood v. Latrobe, 68 Md. 620, 13 A. 161 ...........  11,13
S tate  v. Baltim ore & Ohio R. R. Co., 127 Md. 434, 96

A. 636 .............................................................................  14
S ta te  v. McKinney, 29 Mont. 375, 74 P. 1095 ...............  26
S ta te  v. Morris, 70 Md. 91 ................................................  28
S ta te  v. Schultz Gas F ix tu re  & A rt M etal Co., 83

Md. 58, 34 A. 243 ......................................................... 26
Trustees of D artm outh College v. W oodward, 4

W heat 518, 4 L. Ed. 629, 17 U.S. 5 1 8 ........................ 13, 14
Von Hoffman v. City of Quincy, 4 W all 535, 18 L. Ed.

403 ...................................................................................  14
W alker v. City of Hutchinson, 352 U.S. 118, 77 S. Ct.

200 ...................................................................................  19,21
W ar then Company v. Thomas, 292 U.S. 425, 54 S. Ct.

816 ...................................................................................  14
W hitm an v. S tate, 80 Md. 410, 31 A. 325 .......................  26
W hitm ore v. W oodlawn Cem etery, 75 N.Y. Supp. 847 44
W indt v. Church, 4 Sandf. 471 ........................................  11

PAGE

Miscellaneous
A nnotated Code of M aryland:

Art. 16, Sec. 120 ....................................2, 3, 7,13,16,18, 20,
21, 27, 36, 43, 48, 49

A rt. 23, Sec. 176 ............................................................  11
Art. 23, Sec. 165 ...................................................... 13, 42,43
Art. 16, Sec. 119............................................................  36, 37

M aryland Constitution, Art. I ll, Sec. 29 ...............2, 23, 25, 27



IV

M aryland Rules of P rocedure:
Rule 1 ...............................................................   6
Rule 104 .........................................................................  20
Rule 105 (g) .................................................................2,4, 6, 7
Rule 180 .........................................................................  19

U nited S tates Constitution:
A rt. I, Sec. 10 .............................................................7,14,18
14th A m endm ent ........................................................  18, 20

Laws of M aryland:
Law s of 1852, Ch. 2 21 ................................................ 9,12,13
Laws of 1868, Ch. 211 .......................................... ...... 32, 40
Laws of 1888, Ch. 369 ............................................34, 46, 40
Laws of 1900, Ch. 75 ....................   38
Laws of 1912, Ch. 345 ...............................................  22
Laws of 1957, Ch. 630 ................................21, 37, 38,39, 43

Black’s Law  Dictionary, 3rd Edition ............................ 15
Cooley on Con. Lim., 3rd Edition, 175 .........................  24
Cyclopedic Law  Dictionary, 1940 E d itio n ..................  15
The Law  of Cadavies, 1936 E d itio n ................................ 45
16 C.J.S. 178 ...........................................................................  49
49 C.J.S. 269 ...........................................................................  46

PAGE



In The

Court of Appeals of Maryland

September Term , 1960

N o. 131

MAMIE E. KENNARD, et al., JU L IA  JONES, et al. 
and LILLIAN  WATERS,

Appellants,
v.

McKAMER REALTY COMPANY, et al.,
Appellees.

Appeal, from the Circuit Court of Baltimore City 
(A nslem  Sodaro, Judge) (S. Ralph Warnken, Judge)

BRIEF OF' A PPELLANTS

STATEMENT O F TH E CASES
These are th ree  appeals from  separate decrees passed by 

th e  C ircuit Court of Baltim ore City (Sodaro and W arnken, 
Judges) dismissing A ppellants’ Bills of Com plaint for Re­
view  and other relief.

QUESTIONS IN CONTROVERSY
I.

W ere the Decree Pro Confesso and  the subsequent F inal 
D ecree en tered  by th e  C ircuit C ourt of Baltim ore City 
Docketed as Case Docket 97A, Folio 878 of the said C ourt 
p u re  nullities in view of the  absolute failure of the Com­
plainants to file the  affidavit as required  by Rule 105(g)



2

of th e  M aryland Rules of P rocedure prom ulgated by the  
C ourt of Appeals of M aryland? If so, was not such Court 
of Equity  w ithout jurisdiction and  therefore powerless 
to  pass any such decree or decrees?

II.
Did th e  Chancellors in  th e  in stan t cases e rr  in refusing 

to en ter a judgm ent declaring th a t A rticle 16, Section 120 
of the  A nnotated Code of M aryland is in  contravention of 
A rticle I, Sec. 10 of the Constitution of the  U nited States 
in  th a t A rticle 16, Section 120 of the  A nnotated Code of 
M aryland abrogates the  contracts of th e  Com plainants and 
the  m em bers of the  class represented  by the  Complainants?

III.
Did the  Chancellors e rr  in  the  instan t cases in refusing to 

strike out th e  D ecree P ro  Confesso and the  final decrees 
in  view  of A ppellants’ allegations and proof th a t said de­
crees w ere en tered  in violation of the  D ue Process Clause 
of the F ourteen th  A m endm ent to the  Constitution of the 
U nited States?

IV.
W ere the D ecree P ro  Confesso and the  subsequent final 

decree en tered  by the  C ircuit Court of Baltim ore City 
docketed as Case Docket 97A, Folio 878 of the said Court 
p u re  nullities in  view  lof the fact th a t A rticle 16, Section 
120 of the A nnotated Code of M aryland is in  violation of 
A rticle III, Section 29 of the Constitution of M aryland?

V.
A re th e  A ppellants entitled  to have the  D ecree of the 

C ourt in  th e  case of McKamer Realty Company v. Anderson 
Enterprises, Incorporated, et a t, 97A, Folio 878, set aside 
inview  of the  proofs presented th a t such D ecree was ob­
tained by fraud  upon the  Court?



3

VI.
Should A rticle 16, Section 120 of the A nnotated Code 

of M aryland be declared unconstitutional to the ex ten t tha t 
it attem pts to delegate the police pow er of the  S tate  of 
M aryland to p riva te  individuals?

VII.
Is A rticle 16, Section 120 of the  A nnotated Code of M ary­

land unconstitutional for the  reason th a t it is an unreason­
able discrim ination against cem etery lot ow ners in B alti­
m ore City in violation of the Equal Protection Clause of the 
F ourteen th  A m endm ent to the U nited S tates Constitution?

STATEMENT OF FACTS
Laurel C em etery was incorporated in 1852 pursuan t to 

an A ct of the M aryland Legislature. Follow ing this in­
corporation the m anagem ent of the cem etery proceeded 
to sell lots and issue deeds under the  seal of the corporation. 
Num erous bodies w ere in terred  in the  cem etery and  for 
m any years following 1852 the  cem etery enjoyed a high 
repu ta tion  as a cem etery in the  Baltim ore community.

D uring the  1930’s and 40’s the  m anagem ent of th e  ceme­
te ry  became lax to the ex ten t th a t the cem etery was not 
being w ell kept even though in ternm ents w ere continuing. 
In  1949 a  group of in terested  lot owners form ed an associa­
tion and raised about $1,000.00 w hich was spent for the 
im provem ent and beautification of th e  cem etery. John  G. 
K aufm an, then  P residen t of the  cem etery, m et w ith  this 
group of in terested  lot ow ners and the ir a tto rney  and dis­
cussed plans for the  im provem ent of the  cem etery, how­
ever Mr. K aufm an failed to give any assistance in this 
regard.

In  1952 John  G. K aufm an pu t the cem etery in voluntary 
bankruptcy w here nothing more was done un til 1957 
w hen the M aryland Legislature passed a Bill authorizing



4

the  sale of cem eteries in  Baltim ore City w hen such ceme­
teries w ere 75% abandoned. Follow ing the passage of this 
law  the  M cKamer R ealty  Company, a corporation form ed 
by John  G. Kaufm an, C lem ent R. Mercaldo and Lloyd G. 
M cAllister, purchased the  cem etery from  the  T rustee in 
B ankruptcy for the  nom inal sum  of $100.00. T hereafter the 
M cK am er R ealty  Company transferred  a portion of the  
cem etery, by Q uit Claim Deed, to Anderson Enterprises, 
Incorporated.

On Decem ber 10, 1957 the M cKamer R ealty  Company 
filed its B ill of Com plaint in  the  C ircuit C ourt of B altim ore 
C ity for the  sale of the  cem etery under th e  provisions of 
A rticle 16, Section 120 of the  A nnotated Code of M aryland. 
The Bill nam ed as defendants, A nderson Enterprises, Inc., 
several know n defendants w ithout addresses, and other 
unknow n defendants. An O rder of Publication w as issued 
in  accordance w ith  the S tatu te, and  A nderson Enterprises, 
Inc., filed an answ er through its solicitor. On A pril 14, 
1958 a D ecree Pro Gonfesso was issued even though no 
affidavit w as ever filed in compliance w ith  the requirem ents 
of Rule 105 (g ) of the M aryland Rules of Procedure.

The case was referred  to the  Exam iner-M aster and on 
A pril 24, 1958 testim ony w as taken. Several witnesses, in­
cluding Complainants President-Counsel, testified as to 
various aspects of the  cem etery, and Com plainants P resi­
dent-Counsel testified th a t he had made a thorough and 
exhaustive search for lot owners, b u t had  been unable to 
locate any of them. On M ay 16, 1958, the  Exam iner-M aster, 
apparently  being concerned about the  fact th a t burials w ere 
still being m ade in  the  cem etery, recalled  Complainants 
President-Counsel for additional testim ony a t w hich tim e 
it was adm itted  th a t there  had  been a  burial a  short tim e 
before, bu t no inform ation could be gotten as to the  w here­
about tof the  deceased person’s family. On M ay 27, 1958 the 
report of the Exam iner-M aster was filed in the  C ircuit C ourt



5

w ith  a recom m endation th a t the C ourt decree a sale of the 
cem etery.

On Ju n e  10, 1958 the Court ordered the  sale of the ceme­
te ry  and appointed Edw ard A. Anderson, P residen t of De­
fendant A nderson Enterprises, Inc., T rustee for the  purpose 
of m aking the  sale upon certain  conditions. On Ju ly  10, 
1958 the  Belair Roads E nterprises w as incorporated and on 
the  sam e day Clem ent R. Mercaldo, John  G. K aufm an and 
Lloyd G. M cAllister, sole owners of Com plainant Corpora­
tion, purchased all of the stock of the B elair Roads E nter­
prises, Inc., and C lem ent R. Mercaldo, President-Counsel 
for Com plainant, was elected president of the  Belair Roads 
Enterprises, Inc. On Ju ly  14, 1958 B elair Roads Enterprises, 
Inc., en tered  into a contract w ith  Edw ard A. Anderson, 
T rustee for th e  purchase of the  cem etery by  B elair Roads 
Enterprises, Inc. This contract was signed by one Benjam in 
J. M artin  as president of Belair Roads Enterprises, Inc. On 
Ju ly  25, 1958 Clem ent R. Mercaldo resigned as president 
of B elair Roads Enterprises, Inc., and Benjam in J. M artin 
was elected president. On October 16, 1958 Benjam in J. 
M artin  resigned as president of Belair Roads Enterprises, 
Inc., and Clem ent R. M ercaldo was again elected presi­
dent.

On Septem ber 11, 1958 the  Court ratified th e  sale of 
the  cem etery to Belair Roads Enterprises, Inc., and subse­
quently  th a t corporation set about to  rem ove the bodies to 
a  corn field in C arroll County. A bout December, 1958 
Com plainants herein  learned through the  local press tha t 
the  cem etery had  been sold and bodies w ere being removed.

In  May, 1959 Complainants brought the  th ree  cases herein  
involved, all seeking to have the  Court review  and set 
aside its prior action. D efendants filed Answ ers and moved 
to have the  cases consolidated for trial, bu t abandoned 
the ir motion and w ent to tria l on the Jones and Waters



6

cases on Decem ber 18, 1959 before the  Honorable S. Ralph 
W arnken sitting as a Chancellor in Equity. The Kennard 
case was heard  before the  H onorable A nselm  Sodaro in  
Jan u a ry  1960. N um erous witnesses w ere called by Com­
pla inants for the  purpose of establishing the fact th a t the 
sale of the  cem etery had been accomplished by a fraud  
having been practiced upon the Court, and th a t Com­
plainants have a valid  defense to th e  sale of the cem etery.

ARGUMENT
I.

W ERE T H E  DECREE PRO  CONFESSO AND T H E  SUBSEQUENT 
FINAL DECREE ENTERED BY T H E  C IRCU IT COURT O F BA LTI­
M ORE C ITY  D OCKETED  AS CASE D OCKET 97A  FOLIO 878 O F 
T H E  SAID C IRCU IT COURT PURE NULLITIES IN V IE W  OF T H E  
ABSOLUTE FAILURE O F T H E  COM PLAINANTS TO  FILE T H E  A F­
FID A V IT  AS REQUIRED BY RULE 105G OF TH E MARYLAND RULES 
O F PROCEDURE PROM ULGATED BY T H E  COURT O F APPEA LS 
O F M ARYLAND? IF  SO, W AS NOT SUCH COURT OF EQUITY 
W IT H O U T  JU R ISD IC T IO N  AND TH ER EFO R E POW ERLESS TO 
PASS ANY SUCH DECREE OR D ECREES?

