The traverser, William Keller, was indicted in the Criminal Court of Baltimore for violating Chapter 160 of the Acts of 1902, entitled An Act to create and establish "the State Board of Undertakers of Maryland," and to prescribe the powers and duties of the said board.
The indictment contained six counts and a demurrer was interposed to each count. The Court below overruled the demurrer as to the first four counts and sustained it as to the fifth and sixth counts.
Subsequently, the traverser filed ten special pleas, and to each plea the State demurred. The demurrer was sustained, and the traverser upon trial pleaded not guilty. He was tried, convicted, and sentenced to pay a fine of ten dollars and costs. From this judgment he has appealed.
The first four counts of the indictment are framed and based upon Chapter 160 of the Acts, and if this Act is a valid exercise of legislative power, the Court below committed no error in overruling the demurrer to these counts, and to the nine pleas.
The offence is clearly and sufficiently set out in the several counts of the indictment, in the language of the Act of 1902, and we find no objection to the sufficiency or validity of the indictment as thus framed, in these four counts.
The fifth and sixth counts are based and founded on Chapter 444 of the Acts of 1910, and it is admitted, that this last named Act is invalid, under the decision of this Court in State v. Rice,115 Md. 317.
It will be seen that Chapter 444 of the Acts of 1910, repealed sec. 8 of Chap. 160 of the Acts of 1902, as amended by Chapter 389 of the Acts of 1904, as amended again by Chapter 496 of the Acts of 1908, and re-enacted the same with amendments.
In State v. Rice, supra, we held that Chapter 496 of the Acts of 1908, and Chapter 389, of the Acts of 1904 amending secs. 7 and 8, of the Acts of 1902, Chapter 160, were unconstitutional and all the amendments to both sections 7 and 8 of the original Act were stricken down.
As it is conceded that Chapter 444 of the Acts of 1910, contains and re-enacts the same invalid provisions as were declared void in Rice's case, the Court below, was right in sustaining the demurrer to these two counts, and declaring Chapter 444 of the Acts of 1910 to be invalid and inoperative.
By section 7, Chapter 160 of the Acts of 1902, it is provided, that 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, shall register with said board on or before the first day of July following.
Section 8 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 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 issue 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 9 provides for the revocation of licenses.
Under section 10 all certificates issued under section 7 and all licenses issued under section 8 expired on the 30th 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 8 should be issued by said board to such applicant.
The first count of the indictment charges, that the traverser did on the 2nd day of December, 1912, unlawfully engage in the business of undertaking in the City of Baltimore without first having registered as required by law, and without having obtained a license to practice the business of undertaking in Baltimore City, as provided by law.
The second count charges that William Keller, the traverser, being then and there an assistant and employee of a certain person then and there engaged in the business of undertaking, to wit, one William Cook, and as such assistant and employee, being then and there a person whose duties
engaged him in the care, preparation, disposition and burial of the dead, unlawfully did then and there engage in the business of undertaking without first having registered with the Secretary of the State Board of Undertakers of Maryland, as required by law, and without first having applied for and obtained from the State Board of Undertakers of Maryland a license to practice the business of undertaking in the State of Maryland.
The third and fourth counts charge a violation of Chapter 160 of the Acts of 1902, and it will be seen, they fully and clearly state the offence as described by the statute and need not be set out, in the opinion.
The demurrer and pleas cover over six pages of the record, but as they present the same question, namely, whether Chapter 160 of the Acts of 1902 is a valid and constitutional exercise of legislative power, they will be considered together.
The real objections to the Act appears to be:
First: Because it creates arbitrary and unreasonable classifications, in that it provides:
(a) That one license shall suffice for all the members of a co-partnership when issued in the firm name;
(b) That assistants and employees of undertakers shall pay the same license fee, and have the same skill and knowledge as the undertakers employing them.
(c) That licenses shall be issued without charge to corporations upon application.
Second: Because its provisions are uncertain and cover occupations outside of the sphere of the police power.
Many of the objections and questions presented in this case are really concluded by cases recently decided by this Court.
In Shehan v. Tanenbaum Son Co., 121 Md. 286, this Court held, that it was competent for the Legislature, to provide that no license shall be issued to permit more than one person or the members of a bona fide co-partnership to act thereunder, in reference to an insurance brokers license. It was also held, that corporations were not included in the use of the word person, as mentioned in that statute.
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The traverser, William Keller, was indicted in the Criminal Court of Baltimore for violating Chapter 160 of the Acts of 1902, entitled An Act to create and establish "the State Board of Undertakers of Maryland," and to prescribe the powers and duties of the said board.
