Herrod v. O'Beirne

Almand, Justice,

dissenting. For two reasons, I dissent from the ruling in the second headnote and the corresponding division of the opinion.

First. The act of 1910 (Ga. L. 1910, p. 130), the act of 1911 (Ga. L. 1911, p. 200), and the act of 1943 (Ga. L. 1943, p. 902), all relate to the same subject matter, and must be construed together. All of these acts impose restrictions upon the use of private property, and have for their purpose the protection of the public health and welfare. Under the acts of 1910 and 1911, a person owning property in the rural territory of Cobb County could not establish a cemetery on his property without first obtaining a permit from the county commissioners. Under the Planning Commission Act of 1943, the Cobb County Planning Commission has the right to establish restricted districts in that county and to enact ordinances prohibiting or regulating certain uses of property located within the zoned districts. Section 9 of the act of 1943, which provides that the act shall not repeal any law now of force restricting the construction and defining the conditions under which cemeteries could be constructed and maintained in the rural areas of Cobb County, does not purport to provide that one could establish a cemetery in a district the use of which is restricted to agricultural and residence purposes, by simply obtaining a permit from the county commissioners; and the zoning of the property for cemetery purposes would not relieve the owner from obtaining a permit from the county commissioners before establishing a cemetery. The acts thus construed together mean that, before a cemetery could be established, (a) the property must be zoned for such use, and (b) a permit must be obtained from the county commissioners.

Second. In my opinion, the acts of 1910 and 1911 violate article I, section IV, paragraph I of the Constitution of 1877 (Code of 1910, § 6391; Code of 1933, § 2-401) and article I, section IV, paragraph II (Code of 1933, § 2-102). The act of 1910 applies only to counties having a population of 125,000 or more. The legislature can make a classification of counties for the purpose of classification by population, but the basis of a classification based upon population must have some reasonable relation to the subject matter of the law, and must furnish some legitimate ground of differentiation. A mere arbitrary classification is not permissible under the Constitution (Stewart v. Anderson, 140 Ga. 31, 78 S. E. 457); and the purpose of the act of 1910 was to prevent the establishment of cemeteries in rural areas of counties having a population of 125,000 or more without the granting of a permit by the county authorities. I am unable to see how the total population of a county has a reasonable relation to the establishment of cemeteries in a rural area. In one county only 10% of the population may live in the rural areas, and 90% in the incorporated areas. In one county the rural area may be populated thickly, and in another, sparsely. The apparent purpose of the law was to prevent the establishment of cemeteries in rural areas, to protect the health and welfare of those living near a proposed cemetery. Such being the case, why wouldn’t a person living in the rural section of a county having a population of 124,499 be entitled to the same protection? I cannot see how the total population of a county can have any reasonable relation to the question of where a cemetery should be established in the rural area of a county.

The act of 1911, which provides in section 1 that, “in all cases where it is now provided by the operation of existing laws that cemeteries . . . can not be established in the rural territory of any county without the permission of the Board of County Commissioners ... it shall be likewise unlawful to establish any such cemetery ... in any adjoining county without the permission” of the person or persons in charge of the county business, is clearly invalid. By its own terms — “That in all cases where it is now provided by the operation of existing laws” — the act limits its operation to those counties which adjoin another county having a population in 1911 of 125.000, and makes no provision for counties that in the future would adjoin counties having a population of 125,000. Furthermore, I can not see any reason for a classification of counties based upon the population of an adjoining county. One adjoining county may have a population of 3,000 and be subject to the law, whereas a county not adjoining may have a population of 124,499 but would not be subject to the act of 1911. The act being a health measure enacted under the police power, making the 1910 act applicable only to counties having a population of 125.000, and the act of 1911 making the 1910 act applicable to all adjoining counties, shows that the act is arbitrary and has no reasonable relation to the subject matter of the law, viz., where cemeteries may be placed in rural areas of a county.

Duckworth, C. J., and Hawkins, J., concur in this dissent.