The D ecree P ro  Confesso and the  subsequent F inal 
D ecree entered by  the  C ircuit C ourt of B altim ore City 
docketed as Case Docket 97A, Folio 878 of th e  said C ircuit 
C ourt w ere p u re  nullities in view  of the  com plainants abso­
lu te  failure to file the  affidavit required  by Rule 105G of 
th e  M aryland Rules of Procedure prom ulgated by the Court 
of Appeals of M aryland. I t  therefore follows th a t the  Court 
of E quity  of B altim ore C ity was w ithout jurisdiction and 
powerless to pass th e  D ecree P ro  Confesso and F inal 
Decrees.

Rule I  of the  M aryland Rules p rovides:
“The following Rules of P rocedure apply to appeals 

to the  C ourt of Appeals and to procedure in all Crim i­
nal and Civil Actions a t Law  and in Equity, including 
juvenile causes in  C ourt of this State. They m ay be 
cited as the ‘M aryland Rules’.”



7

Rule 105G of the M aryland Rules of this Court p rovides:
“W here notice by publication alone has been given, 

because th e  residence or w hereabouts of the  defendant 
is unknown, no in terlocutory  or final judgm ent for the  
plaintiff shall be given un til proof is m ade by affidavit 
to  the  satisfaction of the  C ourt th a t reasonable efforts 
to  locate the defendant and to w arn  him  of th e  pend­
ency of th e  action, have been made. The failure of the 
plaintiff to m ake such reasonable effort in good faith, 
and  to offer proof thereof, shall be ground for th e  post­
ponem ent or denial of the  en try  of a D ecree P ro  Con- 
fesso, judgm ent by  default or final judgm ent.”

W e contend th a t compliance w ith  Rule 105, Section G, 
requiring  the  affidavit to be filed is m andatory and Defen­
dants in the  instan t case, the  plaintiffs in McKamer Realty 
Company v. Anderson Enterprises, Inc., fa ilu re  to file the 
affidavits v itiated  the  en tire  proceedings and rendered  the 
action of th e  Court in entering the  D ecree Pro Confesso and 
F inal D ecree a legal nullity.

W e fu rth e r subm it th a t the  C ourt w as w ithout jurisdic­
tion  to  en te r th e  D ecree P ro  Confesso and F inal Decree 
w here plaintiffs in th e  McKamer case had not and did not 
comply w ith  Rule 105, Section G.

II.
DID T H E  CHANCELLORS IN TH E IN STAN T CASES ERR IN R E­

FUSING TO  ENTER A JUDGM ENT DECLARING T H A T  ARTICLE 16, 
SECTIO N  120 O F T H E  A NN OTATED CODE OF MARYLAND IS IN 
CON TRA VEN TION  O F ARTICLE I, SECTION 10 OF T H E  C O N STI­
TU TIO N  O F TH E UNITED STA TES IN T H A T  ARTICLE 16, SECTION 
120 O F TH E A NN OTATED CODE O F MARYLAND ABROGATES 
T H E  CONTRACTS O F TH E COM PLAINANTS AND TH E MEMBERS 
O F T H E  CLASS REPRESENTED  BY T H E  COM PLAINANTS?

The Chancellors in th e  instan t cases erred  in  refusing to 
en ter a judgm ent, declaring th a t A rticle 16, Section 120 of 
th e  A nnotated Code of M aryland is in  contravention of 
A rticle I, Section 10, of the Constitution of the  U nited



3

States, in th a t A rticle 16, Section 120, abrogated th e  deeds 
of lot holders and divested vested p roperty  rights.

P lain tiffs’ deeds in  th e  instan t cases gran ted  fee title  to 
th e  bu ria l lots and also easem ents of egress and  ingress 
to  each lot. Most of th e  deeds held  by plaintiffs and the  
m em bers of th e  class w hich they  represen t are in th e  fol­
low ing form :

“Know all M en by these presents, th a t L aurel Ceme­
te ry  Company, in  consideration of S ix ty  Dollars, the 
receip t of which is hereby acknowledged, has granted, 
bargained and sold, and  conveyed, and by  these pres­
ents doth  grant, bargain  and sell, and convey to C lar­
ence E. Roy — His heirs and assigns one lot of ground 
in  L aurel Cem etery in  Baltim ore County in  th e  S ta te  
of M aryland, and N um bered 186 in  Section R, on the  
p lan  of said cem etery, containing eighty square feet, 
m ore or less, w hich plan  is in  possession of said cor­
poration for inspection by the  G rantee, his heirs and 
assigns a t all reasonable times, w ith  th e  righ t of w ay 
to and from  the  said lo t along the  avenues, walks, paths 
and ways of said cem etery, to have and to hold th e  said 
lo t and th e  righ t of w ay aforesaid to th e  said Clarence 
E. Roy, his heirs and assigns forever, for the  purposes 
of sepulture alone and none o ther subject to  the pro­
visions of a general act of the  G eneral Assem bly of 
M aryland, passed a t Jan u ary  Session, E ighteen H un­
dred and Fifty-two, C hapter 221, entitled: ‘A n act to 
Incorporate C em etery Companies and subject also to 
conditions, ru les and regulations’, adopted and to be 
adopted by  th e  M anagers of said L aurel Cem etery 
Company. No transfers recognized unless m ade and 
attested  a t the office of the company.

In  Testim ony whereof, the  P residen t and M anagers 
of L aurel Cem etery Company have caused their Cor­
porate  Seal to be fixed to this Deed and the  P resident 
of said Corporation hath  hereto subscribed his name, 
th is 20th day of December, N ineteen H undred and 
N ineteen.”



9

This deed is signed and w itnessed by th e  P residen t and 
S ecretary  of the  Laurel Cem etery Company, and th e  Cor­
porate  Seal was affixed.

On th e  back of the  deed the  in term ents in  said lo t are 
recorded. This deed points up  th e  form  used in all the 
deeds held  by  plaintiff lo t owners and the m em bers of the  
class represented  by plaintiffs.

The Laurel Cem etery Company of Baltim ore was incor­
porated  in th e  Superior Court of Baltim ore C ity on June  26, 
1852, pu rsuan t to th e  provisions of C hapter 221, titled  “An 
A ct to Incorporate Cem etery Companies”. Said A ct was 
passed M ay 11, 1852, by the  M aryland Legislature and was 
signed by  G overnor E. Louis Lowe.

Sections 5 and 6 of C hapter 221, provides as follows:
Section 5:

“A nd be it enacted, th a t every burial lo t sold or con­
veyed in  such cem etery, shall be held by  the  proprie­
tors thereof, for the  sole purpose of sepulture, and for 
none other, and shall not in any m anner be subject to 
attachm ents or execution for debts, or affected by  the 
insolvent laws of the  S ta te  of M aryland, b u t the  estate 
of the  ow ner or owners, in their respective lots, shall 
descend as rea l estate to heirs, m ay be devised by  will, 
or m ay be disposed of by  the  ow ner by  sale, w ith  the 
approval of the  president and m anagers of th e  cor­
poration.”

Section 6:
“A nd be it enacted, th a t a certificate under seal of 

the  corporation of the  ownership of any lot, sold and 
conveyed as aforesaid, shall, in all respects, have the 
sam e effect as any conveyance from  such corporation 
of said lo t w ould have, if executed, acknowledged and 
recorded as conveyances of real estate, are, by  the  laws 
of this S tate, required  to be.”

Section 9 of said Act provides:
“And be it enacted, th a t this A ct shall be in force 

from  and after its passage.”



10

In  the  case Partridge, et al. v. The First Independent 
Church of Baltimore, decided M arch 3, 1874, 39 Md. 620, 
The F irs t Independent Church of Baltim ore purchased a 
lo t of ground in  fee fo r a cem etery, and it was used for such 
purpose. To those purchasing th e  rig h t of burial therein, 
a  certificate w as issued, w hereby it w as certified th a t th e  
p a rty  to whom it was issued w as the  proprietor of a certain  
designed lo t in  th e  cem etery of The F irs t Independent 
Church of Baltim ore, and th a t such lo t w as granted and 
conveyed by th e  Church to the party , his heirs and assigns 
forever; subject to  th e  regulations of th e  trustees of the  
Church. This certificate was neither under seal, nor ac­
knowledged, nor recorded; b u t was sim ply signed by the 
C hairm an of the Trustees and attested  by the  register.

The C ourt held:
“W e th ink  it clear th a t it (certificate) conferred no 

title  or estate in  the  soil; nor could it operate as a gran t 
of an  easem ent, because i t  was not under seal, nor 
acknowledged and  recorded, so as to be effective to 
convey such an  interest, Hays v. Richardson, 1 G. & J. 
336. The righ t to an easem ent m ust be founded upon 
a g ran t by deed, or upon prescription, for it  is a perm a­
n en t in terest in ano ther’s land, w ith  a  r ig h t of enjoy­
m ent; w hereas a m ere license is b u t an  au thority  to do 
a particu la r act, or series of acts, upon another’s land, 
w ithout possessing estate therein, 3 Kent. 452. A t most 
then, the  certificate, such as w e have here, conferred 
only a privilege or license to m ake in term ents in the  
lot described exclusively of others, as long as the 
ground rem ained a burying ground or cem etery.”

I t  is elem entary  th a t in  th e  absence of a sealed in stru ­
m ent you cannot convey an in terest in  rea l estate. In  
Dawson v. Western Maryland R. Co., 107 Md. 70, 68 A. 305, 
th e  C ourt of Appeals of M aryland said a t page 93 :

“I t  has been settled  by  a long line of decisions in this 
S ta te  th a t our s ta tu te  requiring  deeds conveying an 
estate  of inheritance or freehold, or any  declaration or



11

lim itation of use, or any estate above seven years, to 
be executed, acknowledged and recorded as therein  
provided, is applicable to  grants of or covenants for 
easem ents in land  (citing cases) * * * th e  principle has 
been announced in equity, as well as a t law .”

The Partridge case, supra, is no t in point here because the  
deeds of th e  lot owners w ere under seal. The grantor in the 
p resen t deeds was a  cem etery company, incorporated under 
the  laws of the  S ta te  of M aryland. The certificate in the  
Partridge case was issued by a Church.

I t  is settled  law  in M aryland th a t lots in a cem etery are 
real estate, Abel v. Proprietors of Green Mount Cemetery, 
56 A. 2d 26; Silverwood v. Latrobe, 68 Md. 620, 13 A. 161.

In  the  Abel case, the  C ourt said:
“The A ppellant in fu rtherance of her position shows 

th a t Section 176 of A rticle 23 of the  Code provides th a t 
the estate of the  ow ner in a bu ria l lot in a cem etery is 
rea l estate, th a t th e  A ct of 1837, C hapter 164, incor­
porating the proprietors of the G reen M ount Cemetery, 
declares a lot in  th a t cem etery to be real estate and 
th a t th e  case of Silverwood v. Latrobe, supra, states 
th a t th e  grantee of such lots has a qualified fee lim ited 
to the purpose of sepulture. She therefore claims tha t 
restrictions on th e  use of such lots should be trea ted  
in  the sam e m anner as ord inary  restrictions on the  use 
of land and not favored by the  law, and are  s tric tly  
construed against the  grantor. * * * Such lots are thus 
m ade a striking exception to free transfer. Places of 
bu ria l are not for b a rte r and sale. They are expected to 
rem ain  in the  possession of the  fam ily of those purchas­
ing them  and it is a  fact of w hich w e m ay take judicial 
notice th a t they frequently  do for generations.”

In  the  Silverwood case, supra, “W hen burying lots in a 
cem etery have been conveyed by a corporation, a righ t of 
property  is conferred on the purchaser which is like any 
o ther righ t to real estate. W indt v. Church, 4 Sandf. Ch.



12

471.” The C ourt then  distinguishes th e  Partridge case, 
supra:

“U nlike the  case of Partridge, 39 Md. 631, the  Appel­
lan t has a title  to th e  lo t by v irtu e  of an instrum ent of 
w riting, under seal, w hich operates as a deed of con­
veyance. The A ct of 1837 declares the  p roperty  to  be 
rea l estate. The grantee has a qualified fee lim ited to  
the  purpose of sepulture. The second clause of the  in­
strum en t conveying the  property , gives him  the  righ t 
to p lan t and cultivate trees, shrubs, and flowers. * * * 
W hen he accepted the  deed, and paid  the  purchase 
money, he  acquired th is right. H ad he been unable to 
secure th e  right, it is possible, and even probable, th a t 
he  would not have purchased the  property. No order 
subsequently passed by  the  grantors can be so con­
strued  as to have a retroactive operation, and  thus 
lim it or annul the privilege secured to the  grantee by 
a solemn instrum ent under seal. * * * They m ight m ake 
general rules and regulations for th e  m anagem ent of 
the cem etery, bu t not special rules w hich would der­
ogate from  prior grants.”

I t  is clear from  these decisions th a t plaintiffs enjoyed a 
qualified fee in the ir lots in  the  cem etery. I t  is also clear 
from  th e  A ct of Assem bly giving L aurel Cem etery the 
righ t to incorporate, C hapter 221, 1852, from  the  C harter 
of the  Cem etery Companies, and from  th e  deeds granting 
these lots to plaintiffs and the  m em bers of the class which 
they  represent, th a t each lot ow ner had “the  rig h t of w ay 
to  and from  th e  said lo t along th e  avenues, walks, paths 
and w ays of said cem etery”.