The indictment contained six counts and a demurrer was interposed to each count. The Court below overruled the demurrer as to the first four counts and sustained it as to the fifth and sixth counts.
Subsequently, the traverser filed ten special pleas, and to each plea the State demurred. The demurrer was sustained, and the traverser upon trial pleaded not guilty. He was tried, convicted, and sentenced to pay a fine of ten dollars and costs. From this judgment he has appealed.
The first four counts of the indictment are framed and based upon Chapter 160 of the Acts, and if this Act is a valid exercise of legislative power, the Court below committed no error in overruling the demurrer to these counts, and to the nine pleas.
The offence is clearly and sufficiently set out in the several counts of the indictment, in the language of the Act of 1902, and we find no objection to the sufficiency or validity of the indictment as thus framed, in these four counts.
The fifth and sixth counts are based and founded on Chapter 444 of the Acts of 1910, and it is admitted, that this last named Act is invalid, under the decision of this Court in State v. Rice,115 Md. 317.
It will be seen that Chapter 444 of the Acts of 1910, repealed sec. 8 of Chap. 160 of the Acts of 1902, as amended by Chapter 389 of the Acts of 1904, as amended again by Chapter 496 of the Acts of 1908, and re-enacted the same with amendments.
In State v. Rice, supra, we held that Chapter 496 of the Acts of 1908, and Chapter 389, of the Acts of 1904 amending secs. 7 and 8, of the Acts of 1902, Chapter 160, were unconstitutional and all the amendments to both sections 7 and 8 of the original Act were stricken down.
As it is conceded that Chapter 444 of the Acts of 1910, contains and re-enacts the same invalid provisions as were declared void in Rice's case, the Court below, was right in sustaining the demurrer to these two counts, and declaring Chapter 444 of the Acts of 1910 to be invalid and inoperative.
By section 7, Chapter 160 of the Acts of 1902, it is provided, that 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, shall register with said board on or before the first day of July following.
Section 8 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 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 issue 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 9 provides for the revocation of licenses.
Under section 10 all certificates issued under section 7 and all licenses issued under section 8 expired on the 30th 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 8 should be issued by said board to such applicant.
The first count of the indictment charges, that the traverser did on the 2nd day of December, 1912, unlawfully engage in the business of undertaking in the City of Baltimore without first having registered as required by law, and without having obtained a license to practice the business of undertaking in Baltimore City, as provided by law.
The second count charges that William Keller, the traverser, being then and there an assistant and employee of a certain person then and there engaged in the business of undertaking, to wit, one William Cook, and as such assistant and employee, being then and there a person whose duties
engaged him in the care, preparation, disposition and burial of the dead, unlawfully did then and there engage in the business of undertaking without first having registered with the Secretary of the State Board of Undertakers of Maryland, as required by law, and without first having applied for and obtained from the State Board of Undertakers of Maryland a license to practice the business of undertaking in the State of Maryland.
The third and fourth counts charge a violation of Chapter 160 of the Acts of 1902, and it will be seen, they fully and clearly state the offence as described by the statute and need not be set out, in the opinion.
The demurrer and pleas cover over six pages of the record, but as they present the same question, namely, whether Chapter 160 of the Acts of 1902 is a valid and constitutional exercise of legislative power, they will be considered together.
The real objections to the Act appears to be:
First: Because it creates arbitrary and unreasonable classifications, in that it provides:
(a) That one license shall suffice for all the members of a co-partnership when issued in the firm name;
(b) That assistants and employees of undertakers shall pay the same license fee, and have the same skill and knowledge as the undertakers employing them.
(c) That licenses shall be issued without charge to corporations upon application.
Second: Because its provisions are uncertain and cover occupations outside of the sphere of the police power.
Many of the objections and questions presented in this case are really concluded by cases recently decided by this Court.
In Shehan v. Tanenbaum Son Co., 121 Md. 286, this Court held, that it was competent for the Legislature, to provide that no license shall be issued to permit more than one person or the members of a bona fide co-partnership to act thereunder, in reference to an insurance brokers license. It was also held, that corporations were not included in the use of the word person, as mentioned in that statute.
JUDGE CONSTABLE, in dealing with this question, said:
"The Legislature seems to have wanted to make clear that although they extended the privilege of the license to the members of a bona fide co-partnership they nevertheless intended, when issued to a person, its use was restricted to the use of one person. Corporations necessarily conduct their business through officers and agents. We do not think because the privilege is extended to the members of a co-partnership to do business on one license that it is open to the same criticism, for the Act limits its use to the members of a bona fide co-partnership," * * * and * * * "the use of the license would be confined to the individual members."
