State v. Rice

Pattison, J., delivered the opinion of the Court. The appellee was indicted in the Circuit Court for Frederick County.under the Act of 1902, Chapter 160, as amended by Chapter 389 of the Acts of 1904, as further amended by Chapter 496 of the Acts of 1908, charged, in effect, with carrying on or conducting the business of undertaking in Frederick County without having first procured a license as required by the said statute and the amendments thereto. The traverser demurred to the indictment, upon the ground that the Act as amended is unconstitutional. The demurrer was sustained and judgment for the traverser was entered ³¹⁹ thereon.

It is from' that judgment of the lower Court that this appeal is taken. Chapter 160 of the Acts of 1902 consists of fourteen sections. The first section provides for the creation of a board to consist of seven members and to be known as the State Board of Undertakers of Maryland. The second section states the required qualifications of its members, the manner and method of their appointment, the filling of vacancies, and the tenure of office.

Section third prescribes the oath to be taken by the members of the board. Sections four and five relate to the organization of the board and the appointment of secretary. Section six regulates the times of meeting and states the number necessary to constitute a quorum. Section seven requires all persons, firms and corporations, and their assistants and employees, as therein ’ provided, engaged in the business of undertaking at the time of the passage of the Act, to register with said board on or before the first day of July following.

Section eight provides that before any person, co-partnership or corporation should, after the passage of the Act, engage in the business of undertaking, and before any member of any such co-partnership, assistant or employee of any such person, co-partnership or corporation, or officer of such corporation whose duties would engage him or her in the care, preparation, disposition or burial of the dead, should discharge the duties of such business, employment or office; and before any of those named in the preceding section (section seven) who were engaged in the said business or employment at the time of the passage of the Act and who failed to register within the time named in the last preceding-section, should continue in said business, they should apply to the board of undertakers for a license to practice such business and employment; and should the board find, upon examination, that the applicant is of good moral character, possessed of skill and knowledge of such business and has a ³²⁰ reasonable knowledge of sanitation, preservation of the dead, disinfecting the bodies of deceased persons, apartments, clothing and bedding, in case of death resulting from infectious or contagious diseases, the board should issue to said applicant, upon the payment of a fee of twenty dollars, a license to practice the business of undertaking. It also provided that licenses should isstfe to corporations when applied for, and that one license should suffice for all the members of a co-partnership when issued in the firm name. Section nine provides for the revocation of licenses. Under section ten all certificates issued under section seven and all licenses issued under section eight expired on the 30 th day of .April next ensuing the date of their issue, and thereafter before any person, co-partnership or corporation then engaged in the business of undertaking, or before any of the assistants, employees, or officers previously designated should continue in such business or employment, application should be made to the board for a license to carry on such business or to engage in the practice thereof, and upon the payment of a fee of five dollars a license similar to the one issued under section eight should be issued by said board to such applicant.

Section eleven provides that all violations of the Act are misdemeanors and provides penalties therefor. Section twelve states the licenses to be non-transferable. Section thirteen provides where the fees and fines shall go and' the purposes for which they shall be used. Section fourteen requires the board to report annually to the Governor of the State, stating what the same shall contain and what disposition shall be made of any funds left in their hands, and in conclusion provides that the Act shall apply only to Baltimore City.

Chapter 389 of the Acts of 1904 repealed and re-enacted only sections one, eight and nine of Chapter 160 of the Acts of 1902. Section one was amended to the extent of increasing the membership of said board from seven to eight. The amendment to section eight requires that the board of exami ³²¹ ners shall upon examination find in addition to what was required of the applicant under section eight of the Acts of 1902, “that he has been employed at least two years prior to said application by some person, firm or corporation actively engaged in the work of practical embalming and undertaking * * * and is possessed of skill and knowledge of the said business/" The amendment to section nine states the character of the testimony and the manner in which it shall be taken by the board in proceedings instituted for the revocation of the license. Chapter 496 of the Acts of 1908 repealed and re-enacted with amendments sections two, five, seven, eleven and fourteen of Chapter 160 of the Acts of 1902, and also repealed and re-enacted with amendments section eight of that Act as amended by Chapter 389 of the Acts of 1904, and enacted two additional sections known as 14 a and 14 b.