The cem etery company was the  tru stee  of these rights. 
P laintiffs w ere the  beneficiaries of said tru s ts  set up  in 
every deed. The p roperty  rights here  w ere indestructible 
and could not be destroyed by th e  trustees. The Court in 
th e  bankruptcy proceedings was careful not only to recog­
nize these rights b u t to reserve the  righ ts of these plaintiff s. 
W e fu rth er sta te  th a t th e  Court did not have jurisdiction



13

to deprive plaintiffs of these rights by order of publication 
w hich rare ly  notifies persons of any proceedings and did 
not notify any of the  plaintiffs or m em bers of th e ir class 
in  the  condem nation proceedings in this Court.

F urtherm ore Section 165, A rticle 23, 1957 Code (said 
Section has been in th e  Code since 1868 ) provides th a t the 
estate  of the  ow ner in a burial lot in a cem etery is real 
estate.

W e subm it th a t the  language in C hapter 221, Sections 5 
and 6, is ju s t as appropriate fo r conveying an estate  in  a 
cem etery lo t as th e  language w hich this Court found in 
Section 8, C hapter 164 of the Acts of 1837, conveyed an 
estate in a cem etery lo t in G reenm ount C em etery in  Silver- 
wood v. Latrobe, supra.

I t  is clear th a t the  lot owners in the instan t cases had 
vested estates in the ir lots w hich th e  Legislature and 
Courts w ere powerless to divest by  subsequent action.

The action of th e  C ircuit C ourt of Baltim ore C ity pu r­
suant to Section 120 of A rticle 16 of the  A nnotated Code of 
M aryland im paired th e  obligation of the  deeds. F u rth e r 
the  action of the  C ircuit Court of B altim ore C ity pursuant 
to Section 120 of A rticle 16 of the A nnotated Code of M ary­
land  im paired the  obligation of the  C harter of th e  Laurel 
C em tery Company granted to it by the  S ta te  of M aryland 
on th e  26th day of Ju n e  1852 pursuan t to th e  provision of 
C hapter 221 of the  A cts of the M aryland G eneral Assembly 
passed in  1852.

Courts have held in  a long line of cases th a t im pairm ent 
of the  obligation of a contract by  an  act of th e  Legislature 
of a S ta te  contravenes A rticle I, Section 10 of th e  Consti­
tu tion  of the  U nited S tates providing th a t “No S ta te  shall 
pass any  law  im pairing obligation of th e  contracts.” Trus­
tees of Dartmouth College v. Woodward (1819), 4 W heat.



14

518, 4 L. Ed. 629, 17 U.S. 518; State v. Baltimore and Ohio 
Railroad Company, 127 Md. 434, 96 At. 636; Fletcher v. 
Peck (1810), 6 Cranch. 87, 3 L. Ed. 162; Von Hoffman v. 
City of Quincy, 4 Wall. 535, 18 L. Ed. 403; Phillips Pe­
troleum Co. et al. v. Jenkins, 297 U.S. 629, 56 S. Ct. 611; 
W arthen Co. v. Thomas, 292 U.S. 425, 54 S. Ct. 816; Coombes 
v. Getz, 285 U.S. 434, 52 S. Ct. 435; Louisville Joint Stock 
Land Bank v. Radford, 295 U.S. 555, 55 S. Ct. 854.

Trustees of Dartmouth College v. Woodward, supra, held 
th a t a  1769 royal C harter giving “The Trustees of D art­
m outh  College”, au thority  to fill all vacancies in the ir own 
body could not be changed by  a S ta te  s ta tu te  of New 
H am pshire in  1816. This C ourt held  in State v. Baltimore 
& O. R. Co., supra, th a t the  charter of a  railroad company 
by the  S ta te  is a contract betw een th e  S ta te  and the  com­
pany w ith in  the  protection of A rticle I, Section 10 of the 
U nited S tates Constitution and the  Legislature m ay not 
w ithou t th e  consent of th e  company, repeal or m odify the 
im m unity from  taxation  conferred by the  charter. In 
Fletcher v. Peck, supra, contracts w ith in  the  m eaning of 
A rticle I, Section 10, em brace those th a t are  executed, tha t 
is, grants, as w ell as those th a t are  executory. In  Von Hoff­
man v. City of Quincy, supra, i t  was held  th a t th e  ow ner 
of coupons on bonds of th e  C ity issued under an  A ct of 
th e  Legislature authorizing the  C ity to collect taxes for its 
paym ent could not be deprived of his rig h t to paym ent by 
a subsequent act of the  Legislature repealing th e  Act 
authorizing th e  bonds.

Phillips Petroleum Co., et al. v. Jenkins, supra, held th a t 
the  reserved  pow er to am end is no t unlim ited and cannot 
be exerted  to  defeat the  purpose for w hich the  corporate 
powers w ere granted, or to take property  w ithout compen­
sation, or arb itra rily  to m ake alterations th a t are  incon­
sistent w ith  th e  scope and object of th e  charter o r to de­
stroy or im pair any vested p roperty  right. Warthen Co. v.



15

Thomas, supra, held th a t a S ta te  s ta tu te  w hich exem pt pro­
ceeds of life policy from  liability  or seizure under judicial 
process was unconstitutional under th e  contract clause of 
U. S. Constitution; as applied to debt owing and reduced to 
judgm ent before th e  enactm ent, notw ithstanding legisla­
tive  declaration of emergency, w here act contained no lim i­
tations as to time, am ount, circum stances or need. In  
Coombes v. Getz, supra, “The au thority  of a S ta te  under the 
so called reserved pow er is wide; b u t is no t unlim ited. The 
corporate charter m ay be repealed or am ended and w ithin  
lim its not now necessary to define, the  in terrelations of 
S tate, corporation, and stockholders m ay be changed; bu t 
neither vested property  rights nor th e  obligation of con­
tracts of th ird  persons m ay be destroyed or im paired.”

In  Louisville Joint Stock Land Bank v. Radford, supra, 
th e  Suprem e Court held the  F irs t F razier A ct w hich pro­
vided for the F arm er M ortgagors failing to obtain a compo­
sition or extension of existing indebtedness could re ta in  
possession for five years upon paym ent of a reasonable 
ren ta l fixed by the Court, w ith  an option to purchase a t 
appraised or reappraised value during th a t period, was 
invalid. “The B ankruptcy pow er like the  o ther G reat 
Substantive Pow ers of Congress is subject to th e  F ifth  
A m endm ent to the Constitution of the U nited S tates.”

A  deed m ay be defined as a “w ritten  instrum ent under 
seal, containing a contract o r agreem ent w hich has been 
delivered by the  obligee or covenantee. A w riting  under 
seal, by  w hich lands, tenem ents, or hereditam ents are con­
veyed for an estate no t less; than a freehold.” The Cyclo­
pedic Law  D ictionary, 1940 Edition.

“A t common law, a sealed instrum ent, containing a 
contract or covenant delivered by the  p a rty  to be bound 
thereby, and accepted by th e  p a rty  to  whom th e  con­
trac t or covenant runs. * * * A w riting  containing a 
contract sealed and delivered.” Black’s Law  Diction­
ary, 3rd Edition.



16

I t  has already been established th a t plaintiffs, and the 
m em bers of the class represen ted  by plaintiffs had a prop­
e rty  righ t in  th e  lots in L aurel Cemetery. Abell and Latrobe 
cases, supra. W hether the lot owners had fee simple deeds 
or fee qualified deeds, they  still had  a p roperty  in terest in 
these lots. U nder the  deeds they  had, the  righ t to have 
th e ir  dead rem ain in terred  in  th is cem etery un til it should 
be abandoned, these w ere vested p roperty  rights.

W hen Section 120 of A rticle 16 provided for the taking 
of the  cem etery w hen it should become 75% abandoned, 
th is substantially  lessened and im paired these contract 
rights. The plaintiffs have found no requirem ent th a t 
lo t ow ners in  a cem etery record the ir deeds anyw here ex­
cept a t the  cem etery company. The fact th a t D efendants 
have either w ilfully  destroyed or negligently lost said 
recorded deeds cannot invalidate said recordation a t the  
cem etery company. Section 120 purports to take, w ithout 
notice or ju s t compensation, the p roperty  of “all deed 
holders” p roperty  not recorded a t the  Court House, w ithout 
any notice to them  th a t they m ust record them  and w ith­
out giving them  a reasonable opportunity  to record them. 
This abrogated the ir contracts, See 131 A. 2d 49, Opinion of 
the N ew  Hampshire Justices; Campbell v. Hold, 620, 115 
U.S., 6 S. Ct. 209. In  the  Campbell case it w as held tha t 
rem oval of the bar of th e  S ta tu te  of Lim itations w here 
property  rights had vested, to divest such property  rights 
was unconstitutional.

A rticle 16, Section 120 is void for the reason th a t the 
legislation was not addressed to a legitim ate end; the  legis­
lation w as for the  advantages of particu la r individuals 
and not for the protection of a basic in terest of society. 
F urther, no em ergency existed in M aryland w hich fu r­
nished a proper occasion for the exercise of the reserved 
pow er of the S ta te  to p ro tect any basic in terest of society.



17

Home Building & Loan Ass’n. v. Blaisdell, 290 U.S. 398, 54 
S. Ct. 281.

I t  is contended that, w hile some values incident to prop­
e rty  are enjoyed under an  im plied lim itation, and the 
governm ent m ay to some ex ten t dim inish such values 
w ithout compensation, the  im plied lim itation is subject 
to lim its, in view  of the  contract and due process clauses. 
In  Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 
43 S. Ct. 158, there w as a b ill in  equity  to enjoin th e  
Pennsylvania Coal Company from  m aking operations under 
plaintiff’s property  in such a w ay as to rem ove the  sup­
ports and cause a subsidence of the  surface and of plaintiff ’s 
house. The deed conveyed the  surface b u t in  express term s 
reserved the righ t to rem ove all the coal under the same 
and the grantee took the prem ises w ith  the  risk  and 
w aived all claims for damages th a t m ight have arisen 
from  m ining out the  coal. The plaintiffs asserted th a t 
w hatever m ay have been le ft of the com pany’s rights w ere 
taken  aw ay by the  K ohler A ct which forbade the m ining of 
an thracite  coal in such w ay as to cause the  subsidence of, 
among other things, any s truc tu re  used as a hum an hab ita­
tion w ith  certa in  exceptions. The rights of the  public in 
a  stree t purchased or laid out by em inent domain are  
those th a t it has paid  for. The protection of p rivate  prop­
erty  in  the  F ifth  A m endm ent presupposes th a t it is w anted 
for public use, bu t provides th a t it shall no t be taken for 
such use w ithout compensation. A sim ilar assum ption is 
m ade in  the  decisions upon the F ourteen th  Amendm ent. 
Hairston v. Danville & Western Ry. Co., 208 U.S. 598, 605, 
28 S. Ct. 331. 52 L. Ed. 637. W hen this seemingly absolute 
protection is found to be  qualified by  the  police power, 
the  n a tu ra l tendency of hum an na tu re  is to extend the  
qualification m ore and m ore un til a t last p riva te  p roperty  
disappears. B ut th a t cannot be  accomplished in  this w ay 
under the  C onstitution of the  U nited States.



18

The general ru le  a t least is th a t w hile property  m ay be 
regulated  to a certain  extent, if regulation goes too far, it 
w ill be recognized as a taking. We are in danger of for­
getting  th a t a strong public desire to im prove the  public 
condition is not enough to w arran t achieving the  desire by 
a shorter out than  the constitutional w ay of paying for the 
change.”

Panhandle Eastern Pipe Line Co. v. State Highway Com­
mission of Kansas, 294 U.S. 613, 55 S. Ct. 563, held:

“ * * * pr ivate  righ t of w ay is ‘easem ent’ and ‘land’, 
and hence state  highw ay commission’s order directing 
pipe line company transporting  n a tu ra l gas in  both  in­
te rs ta te  and in trasta te  commerce to remove, lower, or 
in case pipe and telephone lines w here new  highw ays 
would cross com pany’s righ t of w ay would take  p rivate  
p roperty  for public use, S ta te  S tatu te, construed as 
authorizing commission’s o rder w ithou t compensation 
to company, denies due process,”

For the  aforegoing reason w e subm it th a t A rticle 16, Sec­
tion 120, is unconstitutional for the  reason th a t it violates 
both A rticle I, Section 10 of the  U nited S tates Constitution 
and the  Due Process Clause of the  14th A m endm ent of the 
Constitution of the  U nited S tates in th a t it takes p rivate  
property  w ithout D ue Process of Law.

III.
DID T H E  CHANCELLOR ERR IN T H E  IN STAN T CASES IN RE­

FUSING TO STRIK E O U T TH E DECREE PRO CONFESSO AND TH E 
FINAL DECREES IN V IEW  OF A PPELLAN TS’ ALLEGATIONS AND 
PR O O F T H A T  SAID DECREES W ERE ENTERED IN V IOLA TION  OF 
T H E  DUE PROCESS CLAUSE O F T H E  FO U R TEEN TH  AMENDMENT 
TO  T H E  CO N STITU TIO N  O F T H E  UNITED ST A T E S?

The Chancellor errored  in the  instan t cases in refusing 
to strike ou t the Decree P ro  Confesso and  the final decree 
in  view  of A ppellants’ allegation and proof th a t said de­
crees w ere entered in violation of the Due Process Clause 
of the  14th A m endm ent of the  Constitution of the U nited 
States.