The contention upon the part of the appellant, that the Act in question, is unconstitutional because it creates arbitrary and unreasonable classifications, will be seen, upon an examination of the Act, to be without force.
There is no discrimination as between those embraced within a class, and the regulations of the statute operate alike upon all persons and property, under the same circumstances and conditions.
As stated by the learned Attorney-General in his brief, the Act provides for one class embracing corporations, one class embracing partnerships, one class embracing individuals engaged in business for themselves, and one class embracing assistants and helpers.
It is true that under the provisions of the Act, a corporation pays nothing for a license and that one license suffices for a co-partnership, provided it is issued in the firm name, while every individual in order to secure a license must pay the sum of $20.00. Every individual, however, is on a footing of equality, and the opportunity to form a corporation or a co-partnership is open to all. There is, therefore, no discrimination that can fairly be said to be unreasonable or unfair.
In order to secure a license, the same requirements as to knowledge, character and experience are enforced in the
case of each and every applicant, without any exception or qualification whatsoever, irrespective of whether the applicant is an officer or employee of a corporation, a member of a co-partnership or an employee thereof, or an individual in business for himself or an employee of such individual.
The classification provided, by the statute in question, we think, is based upon reasonable grounds, and is founded upon the right of the State, in the exercise of its police power; to regulate and protect the health and general welfare of the community.
In Clark v. Harford Agricultural and Breeders Association,118 Md. 608, we said, the Legislature may under certain conditions, create classes and subject all persons coming within the classification to burdens and duties not imposed upon individuals outside the classes.
This general proposition of law is so well settled that we need only cite a few of the many cases in support of it: Luman v.Hitchens Bros., 90 Md. 25; Cochran v. Preston, 108 Md. 227;Long v. State, 74 Md. 571.
In Singer v. State, 72 Md. 464, JUDGE ROBINSON in dealing with an Act relating to the business of plumbing, said in considering the power of the Legislature to impose restraints upon all persons engaged in certain pursuits, the Supreme Court says: "The nature and extent of the qualifications required must depend primarily upon the judgment of the State as to their necessity. If they are appropriate to the calling or profession and attainable by reasonable application, no objection to their validity can be raised." Dent v. West Virginia, 129 U.S. 114;Storck v. Balto. City, 101 Md. 484; Barbier v. Connolly,113 U.S. 31.
The objections to the eighth section of the Act were disposed of by this Court on the former appeal State v. Rice,115 Md. 327, where we held, that the regulations of the Act were proper under the police power of the State. JUDGE PATTISON, in disposing of the question said: "The requirements that the applicant for a license shall be possessed of
skill and knowledge in undertaking as well as a 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 and contagious disease, are all within the proper exercise of the police power because of their relation to public health."
The case of People v. Ringe, 197 N.Y. 143, was cited with approval, and as it is in point, we quote it here: "Power and authority exist in the Legislature to license and regulate certain vocations notwithstanding provisions of the Federal and State Constitutions, but such power and authority are dependent upon a reasonable necessity for its exercise to protect the health, morals or general welfare of the State. The care of dead human bodies and the disposition of them by burial or otherwise is so closely related to the health and general welfare of a community that the business of caring for and disposing of such bodies may be regulated by license and special regulations under the general police power of the State. The danger that may arise from the body of a person who has died from some infectious, contagious and communicable disease or otherwise, is to some extent obviated by the sanitary regulations of local boards of health; but such regulations are quite inadequate to protect the health and general welfare of a community unless the person who comes into immediate contact with the dead body and upon whose care and skill the public are principally dependent in preventing the spread of infection or contagion and protecting the health, good order and general welfare of a community, is selected with special reference to his skill, knowledge and experience."
Under the statute now before us, and as it now stands, a person is not required in order to secure a license, to qualify as an embalmer. The test relates to knowledge of undertaking, of sanitation, preservation of the dead, and disinfecting the bodies of deceased persons, apartments, clothing and bedding in case of death resulting from infectious or contagious disease.
There can be no doubt, we think, that such requirements bear a close and reasonable relation to the public welfare, and to the preservation of public health. They are in themselves fair and reasonable and impose no restraint which may not be complied with by reasonable experience, and does not violate in any sense the constitutional rights of the traverser.
We have examined the case, with some care, and find that Chapter 160 of the Acts of 1902 is free from the objections urged against it, and as the Act is but the ordinary exercise of the police power of the State the judgment of the Court below will be affirmed.
Judgment affirmed, with costs.
Overruling motion for re-argument.