The amendment to section two provides for the appointment by the Governor of seven members of the board, of whom at least five shall be residents of Baltimore City and. two residents of the counties. Section five is amended so as to provide for the appointment of inspectors and fixes tlie compensation they are ta> receive. Section seven is amended so as to require all persons, co-partnerships and corporations engaged at the time of the passage of the Act (Chapter 496, Acts of 1908) in the business of undertalcing outside of the Oity of Baltimore, in the State of Maryland, as were designated by section seven, Chapter 160 of the Acts of 1902, to register with the board on or before the first day of July following the passage of the Act of 1908. Section eight is only amended to the extent of requiring the applicant to apply by petition in which he shall state whether he proposes to practice the said business as principal or as an assistant or employee.

Section eleven is amended so as to provide punishment for superintendents of cemeteries and other persons for the commission of the offenses therein named. ³²² Section fourteen is amended by striking out the clause limiting the Act to Baltimore City, and to the extent of including within its provisions the inspectors, the ■ appointment of whom is provided for in section five of this Act. Section 14 a provides that the provisions of the Act shall apply to Baltimore City and to all counties other than those named in that section, and Frederick County is not so named. Section 14 b provides that no member of the board shall be appointed from a county exempt from the provisions of this Act. Sections seven and' 14 a of Chapter 496 of the Acts of 1908 were amended by Chapter 399 of the Acts of 1910.

Section 14 a was amended so as to exempt' from the general Act only the counties of Calvert, St. Mary’s and Charles. Section seven was amended by requiring the registration of those then engaged in the business of undertaking and their assistants and employees, as previously designated, outside of the City of Baltimore and the eight counties which had been brought within the provisions of the said Act of 1908. These Acts of 1910, however, were passed' after the commission of the alleged offense charged against the traverser. FTo objection was made to the formal sufficiency of the indictment; the demurrer only went to the validity of the statute under which the traverser was indicted.

The traverser contending that the statute contravened both the Federal and State constitutions by reason of the burdens and conditions imposed upon him before he could obtain a license permitting him to éngage in the business of undertaking. The burdens or conditions complained of appear in section eight of the Acts of 1904, repealed and re-enacted by Chapter 496 of the Acts of 1908, which are not found in section eight of Chapter 160 of the Acts of 1902, and consist of the additional requirements and qualifications imposed upon and exacted of the applicant, that the board shall find upon due examination “that the applicant has been employed at least two years prior to said1 application by some person, firm or corporation actively engaged in the work of practical embalm ³²³ ing and undertaking * * * and is possessed of skill and knowledge of the said business.” As was said by the learned Court below, “If the Act is a valid exercise of legislative authority it must be upon the ground that the qualifications it exacts for the practice of the vocation with which it deals have a reasonable relation to the public health or welfare.” The Court below, as we gather from its opinion, construed the language of the statute that we have quoted above as meaning that it was necessary that the applicant, before he could obtain the license of undertaker, should be possessed of skill and knowledge in the business of embalming as well as in the business of undertaking. That the words “said business” mean the business of embalming and undertaking, and are not, as contended for by the State, limited in their meaning to the business of undertaking. The contention of the State being that the only additional burden placed upon the applicant by the Acts of 1901 as amended by the Acts of 1908, is the necessity for his employment for two years prior to his application by some person, firm or corporation actively engaged' in thé work of practical embalming and undertaking, and that he is only required to be possessed of skill and knowledge in the business of undertaking; that the words “said business” have reference only to the business of undertaking and that the only use of the word '“embalming” in the Act is in connection with the work in which the applicant must have been engaged, and that the Act does not say that the applicant shall be skilled in said work, but possessed' of skill and knowledge of said business, that is, the business of undertaking, the subj ect-matter of the Act.

This we do not think the meaning of the statute. The applicant is required to be employed for at least two years by a person, firm or corporation not alone engaged in the business of undertaking, but also of embalming. It is fair to assume that the purpose of this requirement is that he should acquire a knowledge of the business of emblaming as well as that of undertaking, and when the statute provides ³²⁴ that “upon examination it is found that the applicant has been employed for two years prior to his application by a person, firm or corporation actively engaged in the work of practical emblaming and undertaking, and is possessed of skill and knowledge in said business,” it would seem that the proper construction of that language would be that they are, upon examination, to find that he has been so employed, for the length of time required, in the work of embalming and undertaking and that he possesses the skill and knowledge of said business—embalming as well as undertaking. It is true that in the original Act the skill and knowledge required were solely confined' to that of undertaking, and that the business of undertaking was frequently referred to therein as “said business,” but upon the introduction into the law,