19

I t  is a requirem ent of due process of law  under the  Four­
teen th  A m endm ent of the Constitution of the  U nited S tates 
th a t w here a p roperty  ow ner is a resident of th e  S ta te  w here 
th e  p roperty  is situate, th a t a property  ow ner m ust be given 
a  notice of even a condem nation proceeding by  public 
officials. W alker v. City of Hutchinson, 352 U.S. 118, 77 S. 
Ct. 200; Lambert v. People of State of California, 78 S. Ct. 
240; Shelley v. Kraemer, 68 S. Ct. 836; Griffin v. Griffin, 
66 S. Ct. 975; Mullane v. Central Hanover Bank & Trust 
Co., 339 U.S. 306, 70 S. Ct. 652.

In  the  Hutchinson case the  C ourt re itera ted  the  ru le  it 
sta ted  in the  Mullane case, th a t adequate notice under the 
D ue Process Clause, if feasible, m ust be reasonably calcu­
la ted  to inform  parties of proceedings w hich m ay directly  
and  adversely affect the ir legally protected  interests. See 
also Conney v. Town of Somers, 351 U.S. 141, 76 S. Ct. 724; 
and  City of New York v. New' York N. H. & H. R. Co., 344 
U.S. 293, 73 S. Ct. 299.

The Suprem e C ourt of the U nited S tates stated in the 
Hutchinson case, supra,

“M easured by the principles stated  in  th e  M ullane 
case, supra, w e th ink  th a t the  notice by  publication 
here falls short of the requirem ents of due process. 
I t  is common knowledge th a t m ere new spaper publi­
cation ra re ly  inform s a landow ner of proceedings 
against his property. In  M ullane w e pointed out m any 
of the infirm ities of such notice and em phasized the 
advantage of some kind of personal notice to in terest 
parties. In  the  present case there  seems to be no com­
pelling lor even persuasive reasons w hy such direct 
notice cannot be given. A ppellant’s nam e w as know n 
to the  city, and was on the official records. Even a 
le tte r  would have apprised him  th a t his p roperty  was 
about to be taken and th a t he m ust appear if he w anted 
to be heard  as to its value.”

The order of publication in the instan t cases did not m eet 
th e  requirem ents set fo rth  in Fade 180, sections (a),  (b)



20

and (c) of the M aryland Rules of P ractice and Procedure. 
The defendants had  in  th e ir possession the  nam es of ap­
proxim ately  fou r hundred  persons w ho w ere buried  in  th e  
cem etery; they could easily have obtained th e  nam es and 
n ex t of kin of these persons from  the  public records found 
in  the  H ealth  D epartm ent; they  could fu rth er have easily 
found the address or the  last know n addresses iof these 
persons from  said records. They only alleged the defendants 
w ith  very  few  exceptions and in vague term s in the  Bill of 
Com plaint and O rder of Publication in  McKamer Realty 
Company v. Anderson Enterprises, Inc. We therefore con­
tend  th e  caption of the Bill of Com plaint and O rder of 
Publication was too vague and uncertain  and therefore, 
did not m eet the  requirem ents of Rule 180; M aryland Rules 
of P ractice and Procedure, Michie Code, 1957 Edition.

The C ourt of A ppeals in  Hardester v. Charretts, 84 Md. 
146, 34 A. 1122, stated  th a t a S ta tu te  providing fo r construc­
tive service by publication m ust be s tric tly  complied w ith; 
and w here a b ill was filed against the  unknow n heirs of 
the  children of Benjam in H ardester, deceased, and the 
order of publication notified and w arned th e  children 
of A braham  H ardester to  appear, the notice was fata lly  de­
fective. N either was Rule 104 of th e  Rule governing M ary­
land procedure complied w ith  by these defendants in the  
condem nation su it in  this Court.

A rticle 16, Section 120 violates th e  Due Process Clause 
of the  14th A m endm ent for the reason th a t the  S ta tu te  pro­
vides for taking of p rivate  property  for p rivate  use by order 
of publication alone w ithout com pensation and does not 
provide for personal service on M aryland Residence.

Mr. M ercaldo and Mr. K aufm an had personal knowledge 
in  the ir possession of the  names and location of some of 
the  lot owners who are  m em bers of the  class represented 
by com plainants in the  in stan t cases b u t neither took any



21

steps to notify personally any of them  even by a le tte r or 
otherw ise of the proceeding pending against them. Both 
Mr. M ercaldo and Mr. K aufm an w ere officials of th e  corpo­
ra tion  and therefore th e ir knowledge is im puted to the  
M cKam er R ealty  Co., Inc. Therefore failu re  of plaintiffs 
in the M cKamer Case, Docket a t 87A, Folio 878 in  the 
C ircuit Court of B altim ore C ity to notify plaintiffs or any 
m em bers of the  class represented  by  plaintiffs in the 
instan t cases v itiated  the  proceedings in  the McKamer case, 
see City of Hutchinson, supra.

IV.
W ERE T H E  DECREE PRO  CONFESSO AND T H E  SUBSEQUENT 

FINAL DECREE AS AFORESAID  PURE NULLITIES IN T H A T  A R T I­
CLE 16, SECTIO N  120 O F  TH E ANN OTATED  CODE OF TH E STA TE 
O F MARYLAND IS IN V IOLA TION  O F A RTICLE III, SECTIO N  29 
O F T H E  CO N STITU TIO N  OF T H E  ST A T E  O F M ARYLAND?

A rticle 16, Section 120, A nnotated Code of M aryland 
introduced into the G eneral Assem bly of M aryland as 
House Bill 594 and enacted as C hapter 630 of th e  Laws of 
M aryland, 1957 Edition is unconstitutional in th a t the title  
to such Act is m isleading by apparently  lim iting the  act 
to  a m uch narrow er scope than  the  body of th e  Act is m ade 
to encompass. ( See Luman v. Hitchens Bros, 90 Md. 14, 44 
Atl. 1051, 46 L.R.A. 393).

Title to Bill Set F orth

The title  to House Bill 594, enacted as C hapter 630 of the 
Laws of M aryland, 1957 Edition reads, in full, as follows:

An  Act to  add a new  section to A rticle 16 of the  Anno­
ta ted  Code of M aryland (1951 Edition), title  
“Chancery”, sub-title “Jurisd iction”, said new  section 
to be know n as 124A and to follow im m ediately a fte r 
Section 124 of said A rticle 16, providing for the  sale 
and  disposition of cem eteries or bu ria l grounds in 
Baltim ore City under certain  conditions for which 
provision has not been made for the perpetual care 
an a  m aintenance thereof and w hich have been



22

abandoned or are  a menace or detrim ental to the public 
health, safety, security  or w elfare; providing for the  
use and d istribution of funds which m ay be derived 
from  the  sale of any such cem eteries or burial grounds, 
and  providing for th e  transfer and conveyance of title  
to the  purchasers of any such cem eteries or burial 
grounds sold under th e  provisions of this Act, and  re ­
lating generally  to the sale and disposition of certain  
cem eteries or burial grounds in Baltim ore C ity under 
certain  conditions.

The leading M aryland case covering the  subject of the  
unconstitu tionality  of S ta tu tes based on defective titles 
to A cts is Painter v. M attfeldt, 119 Md. 466, 87 A. 413, w hich 
case com prehensively sets fo rth  the  rules governing the 
subject. Since this decision, a long line of M aryland de­
cisions have reaffirm ed the rules set fo rth  in  th e  Painter 
v. M attfeldt case and the  principles announced there in  
w ithout any suggestion of deviation from  its broad doc­
trines.

In  the  Painter case, supra, the  facts w ere th a t the Acts of 
1912, C hapter 345, en titled  “An Act to provide for a Com­
m ission to be know n as th e  good roads Commission of B alti­
m ore County, w ith  full pow ers to  construct and im prove a 
system  of public roads, and providing the ways and m eans 
for the  construction thereof by a bond issue.” Section 1 of 
said Act provided for the  O rganization of the Commission 
and for the paym ent of the ir salaries by th e  County Com­
m issioners out of the  general road and bridge fund of the 
County, w hile Section 3 required  the  Commission to expend 
the  funds derived from  the  sale of bonds in  the various elec­
tion districts of the  County and  to em ploy all necessary 
attorneys and assistants for the  prom otion of any of the 
work. O ther Sections provided for the  condem nation of 
land and for the  bringing of actions by and against the 
Commission for the paym ent of judgm ent against the  Com­
mission by the  County Commissioners and for the paym ent



23

of the bond issue by the County. In  th a t case, it was pointed 
out th a t A rticle 3, Section 29 of th e  Constitution of M ary­
land  declares th a t an Act m ay contain b u t one subject which 
shall be  expressed in  its title. The specific title  to the  act 
in  the  Painter case w as as follow s:

“An  A ct to provide for a Commission composed of 
Jam es Rittenhouse, George W. Y ellott and Asa B. 
G ardiner, Jr., to be know n as ‘The Good Roads Com­
mission of Baltim ore County’ w ith  fu ll pow ers to  con­
stru c t and im prove a system  of im proved public roads, 
highw ays and bridges in B altim ore County, M aryland, 
and providing also the ways and m eans for the  con­
struction  and im provem ent thereof by a bond issue 
of $1,500,000, to be a lien upon the  assessable p roperty  
in said county, and repealing C hapter 744 of th e  Acts 
of the  G eneral Assem bly of M aryland, passed a t the 
Session of 1910.”

As indicated above, the body of the  act contained pro­
visions which subjected the  County to a  great and indefinite 
liability  in excess of th e  designated $1,500,000. The C ourt 
held  th a t the T itle to  the  A ct w as “G laringly false, decep­
tive, and m isleading,” and  the  provisions so im properly 
inserted  w ere so in tim ately  and  inseparably connected 
w ith  its m ain purpose th a t the  whole act m ust be declared 
void. The C ourt fu rth er held  th a t the title  to  such act 
did not inform  th e  Taxpayers of the  County th a t they 
w ere to be burdened otherw ise than  by the  bonds, and 
th e  various other provisions m entioned not being germ ane 
to  the  title  b u t being necessary to the purposes of th e  A ct 
m ade such title  and S ta tu te  defective.

D uring the  course of its opinion, the Court pointed out 
tha t; of course, upon its provisions which w e shall presently  
exam ine th e  constitutionality  or unconstitutionality  of 
such Act is dependent. Before exam ining such provisions, 
however, w e shall sta te  some general principles w hich the 
C ourt m ust observe and be guided by in  passing upon the 
constitutionality  of an  Act of the G eneral Assembly.



24

F irst : Every presum ption favors the  validity  of the  
S tatu te; i t  cannot be stricken down as void unless it p lainly 
contravenes some provision of the  Constitution: a reason­
able doubt as to its  constitutionality  is sufficient to sustain 
it; and th e  p a rty  assailing the  A ct m ust po int out the  
special provision of the  Constitution to w hich it is ob­
noxious. “P lena ry  pow er in  the  Legislature for all p u r­
poses of civil governm ent is the rule. A prohibition to 
exercise a particu la r pow er is an  exception.” People v. 
Draper, 15 N.Y. 543; Lewis’ Appeal, 67 Pa. 153. The general 
ru le  upon th is subject is that, except w here the  S ta te  or 
Federal Constitution has imposed lim its upon the  legislative 
power, it m ust be considered as practically  unlim ited; b u t 
this broad pow er appears to be subject, in th is S ta te  to 
some qualifications. Regents, etc. v. Williams, 9 Gill & J. 
408, 31 Am. Dec. 72; Mayor, etc. v. State, 15 Md. 469, 74 Am. 
Dec. 572.

Second: The Constitution apportions the powers of gov­
ernm ent, bu t does not m ake any one of th e  th ree  depart­
m ents subordinate to the  o ther w hen exercising th e  tru s t 
com m itted to it. The Court m ay declare legislative enact­
m ents unconstitutional and void in  some cases, b u t not be­
cause the  Judicial pow er is superior in  degree or dignity 
to the legislative. Being required  to declare w hat th e  law  
is in the  cases w hich come before them, they  m ust enforce 
the  Constitution as th e  param ount law, w henever a  legis­
la tive enactm ent comes in  conflict w ith  it. (Cooley on 
Con. Lim., 3d Ed., 175), or, as said by Chief Justice 
M arshall in  Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60; 
“I t  is em phatically the  province and du ty  of the  Judicial 
D epartm ent to  say w hat the  Law  is. Those who apply 
the  ru le  to  particu lar cases must, of necessity, expound 
and  in terp re t th a t rule. If two laws conflict w ith  each 
other, the  Courts m ust decide on the  operation of each. 
So if a Law  be in opposition to  the  Constitution, if both



25

the  Law and the  Constitution apply to a particu lar case, so 
th a t the Court m ust e ither decide th a t case conformably to 
the  law  disregarding the Constitution, or conformably to 
the  Constitution, disregarding th e  law, the  Court .must 
determ ine w hich of these conflicting rules governs th e  
case. This is the  very  essence of Judicial duty. If then, the 
Courts are to regard  the  Constitution, and th e  Constitution 
is superior to  any ord inary  A ct of the  Legislature, the 
Constitution, and not such ordinary  A ct m ust govern the 
case to w hich they  both  apply. Those, then, who contro­
v e rt the  principle th a t the  Constitution is to be considered 
in Court as th e  param ount law, are reduced to th e  necessity 
of m aintaining th a t C ourts m ust close th e ir eyes on the 
C onstitution and see only the  law. This doctrine would 
subvert the very  foundation of all w ritten  Constitutions. 
I t  w ould declare th a t an  Act, w hich according to the 
principles and theory  of ou r governm ent, is entirely  void 
is yet, in practice, com pletely obligatory. I t  w ould de­
clare that, if the Legislature shall do w hat is expressly for­
bidden, such Act, notw ithstanding the expressed prohi­
bition, is in  reality  effectual. I t  would be giving to the 
Legislature a practical and real omnipotence, w ith  the 
sam e breath  w hich professes to restric t the ir pow ers w ith ­
in  narrow  limits. I t  is prescribing lim its and declaring 
th a t those lim its m ay be passed a t pleasure.”

Third: The Court w ill not declare an  Act unconstitu­
tional because it is unw ise o r inexpedient, nor w ill i t  strike 
i t  down because it w ill operate harsh ly  upon persons af­
fected by it. These are  m atters com m itted to the Judgm ent 
of th e  Law-m aking Power. They are  pu rely  political and 
are not review able by the  Court.

F ourth : Section 29, Art. 3 of the Constitution is M anda­
tory; bu t the  general disposition of the  Court has been to 
give the Section a liberal construction so as not to in terfere  
w ith  or im pede legislative action. The purposes of this



28

provision of the  Constitution are “to prevent the Legisla­
tu re  from  the  enactm ent of laws surreptitiously; to  p re­
ven t ‘Log Rolling’ legislation; to  give the  people general 
notice of the  character of th e  proposed Legislation, so they 
m ay not be misled; to  give all in terested  an  opportunity  to 
appear before com m ittees of the  Legislature and to be 
heard  upon th e  advisability of th e  proposed legislation; to 
advise m em bers of th e  character of the  proposed legislation 
and to give each an  opportunity to  intelligently  w atch the 
course of the  proposed bill; to guard  against fraud  in  legis­
lation and against false and  deceptive titles. These p u r­
poses have been so plainly announced in num erous opinions 
by this Court th a t a statem ent of the  ru le  and the citation 
of cases would seem to be sufficient.” State v. McKinney, 29 
Mont. 375, 74 Pac. 1095, 1 Ann. Cas. 579; Davis v. State, 7 
Md. 160, 61 Am., Dec. 331, Drennen v. Banks, 80! Md. 310, 
30 Atl. 655; Mayor, etc. v. Reitz, 50 Md. 574; County Com­
missioners v. School Commissioners of Worcester County, 
113 Md. 305, 77 Atl. 605.

F ifth  : The title, w hilst it m ust indicate the  subject, need 
not give an  abstract of th e  act, nor need it m ention the 
m eans and m ethods by w hich the general purpose is to be 
accomplished. Catholic Cathedral v. Manning, 72 Md. 116, 
19 Atl. 599; Scharf v. Tasker, 73 Md. 378, 21 Atl. 56; Drennen 
v. Banks, 80 Md. 310, 30 Atl. 655; W hitman v. State, 80 Md. 
410, 31 Atl. 325. B u t “Though the  title  need not contain 
an  abstract of the  bill nor give in  detail the  provisions of 
the  Act, it m ust not he misleading by apparently limiting 
the enactment to a much narrower scope than the body 
of the A ct is made to encompass ” Luman v. Hitchens Bros., 
90 Md. 14, 44 Atl. 1051, 46 L.R.A. 393, and it m ust not be 
such as to d ivert atten tion  from  the  m atters contained 
in  the  body of the Act. State v. Schultz Gas Fixture and 
A rt Metal Co., 83 Md. 58, 34 Atl. 243.



27

W hile this section of the  Constitution has received a 
liberal construction, the Court has not hesitated  to declare 
m any acts invalid which w ere clear infractions of its p u r­
poses. Kafka v. Wilkinson, 99 Md. 238, 57 Atl. 617.

S ix t h : “A S ta tu te  m ay be good in  part, w hile other 
p arts  are  invalid. If a portion be unconstitutional, the  Court 
is not authorized, for th a t reason to declare th e  whole void.” 
Davis v. State, 7 Md. 151, 61 Am. Dec. 331.

A rticle 16, Section 120 of the  A nnotated Code of M ary­
land, 1957 Edition, enacted as C hapter 630 of th e  Laws of 
M aryland, 1957, is unconstitutional and in  violation of the  
Constitution of the  U nited S tates and th e  Constitution of 
th e  S ta te  of M aryland for the  following reason:

1. Defective Title

The Title to such Act is Defective and in Violation 
of Article 3, Section 29 of the Constitution 

of the State of Maryland.
The recorded debates and proceedings of the  several 

Constitutional conventions in  M aryland are  no t sufficiently 
com plete to  give w hat was said, if anyth ing  as to the  need 
fo r im proving th e  quality  of titles to legislative Acts: 
however, the  background conditions have been vividly 
sketched in  a num ber of subsequent cases involves titles, 
so th a t the reasons for adding these title  requirem ents to 
th e  Constitution are  easily apparent. In  1854, ju s t th ree  
years a fte r the  title  provision was first inserted  into the 
M aryland Constitution of 1851, the  M aryland Court of 
Appeals held th a t:

“The object of th is  Constitutional provision is obvi­
ous and highly commendable. A practice had crep t into 
our system of legislation, of engrafting, upon subjects 
of g reat public benefit and im portance, for local or 
selfish purposes, foreign and often pernicious m atters, 
and ra th e r than  endanger the  main subject, or for the 
purpose of securing new  strength  for it, m em bers w ere



28

often induced to sanction and actually  vote for such 
provisions, w hich if they w ere offered as independent 

; subjects, would never have received the ir support. In  
th is way, the  people of our State, have been frequently  
inflicted w ith  evil and injurious legislation. Besides, 
foreign m a tte r has often been stealth ily  incorporated 
into a law, during th e  haste and confusion always in­
cident upon the  close of sessions of all legislative 
bodies, and it has not infrequently  happened, th a t in 
this way, th e  s ta tu te  books have shown th e  existence 
of enactm ents, th a t few  of the  m em bers of th e  legisla­
tu re  knew  anything of before. To rem edy such and 
sim ilar evils, was this provision inserted  into th e  Con­
stitution, and w e th ink  wisely inserted.” Davis v. 
State, 7 Md. 151, 160 (1854).

Essentially the same was said in  another early  case in 
1859:

“I t  cannot be doubted th a t this restric tion upon the 
Legislature was designed to p reven t an evil w hich had 
long prevailed  in th is State, as it had done elsew here: 
which was th e  practice of blending, in the same law, 
subjects not connected w ith  each other, and often en­
tire ly  different. This w as not unfrequen tly  resorted  
to for th e  purpose of obtaining votes, in  support of a 
m easure, w hich could not have been carried  w ithout 
such a device. A nd in  bills of a m ultifarious character, 
no t inappropriately  called omnibus bills, provisions 
w ere sometimes smuggled in and passed, in  th e  h u rry  
of business, tow ard the  close of a session, which if they  
had been presented singly w ould have been rejected .” 
Parkinson v. State, 14 Md. 184, 193 (1859).

Chief Judge Alvey sum m ed it up neatly  in  the  case of 
State v. Norris w hen he stated  tha t:

“The objects designed to be a tta ined  by  the  Constitu­
tional provision are two-fold: The first is to prevent 
th e  com bination in one A ct of several distinct and in­
congruous subjects; and the second is, th a t the  Legis­
la tu re  and the  People of the S ta te  m ay be fa irly  ad­
vised of the  real na tu re  of pending legislation.” State 
v. Norris, 70 Md. 91.



29

In  1948, Judge D elaplaine paraphrased  the  substance of 
w hat w as quoted in  Davis v. State, supra, and  cited th a t 
case in applying the  provisions of Section 29 of A rticle 3 of 
th e  Constitution of M aryland.

In  Miggins v. Mallot, 169 Md. 435, 441 (1936), th e  Court 
of Appeals stated  th a t “The tru e  test, in each case, is 
w hether th e  new  law  is sufficiently explicit to p u t in ter­
ested parties on notice th a t the  th ing  intended to be done 
by  the  Legislature is, in  fact, accomplished.” A nother sta te­
m en t of this idea w as m ade in  Quenstedt v. Wilson, 173 
Md. 11, 22.

G eneral statem ents like the ones referred  to above, and 
variations of them , have been repeated  in literally  dozens 
of cases in  the  M aryland Reports. The principles of con­
stru ing  titles, therefore, are well settled; it is only in  apply­
ing these principles to individual factual situations tha t 
difficulties arise.

There are  th ree  generally used styles for d rafting  titles; 
and  so fa r  as form is concerned, any  one of th e  th ree  is 
valid.

F irst, the  title  m ay contain a general description of w hat 
th e  A ct does, w ithout any reference e ither to A rticle and 
Section num bers in  th e  Code or to prior Acts on th e  same 
subject. Secondly, it m ay contain such references to A rticle 
and  Section num bers, or to a prior Act, together w ith  the 
title  of the  A rticle in the  Code w ithou t any  general de­
scriptive words. Finally, it m ay be a com bination of these 
two, th e  typical exam ple of w hich w ould be a particu lar 
A ct affected and the  title  announces th a t i t  am ends certain 
sections of such article, followed by  a short description of 
w hat is to  be accomplished. The exam ples given below 
have all been considered by the  Court of Appeals of 
M aryland:



30

A. Titles Giving a General Description Only.
The first style of title  describes in  general words w hat 

the  A ct is to do w ithout including any references to  the  
A rticle and Section num bers by  w hich th e  A ct m ay be 
identified in  the  Code. The following is illustrative of such 
titles:

“A n A ct to change th e  nam e of th e  F idelity  Loan and 
T rust Company of B altim ore City, to th e  F idelity  and 
Deposit Company of M aryland, and to am end and de­
fine the  pow ers of said company.” C hapter 263 of the  
A cts of 1890; construed in Gans v. Carter, 77 Md. 1, 
10 (1893).

B. Titles Giving Only a Code Reference.
This style of titles shows how th e  bill is to  fit into the  

Code, such as by nam ing th e  artic le  and subtitle, or be 
referring  to a p rio r A ct of th e  Legislature, b u t except in 
this indirect fashion gives no clue to its subject. Exam ples 
of this form  of title  follows:

“An A ct to repeal sec. 183, A rticle 81, Code of Public 
general Laws of M aryland, title, Revenue and Taxes, 
sub-title, Tax on Mortgages, and to reenact the  same 
w ith  am endm ents.” C hapter 794 of the  Acts of 1906; 
Miller v. Wicomico County, 107 Md. 438, 444 (1908).

also
“An A ct to repeal section 205 of A rticle 93 of the 

Code of Public G eneral Laws (as said section stands 
in  th e  Code of 1904), ti tle  ‘Testam entary  L aw ’, sub­
title  ‘Inventory  and list of D ebts’, so fa r  as said section 
applies to th e  City of Baltim ore; and a new  section to 
A rticle 4 of th e  Code of Public Local Laws, title  ‘C ity 
of B altim ore’, sub-title ‘Register of W ills’, to follow 
section 354 and to be designated as section 354A, Chap­
te r  118 of the  Acts of 1908; Baron v. Sm ith, 108 Md. 317, 
327 (1908).

C. Combination Titles.
This style of titles is th a t w hich tends to combine the 

first first two styles set fo rth  above. I t  gives the  appro­



31

pria te  references to the  Code, and then  adds a general 
description to show w hat the  bill is designed to accomplish. 
A n exam ple of this sty le of form  is as follows:

“A n Act to repeal sections 119, 122, and 123 of Art. 8 
of the  Code of Public Local Laws, title  'Cecil County’, 
sub-title ‘County T reasu rer’, and to reenact the  same 
w ith  am endm ents providing for th e  election of a Trea­
su rer of said county in 1895, and his appointm ent in  the 
m eantim e.” Chapter 25 of the Acts of 1894; Drennan v. 
Banks, 80 Md. 310, 316 (1894).

Most of the  acts now passed by th e  G eneral Assem bly of 
M aryland have titles m ore or less sim ilar to  this form  of 
title ; The D epartm ent of Legislative Reference during the 
past fo rty  years has done m uch to standardize procedure 
in  this respect. In  due respect to th e  excellent standards 
m aintained by such D epartm ent, i t  should be noted here 
th a t C hapter 630 of th e  Laws of 1957 w hich Plaintiffs in 
th e  instan t case contend is invalid due to num erous con­
stitu tional objections including the  contention th a t th e  title  
to such sta tu te  is defective in  violation of A rticle 3 Section 
29 of the  Constitution of M aryland, was not d rafted  in the 
D epartm ent of Legislative Reference. This fac t was testi­
fied to by  the  representative of such D epartm ent in  the 
in stan t case.

The first title  to  a sta tu te  to be declared invalid in  the  
S ta te  of M aryland w as the title  to C hapter 403 of the  Acts 
of 1880, reading as follow s: “A n A ct to  repeal an A ct passed 
a t the  January  Session, 1872, C hapter 363, en titled  ‘An 
A ct to * * *’.” A lthough the  title  said only th a t an  earlier 
s ta tu te  w as to  be repealed, th e  body of such A ct also 
enacted affirmative legislation. The title  was held to  be 
misleading, and th e  A ct was held unconstitutional and void 
insofar as it  attem pted  to  enact affirmative legislation; 
however, the  repeal of the  earlier sta tu te  w as in stric t con­
form ity w ith  the title  and therefore valid. Chapter 403, 
Acts of 1880, Stiefel v. Md. Institution for the Blind, supra.



32

Perhaps the  oddest opinion by the  M aryland C ourt of 
A ppeals regarding the  title  to a s ta tu te  was rendered  in 
the  case of Shea v. State  w hich construed th e  following 
title :

“A n A ct to  repeal and reenact, w ith  am endm ents, 
Sections 332, 333, 334, 336, 339, and 340 of A rticle 3 
of the Code of Public Law s of M aryland, title  ‘B alti­
m ore County,’ sub-title ‘L iquor and Intoxicating 
D rinks,’ as codified by T. Scott Offutt, Esq., regulating 
the  m anufacture and sale of certain  alcoholic and fer­
m ented beverages.”

The T rial C ourt had  held this title  invalid  in th a t it did 
not comply w ith  th e  requirem ents of A rticle 3, Section 29 
of the  Constitution of the S ta te  of M aryland. The C ourt 
of Appeals held this decision to have been correct, w ith  
no discussion as to  reasons. (C hapter 350 of the  Acts of 
1920, Shea v. State, 148 Md. 256, 1925). I t  is impossible to  
judge of the  m erits of th a t case. The appellee’s brief had 
contended the  title  w as m isleading because th e  body of the 
A ct concerned alcoholic beverages w hich had less than  
percent of alcohol by volume, these being declared in  the 
A ct to be “non-intoxicating beverages w ith in  the m eaning 
of the  E ighteenth A m endm ent.”

Since th e  question of percentages is involved in  A rticle 
16, Section 120 it is now  appropriate to  analyze and exam ine 
the title  and body of such Act. Before doing so; however, 
the  history of condem nation as respects Cem eteries in 
M aryland should be referred  to here.

The predecessor to  th e  s ta tu te  involved in  th e  instan t 
case was enacted as C hapter 211 of the  Laws, of M aryland, 
1868, w hich sta tu te  is set fo rth  in fu ll as follow s:

Chapter 211, Laws of 1868
An A ct to add additional sections to  A rticle Sixteen 

of the Code of Public G eneral Laws, en titled  “Chan­
cery,” to come in  a fte r Section Seventy-eight of said 
Article.



33

Section 1. Be it enacted by the  G eneral Assem bly 
of M aryland, th a t the  following sections be added to 
th e  s ix teen th  artic le  of the  Code of Public General 
Laws, en titled  “Chancery,” to  come in  a fte r Section 
Seventy-eight in  said Article. T hat upon any bill filed 
for the  sale of any ground dedicated and used for the  
purposes of burial in  w hich lots have been sold and 
deeds executed or certificates issued to  the  purchasers 
of such lots, provided such lots shall be no longer used 
fo r bu ria l purposes, the  court m ay order notice to  be 
given by publication in one or m ore new spapers 
published in  the  City or county in w hich the  
ground to be sold m ay be situated, stating the  
substance and object of the  said bill, and con­
tain ing the  nam es of th e  original lotholders or 
th e ir  assignees if known, w arning all th e  lotholders, 
w hether they  be residents or non-residents, adults or 
in fan ts to  appear on or before a day fixed in  such order 
and  show cause w hy the  relief p rayed  should not be 
granted, and such notice shall be published as th e  Court 
m ay direct, not. less how ever than  once a  w eek fo r four 
successive weeks, tw o m onths before th e  day fixed by 
such order for th e  appearance of the  parties, and if such 
lotholders shall no t appear a t the  tim e stated  in  such 
notice a commission to take testim ony, th a t it  is neces­
sary  and  w ould be for the  in terest and advantage of the  
parties in terested  th a t the  ground should be sold, m ay 
fo rthw ith  pass a  decree for the  sale of the  same upon 
such term s as it  shall deem  proper, and shall d istribu te  
th e  proceeds of th e  sale among the  parties; in terested  
according to th e ir several in terests as th e  same shall 
be shown to the  court. T hat a decree passed in  a  pro­
ceeding for th e  sale of a burial ground shall be valid 
to  pass the title  to  the  purchaser o r purchasers of the 
sam e or any p a rt thereof free, clear and discharged of 
and  from  th e  claims of th e  Corporation or trustees who 
m ay hold the  same for the  purposes; aforesaid, the ir 
successors or assigns and of all persons in  in terest as 
lotholders; in  such ground w hether they are en titled  as 
original lotholders and w hether they be residents or 
non-residents, adults or infants.



34

Section 2. A nd be it enacted, tha t this A ct shall take 
effect from  th e  date of its passage. A pproved March 
28, 1868.

I t is in teresting  to  note th a t the  above sta tu te  was appli­
cable only w here “such lots shall be no longer used for 
bu ria l purposes,” Also, “T hat after the  re tu rn  of such com­
mission, the  Court, upon being satisfied from  the testim ony, 
th a t it is necessary and w ould be for the in terest and ad­
vantage of the parties in terested  th a t the  ground should 
be sold, m ay fo rthw ith  pass a decree etc. * * Such statu te  
fu rth e r provided th a t the C ourt “shall d istribu te  the  pro­
ceeds of the sale among the parties in terested  according to  
th e ir several in terests as the  same shall be shown to the 
Court.”

The above sta tu te  w as repealed and reenacted by C hapter 
369 of the Laws of 1888 w hich Law  is set forth  in full as 
follow s:

Chapter 369, Laws of 1888 
A n  A ct to repeal chapter tw o hundred  and eleven of 

the Acts of the G eneral A ssem bly of M aryland passed 
a t the  January  Session, eighteen hundred and sixty- 
eight, in  relation to  th e  sale of burial grounds and to 
reenact the  same amended.

Section 1. Be it enacted by the  G eneral Assembly 
of M aryland, th a t C hapter two hundred and eleven of 
the  Acts of th e  G eneral Assembly of M aryland passed 
a t the  Jan u ary  Session, eighteen hundred  and sixty- 
eight, en titled  “A n act to  add additional sections to 
article sixteen of th e  Code of Public G eneral Law s,” 
en titled  “Chancery,” to  come in  a fte r section seventy- 
eight of said article, be and th e  same is hereby repealed 
and reenacted, am ended as follows :

Section 79. T hat in  any  case in  w hich a burial 
ground has ceased to be used for burial purposes, and 
the said ground has been dedicated and used for burial 
purposes, and lots have been sold therein, and deeds 
executed or certificates issued to  purchasers thereof,



35

and it shall be considered desirable to  dispose of said 
bu ria l ground for o ther purposes, upon a bill being 
filed in  any  of th e  C ircuit Courts of the State, in equity, 
in  th e  city  or county in  w hich said bu ria l ground is 
situated, setting  fo rth  th e  aforegoing facts, and  con­
tain ing  th e  names of the lot owners or th e ir  assignees 
so fa r  as known, the  court shall order notice by  publi­
cation in  one or m ore new spapers published in  th e  
county or city w here such buria l ground is: situated, 
w arn ing  all the  lo t holders or o ther persons in  interest, 
residents or non-residents, adults or infants, to  appear 
in  court on or before th e  day fixed in said notice, to 
show cause w hy th e  relief p rayed  for should not be 
granted; and said notice shall be such as th e  court m ay 
direct, not less, however, than  once a  w eek fo r four 
successive weeks tw o m onths before the  day fixed by 
such order for the  appearance of the  parties; and upon 
a  failure of appearance by any of said lo t owners or any 
p a rty  in in terest by th e  tim e lim ited in said notice, the  
court may order testim ony to be taken ex parte , ac­
cording to  the  usual course in  equity  in  cases of de­
fau lt for non-appearance, and upon testim ony taken in  
th e  cause ex parte, or otherwise, if it is m ade to  appear 
to  the  satisfaction of the court th a t it is expedient or 
would be to the  in terest and advantage of th e  parties 
concerned th a t the  said bu ria l ground should be sold, 
the  court m ay fo rthw ith  pass a decree for the  sale of 
said ground upon such term s and notice as: it shall deem 
proper, and  shall d istribu te  the  proceeds of sale among 
th e  parties in terested  according to  th e ir several in ter­
ests, as the  same shall be shown to  the  court; and before 
m aking said distribution the  court m ay order and d i­
rec t th a t so m uch and such p a r t of said proceeds of sale, 
as shall be necessary for the purpose, shall be set aside 
and applied to  the  rem oval and buria l of any dead th a t 
m ay lie  in  said burial ground, in  the  purchase of lot 
in  any cem etery, graveyard, or o ther appropriate place 
of sepulture, and in  the  expense of d isin term ent and 
re in term en t of said dead; and any decree passed in a 
proceeding for a  bu ria l ground, as hereinbefore pro­
vided for, shall be valid  to  pass to  the  purchaser or pur-



38

chasers of said burial ground the title  of the same free, 
clear and discharged of, and from  th e  claim of th e  cor­
poration or trustees who m ay hold th e  same, the ir suc­
cessors or assigns, and of all persons in in terest as lot 
holders in  such ground, w hether they  are en titled  as 
original lotholders, and w hether they  be residents or 
non-residents, adults or infants. (A pproved Apr. 5, 
1888).

The title  of ne ither of the  foregoing s ta tu tes  is presently  
in  dispute; however, it should be noted here th a t C hapter 
369 of the  Acts of 1888, supra, is the  p resen t A rticle 16 Sec­
tion 119 w hich sta tu te  was th e  governing law  p rio r to  the  
enactm ent of A rticle 16 Section 120. I t  is th e  contention of 
Plaintiffs th a t A rticle 16 Section 119 is still the governing 
law  in th a t A rticle 16 Section 120 is unconstitutional and 
void. A rticle 16 Section 119 set fo rth  above contains the  
following provisions th a t should be noted here:

F irst, such sta tu te  had S tate-w ide application;
Second, such sta tu te  is applicable “in  any case in which 

a burial ground has ceased to  be used for burial purposes 
* * * and it shall be considered desirable to dispose of 
said burial ground for other purposes * *

Third, the  legal procedure to be followed in such case is 
by  the filing of a Bill in  Equity.

Fourth , ex p a rte  testim ony m ay be taken as in  usual 
cases, and

Fifth, if it is m ade to appear to the  satisfaction of the 
Court th a t it is expedient or would be to th e  in terest o r 
advantage of the parties concerned th a t the  said burial 
ground should be sold, the  Court m ay fo rthw ith  pass a 
decree for th e  sale of said ground upon such term s and 
notice as it shall deem proper, “and shall d istribu te th e  
proceeds of sale among the parties in terested  according 
to  the ir several interests, as the  same shall be shown to the 
Court.” (Em phasis ad ded ). Such sta tu te  fu rther provides



37

th a t before distribution, the Court m ay order enough set 
aside to defray the  expenses of (a) rem oving and burial 
of any dead still in the cem etery (b) purchasing a lot in  
some o ther burial ground, and (c) the  expenses of rem oval 
or rein term ent. Also, the  purchaser a t any  sale of the  
p roperty  involved gets a  clear title.

Such w as the  state of the  law  governing the  subject 
p rio r to the enactm ent of A rticle 16 Section 120, M aryland 
Code, 1957 Edition.

Chapter 630, Laws of 1957
Inasm uch as House Bill 594, M aryland G eneral Assembly, 

enacted as C hapter 630 of the  Laws of M aryland, 1957, has 
been introduced into evidence in  th e  in stan t case, such 
S ta tu te  w ill not be reproduced here; however, th e re  are  
certain  aspects of the S ta tu te  th a t should be analyzed here;

F irst, the  scope of this s ta tu te  is restric ted  to  cem eteries 
located in Baltim ore City.

Second, in order to come w ith in  the  purview  of the 
statu te , such cem etery m ust have no provision established 
for perpetual care or maintenance.

Third, such cem etery m ust have become a t  least 75% 
abandoned, or a m enace detrim ental to the  public health, 
safety, security  or welfare.

Fourth, the  righ t to take action under the provisions 
of this section is restric ted  to anyone having a property  
rig h t in such burial ground o r any public agency having 
an  in terest in the  elim ination or abatem ent of the  con­
ditions in  such cem etery. On the  surface, this provision 
w ould appear to he  m ore restric tive than  Section 119 of 
A rticle 16 in th a t the  said Section 119 m erely requires th a t 
such burial ground has ceased to be used for burial purposes 
and it shall be considered desirable to dispose of said burial 
ground for o ther purposes. I t  m ight, therefore, appear



38

th a t the title  w ould not have to reflect such a change; how ­
ever, a close argum ent regarding the  description in a title  
was p resen t w hen the  Court of Appeals was review ing 
the  title  to C hapter 75 of the  Acts of 1900, being “A n A ct 
to provide for th e  establishm ent of an electric ligh t p lan t 
in  H agerstown, M aryland.” The contention against th e  
title  was th a t the re  was nothing in  it to show th a t the 
electric ligh t p lan t was to  be established by the M unici­
pality  itself. The T itle was held to be valid; however, in 
the  course of its decision the  C ourt of Appeals used the 
following language, “The w orst th a t can be said about th e  
A ct is th a t the  title  does not specify by whom  the  p lan t is 
to  be constructed; and w hile it does not indicate th a t it was 
to be a m unicipal plant, there also is nothing in the title to 
lead anyone to believe that it was to be established by some 
private corporation.” (Em phasis added.) I t  was fu rth e r 
reasoned th a t the incorporation of electric light companies 
was covered b y  a general law, so th a t the legislature could 
not in  any event have been passing a special act for such an  
incorporation. Therefore, “w ould anyone w ith  the know l­
edge of the  existing law  (and the m em bers of the  Legisla­
tu re  and others are presum ed to  have knowledge of it) 
be mislead into the  belief by th e  w ording of th a t title  th a t 
it was not the  m unicipality  th a t the  au thority  was to be 
given to?” Mealey v. Hagerstown, 92 Md. 741 (1901).

D uring the course of testim ony in  the instan t case, the  
defendants adm it th a t a fictitious purchase of lots in Laurel 
Cem etery was m ade for the purpose lof providing them  w ith  
a nom inal defendant in  th e  Condem nation proceedings. 
Such p a rty  was la te r made nom inal trustee  for purposes 
of th e  sale of such property. D uring th e  course of the  
trial, S tate  Senator Joseph V. Mach testified th a t House 
Bill 594 la te r enacted as C hapter 630 of the Laws of M ary­
land, 1957, was presented and introduced to m em bers of the 
Legislature as a Bill sponsored by  the  Baltim ore City ad­
m inistration and such B ill was eventually  enacted into



39

Law. I t  is the contention of the  Plaintiffs th a t the  uncontra­
dicted testim ony of Senator Mach in  this regard  should 
be given considerable w eight if the question of ascertaining 
th e  legislative in ten t becomes necessary; however, in  view  
of the decisions of th e  C ourt lof Appeals and in view  of the 
fact th a t now here in  the  title  to C hapter 630, Laws of 
M aryland, 1957 does it appear th a t au thority  to  condemn 
cem eteries th a t are  only 75% abandoned is being granted 
to p rivate  individuals or corporations, such S ta tu te  ought 
to be declared defective for th a t reason alone.

In  the  case of N utwell v. Anne Arundel County, the title  
to the A ct w as as follows:

“A n A ct to  add tw o new  sections to A rticle 2 of the  
Code of Public Local Laws, title  ‘A nne A rundel 
County,’ sub-title ‘Roads’ so as to require all owners 
of vehicles using public streets and roads in Anne 
A rundel County to have a license therefor.”

The A ct itself added tw o new  sections, and  requ ired  a 
license on all such vehicles except ox carts, horse carts, 
farm  wagons and m ilk wagons. The Court of Appeals held 
th a t the title  was clearly  misleading, there  being in  it not 
th e  fain test suggestion to lead anyone to suspect th a t the 
exem ptions contained there in  w ere or m ight be  introduced 
in  the  law, and  fu rth e r held th a t inasm uch as this exem p­
tion fea tu re  w as one of th e  essential p arts  of the  law, and 
w as no doubt inserted  to secure its passage, the  whole 
law  should be declared void. Nutwell v. Anne Arundel 
Co., 110 Md. 667.

In  the  instan t case, C hapter 630 of the  Laws of M aryland, 
1957 w as enacted in  four sections. Section 1 contains the 
body of the  Act; Section 2 repeals all inconsistant laws; 
Section 3 provides for the continued existence of all parts  
of such A ct not judicially declared to be invalid; and 
Section 4 makes such Act become effective as of Ju n e  1, 
1957. I t  is in teresting to note th a t except for a provision



40

protecting the  rights of those deed holders of record as 
disclosed by the  Land Records of Baltim ore City im ­
m ediately p rio r to th e  sale of such cem etery or bu ria l 
ground, now here in  the S ta tu te  is there  a savings clause 
excluding and protecting from  th e  operation of th e  S ta tu te  
the  rights of lo t owners th a t have become vested  p rio r 
to  the  effective date of the  S tatu te. I t  is the  contention of 
Plaintiffs th a t Section 2 of such S ta tu te  should, in some 
m anner, have been reflected in the  title  to such S tatu te. 
One w ay in  w hich this could have been accomplished would 
have been a repeal and reenactm ent w ith  A m endm ents of 
C hapter 369, Laws of 1888 in the  same m anner th a t the 
said C hapter 369 recited a Repeal and Reenactm ent, w ith  
A m endm ents of C hapter 211 of the  Laws of 1868. If such 
procedure had been followed in the case of C hapter 630, 
Law s of 1957, the  title  to such A ct m ight be valid, b u t the 
Act would still be unconstitutional for o ther reasons cited 
herein.

F ifth , th e  action to condemn such cem etery m ust be 
commenced in an  Equity  Court of Baltim ore C ity by a 
Bill of Com plaint w hich Bill of Com plaint m ust set forth  
the nam es of lot ow ners or th e ir assignees so far as known. 
There is no substantial change in  this provision and the  
provision of the  p rio r S ta tu te  as relates to Baltim ore City.

Sixth, the only notice requ ired  by such S ta tu te  is (a) 
O rder of Publication, or (b) Posting on the premises, in 
the discretion of the  Court. This provision fu rth er provided 
th a t such O rder of Publication m ust w arn  all Lot owners or 
o ther persons in  in terest to appear in  C ourt by a certain  
day and show cause w hy such cem etery should not be 
condemn. In  the  instan t case notice w as given by O rder 
of Publication, only.

Seventh, the  sta tu te  fu rth e r provides for taking ex parte  
testim ony. I t  fu rth e r provides th a t upon th e  taking of 
such testim ony, if it should appear to the  satisfaction of



41

the  Court th a t (a) all or m ore than  75% of the  cem etery 
has become (1) abandoned, or (2) a menace, or (3) detri­
m ental to the  public health , safety, security, or welfare, 
the  C ourt m ay pass a decree ordering th e  sale of th e  land, 
all lots, and any other in terest in  such land, and appoint 
a  tru stee  to  do so.

Eighth, under the  term s of such statu te, afte r a sale of 
such land, the  proceeds from  such sale was to be paid out 
for the  following purposes:

(a) To defray the expenses involved in  purchasing a 
lo t in  another cem etery and covering all costs inci­
dental to rem oving and in  re in terring  all bodies th a t 
can be definitely located w ith  reasonable care.

b) In  the  event a lo t is being kept in good condition and 
a m onum ent or m arker is being m aintained in  good 
order and are not damaged but in good condition 
(em phasis added), then  any m oney le ft over from  
th e  proceeding purpose m ay be used to defray such 
expenses.

c) A ny funds rem aining a fte r the  above would be ap­
plied to the  expense of rem oving and reerecting on 
the  new  location m onum ents or m arkers th a t can be 
definitely identified w ith  a body or bodies removed.

d) Funds still rem aining would then  be applied to 
th e  abatem ent of all existing conditions th a t consti­
tu te  a menace or are detrim ental to the  public health, 
safety, security, o r w elfare unless the  contract to 
sell such cem etery provides for such abatem ent.

e) The sta tu te  then  provides th a t “A fter any and all 
expenses incurred  for or in  connection w ith  doing 
any  and  all of th e  things m entioned in  or contem­
plated  by the  first four items hereof, and the  cost of 
conducting the necessary legal proceedings, including 
court costs, tru stees’ commissions and legal fees, 
and  all taxes, if any, have been paid in full, then



42

1 the  balance of the proceeds of sale rem aining in the  
: hands of the  tru stee  shall be paid  over to  the  legal 

en tity  w ho had record title  to such cem etery or 
bu ria l ground in its entirety , subject to the burial 
rights which had, been granted therein as disclosed 
by the Land Records of Baltimore City, immediately 
prior to the sale of such cemetery or burial ground 
by the said trustee as hereinbefore provided, free, 
clear and discharged of, and from, any and all claims 
of any lot ow ners or o ther persons in in terest in such 
cem etery or burial grond or th e  land or p roperty  
contained therein, regardless of w hether they m ay 
be en titled  as original lo t owners or heirs or as­
signees and regardless of w hether they  are  resi­
dents, nonresidents, adults, infants or other persons 
under any legal incapacity.” (Em phasis added.)

The section of the  s ta tu te  quoted in sub-paragraph (e) 
above is invalid  for a num ber of reasons. In  the  first place, 
the  underlined clause above, as has been previously re­
ferred  to, constitutes th e  only savings clause in  the  en tire  
s ta tu te  th a t adequately protects existing vested rights. In  
the  second place, such clause w hen view ed in  ligh t of the 
s ta tu te  as a whole and particu larly  Section 2 of said statu te, 
constitutes a repeal of p arts  of another s ta tu te  th a t is 
now here referred  to  in either the  title  or the  body of Chap­
te r 630, Law s of 1957; namely,

“A  certificate under th e  seal of the  cem etery or 
m ausoleum  corporation or of any person or corporation 
acting as trustee  therefor, of the ow nership of any lo t 
o r crypt, sold or conveyed as aforesaid, shall in  all 
respects have th e  same effect as any  conveyance for 
such corporation of said lot or cryp t w ould have if 
executed, acknowledged or recorded as conveyances of 
rea l estate are by the  law s of th is S ta te  requ ired  to be.” 
Maryland Code, Art. 23 Sec. 165.



43

The above defect constitutes a  second reason why plain­
tiffs contend th a t A rticle 16 Section 119 should have been 
repealed and reenacted, w ith  am endm ents in  order to  avoid 
a  title  defect. There is no reference to  a repeal or an  am end­
m en t to  any portion of A rticle 23 Section 165 in  the  title  
to  C hapter 630 of th e  laws of 1957; indeed, no reference to  
a  repeal of any section of any statute is evident in the  title  
to C hapter 630. Law s of 1957.

In  approaching th e  above problems, the  C ourt is faced 
w ith  tw o choices; F irst, it m ay declare sub-paragraph (e),  
supra, to be valid. If  it should do so, then, in  accordance 
w ith  Section 2 of C hapter 630, the  Court m ust fu rth e r de­
clare a repeal of A rticle 23 Section 165 as it relates to  
cem eteries in  th e  City of Baltim ore for w hich no provision 
fo r perpetual care and m aintenance has been provided, and 
w here a t least 75% of such cem etery has become aban­
doned, or a menace, etc., and w here such cem etery is sought 
to  be condemned pursuan t to A rticle 16 Section 120'. Ob­
viously,' th is course is fraugh t w ith  difficulties involving 
im pairm ent of the  obligations of contracts, equal protection 
of the laws, due process of law, defective titles, and nu­
m erous o ther constitutional safeguards; secondly, the  C ourt 
m ay declare sub-paragraph (e),  supra, or o ther portions of 
the  s ta tu te  to  be invalid. If this course is adopted, th e  Court 
should fu rth e r ru le  th a t all holders of deeds under th e  seal 
of the Laurel Cem etery Company are  still th e  ow ners of 
such lots and, fu rther, th a t the ir grave righ ts ex tend  not 
m erely to  th e ir individual lots evidenced by such deeds bu t 
as easem ents to th e  paths and  roadw ays in  said cem etery 
providing egress and ingress to such lots; th a t th e ir indi­
v idual lots constitute the  dom inant estate while the o ther 
land  constitutes the  serv ien t estate. P laintiffs urge the  C ourt 
to  adopt the  second choice as the correct statem ent of the 
law. Plaintiffs are  m indful of the  m yriad of problem s in­



44

volved In condem nation cases involving cem eteries and 
respectfully  urge th a t “W here abandonm ent for cem etery 
purposes results in  the  taking of p a r t of the lands by reason 
of condem nation proceedings, the  certificate holders, if any 
certificates are outstanding, have a righ t to paym ent of 
the ir proportions of the  award. Whitmore v. Woodlawn 
Cemetery, 71 App. Div. 257, 75 N.Y. Supp. 847; M atter of 
Bensel, 129 N.Y. Supp, 682, 144 App. Div. 751.

“I t  is ordinarily  the  fee of land th a t is taken, though 
th e  pow er of em inent dom ain m ay be exercised to  take 
an  easem ent. I t  is obvious, however, th a t as a  m a tte r of 
bu ria l law  no o ther use of land is com patible w ith  its 
devotion to the burial use. Consequently, though an 
easem ent ra th e r than  a fee be taken, th e  value of th e  
fee for burial use is as thoroughly destroyed as if the 
absolute fee w ere taken, and com pensation w ill neces­
sarily  en tail paym ent for the  value of th e  fee * * *” “In  
com puting value for a  particu la r use, no t only m ust 
th e  availability for such use be determ ined bu t the  
probability  of sale for such special use m ust be con­
sidered. Matter of Simmons, 130 App. Div. 356, 359, 114 
N.Y. Supp. 575.

“ * * * W here a burial righ t has been sold by the  
cem etery prior to  condemnation, it is the lot ow ner 
who suffers by the  taking, since th e  value of the fee 
rem aining in  the  cem etery corporation a fte r the sale 
of the  burial righ t is bu t nominal. The lot ow ner who 
purchased from  the  cem etery a lot for use for burial 
purposes, upon being deprived of its use as a  resu lt of 
th e  taking in  condem nation proceedings, m ay claim 
dam age on a basis of square foot value. T hat was the  
basis on which he bought th e  lot from  the cem etery; 
th a t was the basis on w hich he paid  the  cem etery for 
it; and th a t is the basis w hich determ ines its  value to 
him. The basic ru le  of condemnation, th a t the  con- 
dem nee m ust be m ade whole, dem ands such a conclu­
sion. ‘The proper pecuniary  value of a cem etery may, 
however, be enhanced by  its religious accessories and 
particu larly  by its position in  a churchyard * * * any­



45

thing, w hether real or im aginary, w hich renders land 
m ore desirable as a  place of interm ent, necessarily 
adds to  its  pecuniary value.’ Report of Ruggles, (N .Y .) 
4 Bradf. Surr. 503, 512. The square foot un it valuation 
is m ore susceptible of use here than  it is in  the cases 
w here it is generally applied, i.e,, in the condem nation 
of City lots, Matter of N.Y.W. & B.R. Co., 73 Misc. 219, 
230, 130 N.Y. Supp. 1005, since here, except in special 
cases, each square foot of land w ith in  the lo t has the 
sam e value as each other. T here is no appreciation 
in  burial lots; by reason of frontage values or short lot 
rules. “The Law of Cadaviers” by Percival E. Jackson, 
New York, Prentice-Hall, Inc., “1Q?6 Edition.”

The above quotations are subm itted  by  P laintiffs in  sup­
p o rt of th e ir contention regarding the  character of the  
in terest they hold in  the  Cemetery.

Plaintiffs also point out the  defect on the title  to House 
B ill 594 as introduced into evidence. The title  to  such Bill 
as shown on th e  outside cover contains th e  clause “for 
w hich provision has been m ade for the  perpetual care and 
m aintenance thereof * * *” The title  to' such Bill as listed 
on the inside page and as shown in the  bound volum e of the  
Law s of M aryland, 1957, recite th a t the  act refers to  burial 
grounds “* * * for w hich provision has not been m ade for 
th e  perpetual care and m aintenance thereof * * *”

Plaintiffs are  w ell aw are of the  fact th a t the  above m ight 
m erely have been, a typographical e rro r on th e  outside 
cover; however, since such Bills are often read  by  and 
through the ir titles; only, the  cover of such B ill th a t appears 
to  contain such erro r was m isleading and presented a 
“false” situation to anyone who m ight have read it. The 
e rro r involved is of no small consequence inasm uch as the 
presence of the w ord “not” brings Laurel Cem etery w ith in  
th e  purview  of th e  Act; w hereas, the  absence of the w ord 
“no t” would tend to exclude Laurel Cem etery from  the 
purview  of the statute. Plaintiffs therefore contend th a t 
th is constituted another factor th a t was highly misleading.



46

V.
A RE TH E A PPELLANTS ENTITLED TO  H AV E T H E  DECREE OF 

T H E  COURT IN T H E  CASE OF M cK A M E R  R E A L T Y  C O M P A N Y  v. 
A N D E R S O N  E N T E R P R IS E S , IN C O R P O R A T E D , E T  AL.,  97A, FOLIO 
878, SE T  A SIDE IN V IE W  O F T H E  PROOFS PRESEN TED  T H A T  
SU CH  DECREE W AS OBTAINED BY FRAUD UPON T H E  C O U R T ?

49 C.J.S. 269 a t page 488 reads as follows:
“F raud  practiced on the  C ourt is always ground for 

vacating the Judgm ent, as w here the C ourt is deceived 
or m isled as to  m aterial circumstances, or its process 
is abused, resu lting  in  the  rendition of a judgm ent 
w hich would not have been given if the  whole conduct 
of the  case had been fair. So a judgm ent m ay be 
vacated for m isrepresentations or tricks practiced on 
defendant to  keep him  aw ay from  the  trial, or to p re­
v en t h im  from  claim ing his righ ts in  th e  premises, 
or from  setting  u p  an available defense, or fo r fraudu­
len t collusion betw een some of the parties to  the action, 
or betw een th e  counsel in the case, w orking in ju ry  to 
th e  ju s t rights of the  others.”

Indeed this C ourt in  the  case of Graham v. Graham, 59 A. 
2d 180, 190 Md. 434 had this; to say: “F rau d  w ill v itia te  
anything, and if a  Court acts w ithout jurisdiction, its action 
is a nullity, and Equity  dem ands th a t a proceeding not 
heard upon the  m erits be reopened and th e  respondent be 
perm itted  to answ er and defend if taken by  surprise.” In  
th e  instan t cases th e  evidence was clear and uncontradicted 
th a t th e  Com plainants in  the McKamer case had  gone into 
C ourt w ith  a cleverly conceived p lan  to deceive the  C ourt 
into the passage of its Decree. This scheme in the  m ain was 
as follows:

(a) M ake Anderson Enterprises, Inc., a p a rty  defendant 
“for the purpose of having a live defendant” (E„ 367); m ake 
it appear to  the Court th a t A nderson was a genuine party  
a t in terest; and have A nderson testify  th a t he owned cer­
ta in  lots in the  cem etery, w hen in  fact A nderson had no 
in terest w hatsoever in  the  cem etery because his burial



47

rights had  been elevated to a fee by M cKam er’s qu it claim 
deed to A nderson on N ovem ber 18, 1957 (E. 368 and 509 ) 
less than  one m onth before th e  action w as filed in the C ir­
cu it Court.

(b) The continued insistance by Com plainants th a t they 
did not know  how  to  locate any of the lot owners, and th a t 
a thorough and exhaustive search had been made in an 
effort to  locate lo t owners, w hen in  fact Com plainants 
president and counsel in  the  proceedings had, shortly be­
fore filing his Bill of Complaint, held a telephone conversa­
tion w ith  a lo t ow ner and discussed in  some detail the 
sta tus of the  cem etery (E. 409). This same president and 
counsel during the proceedings swore under oath th a t he 
had  m ade a thorough and exhaustive search for lot owners, 
b u t had been unable to locate any of them. Com plainants 
Secretary-Treasurer, John  G. Kaufm an, who also testified 
in  the  proceedings, had fo r m any years been intim ately 
associated w ith  the  cem etery and was personally  ac­
quain ted  w ith  lo t ow ners and other persons who had been 
associated w ith  the cem etery and who could have given 
inform ation as to th e  iden tity  and location of lo t owners. 
Y et this same Secretary-T reasurer kept silence as to  this 
inform ation w hen there  was a duty  upon him  as an  officer 
of Com plainant to  disclose it.

(c) The successful a ttem p t on th e  p a r t of Complainants 
to  m ake it  appear to th e  C ourt th a t the  sale of the cem etery 
w as bona fide w hen in  fact th e  buyer corporation had as 
its  ow ners and officers the  same persons who w ere owners 
and officers; of Com plainant in  the  proceedings (E. 372). 
This fact w as disguised from  th e  C ourt by  the  use of one 
B enjam in J. M artin  for the  purpose of signing the  con­
trac t of sale as president of the purchasing corporation on 
Ju ly  14, 1958 (E. 372), w hen in fact Benjam in J. M artin 
did not become president of the Belair Roads Enterprises,



48

Inc., un til Ju ly  25, 1958. A t the  tim e of the m aking of th is 
contract C lem ent R. M ercaldo was president of the Belair 
Roads Enterprises, Inc., and fu rtherm ore th e  same Clem ent 
R. M ercaldo was president of M cKamer1 R ealty  Company, 
th e  Com plainant in th e  proceedings, and also counsel of 
record for the  same M cKamer R ealty  Company. C lem ent 
R. Mercaldo, as counsel for Complainant, and as an  officer 
of the  C ourt had  a  clear du ty  cast upon him self to disclose 
these facts to  the Court, bu t ra th e r  than  disclose them , he 
actively participated  in  the scheme to w ithhold such facts 
from  th e  Court.

VI.
SHOULD ARTICLE 16, SECTIO N  120 O F T H E  ANN OTATED  CODE 

O F MARYLAND BE DECLARED U N CON STITUTIO NA L TO  T H E  
EXTEN T T H A T  IT  A TTEM PTS TO DELEGATE T H E  POLICE PO W ER  
O F T H E  ST A T E  O F MARYLAND T O  PR IV A T E  INDIVIDUALS?

A rticle 16, Section 120 of the  A nnotated Code of M ary­
land reads in  p a r t :

“ * * * has been abandoned or is or becomes a m enace 
or detrim ental to  the  public health, safety, security  
o r w elfare, anyone having a p roperty  righ t in  such 
cem etery or burial ground or any public agency having 
an in terest in  th e  elim ination o r abatem ent of the  con­
ditions in  such cem etery or burial ground w hich are  
or becomes a  public nuisance shall have the righ t 
to file a Bill of Com plaint in either one of th e  Equity  
Courts of Baltim ore City * * *”

This language clearly gives to those individuals hav­
ing a p roperty  rig h t in  a  cem etery the  rig h t to exercise 
the  police pow er of the  S ta te  of M aryland by  the ir p re ­
tending to pro tect the  health, safety, security  and w elfare 
of the  people of Baltim ore City. I t  is of course well recog­
nized th a t cem eteries by th e ir very  n a tu re  are  an  ap­
propriate subject of legislative control, and to the  ex ten t 
th a t th is s ta tu te  is aim ed a t the  protection of the  w elfare 
of the  citizens of B altim ore City, and vests authority  in  the  
appropriate agencies of B altim ore "City it would be valid,



49

b u t to th e  ex ten t th a t it casts upon private  persons the 
responsibility of m aking the determ ination of w hat is 
good for the  health  and w elfare it is invalid. The Court of 
Appeals of M aryland in the case of Liberto v. Mayor and 
City Council of Baltimore, 23 A. 2d 43, in  discussing the 
police pow er used th is language:

“N either a Legislature or a City Council can by legis­
lation divest itself of the  pow er to protect th e  lives, 
health , morals, com fort and general w elfare of the  
citizens of the  com m unity.”

W hile the Court in th a t case was not dealing w ith  the 
specific problem  here involved, th e  im plication is clear 
th a t the  S ta te  alone is vested w ith  police power, and such 
pow er can only be exercised by appropriate agencies of 
the  state. 16 C.J.S. 178 a t page 913 states: “The police 
pow er of the  state  cannot be delegated to  p riva te  persons.” 
W hile this problem  has not been dealt w ith  by this Court, 
o ther sta te  courts hold em phatically th a t the  police pow er 
cannot be delegated to p rivate  persons, City of Cincinnati 
v. Cook, 140' N.E. 655, 107 Ohio St. 223.

VII.
IS ARTICLE 16, SECTIO N  120 O F TH E A NN OTATED CODE OF 

MARYLAND UNCON STITUTIO NA L FOR TH E REASON T H A T  IT IS 
AN UNREASONABLE DISCRIM INATION A GAINST CEM ETERY LOT 
OW NERS IN BALTIM ORE CITY  IN V IOLA TION  OF T H E  EQUAL 
PR O T E C T IO N  CLAUSE OF TH E FO U R TEEN TH  AMENDMENT TO  
T H E  UNITED STA TES C O N STITU TIO N ?

P rio r to the  passage of this section of the code the law  of 
M aryland had  long been established regarding the  sale of 
cem eteries and un til the  passage of this section th e  rights 
of lot ow ners could not be foreclosed until the  cem etery 
w as abandoned, and this law  righ tly  applied to the en tire  
S ta te  of M aryland. Of course i t  is well recognized th a t a 
sta te  m ay in the  exercise of the  police pow er discrim inate 
betw een localities, bu t it is universally held th a t there  
m ust be some ractional basis for such discrim ination and



50

th a t such discrim ination m ust not be arb itrary . The sta tu te  
here arb itrarily  set aside B altim ore City as th e  object 
of its operation w ithout th e  slightest p re tex t th a t Baltim ore 
C ity presented any different situation w ith  regard  to the 
health  and w elfare of its citizens th a n  any other m unici­
pality  in the  S tate  of M aryland. Indeed th e  expert testi­
m ony a t th e  tria l by Dr. W illiams (E. 98) of the  Baltim ore 
C ity H ealth  D epartm ent, and the  Police Commissioner of 
Baltim ore C ity (E. 123) was to th e  effect th a t B altim ore 
C ity did not p resen t any different situation w ith  regard  
to  the  existance of a cem etery than  any o ther M aryland 
community. This s ta tu te  is fu rth e r discrim inatory for the  
reason th a t it sets up a different form ula fo r th e  distribution 
of the  proceeds tof the  sale of the cem etery thereby  fore­
closing rights of lot ow ners to partic ipate  in  the  proceeds 
of such sale on no o ther ground th a t the  cem etery happens 
to  be located in  B altim ore City.

CONCLUSION
T hat the  D ecree P ro  Confesso and the  final Decree of the 

C ircuit Court of B altim ore C ity in  the  case of McKamer 
Realty Company v. Anderson Enterprises, Inc., et al., 
Docket 97A, Folio 878 should be vacated because obtained 
by fraud  upon th e  C ourt and for the  fu rth e r reason th a t 
D efendants in th a t case w ere not given an opportunity 
to defend the  case upon its m erits so th a t those Defendants 
m ay now file pleas and have the  case heard  upon th e  
m erits, and fu rth e r th a t this C ourt should declare A rticle 
16, Section 120 of the  A nnotated Code of M aryland to be 
unconstitutional for reasons given, and in  such eventuality  
th e  Decrees of the C ircuit Court pu rsuan t to such sta tu te  
should be vacated and the Bill of Com plaint dismissed.

Respectfully subm itted,
TUCKER R. DEARING, JU AN ITA  JACKSON M ITCHELL,
PAUL J. COCKRELL, JU LIU S P. ROBINSON,
W. A. C. HUGHES, JR „ A RC H IE D. W ILLIAM S,

A ttorneys for A ppellants.