Louisiana State Board of Embalmers v. Britton

154 So. 2d 389, 244 La. 756, 1963 La. LEXIS 2463
CourtSupreme Court of Louisiana
DecidedJune 4, 1963
Docket46609, 46610
StatusPublished
Cited by10 cases

This text of 154 So. 2d 389 (Louisiana State Board of Embalmers v. Britton) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Louisiana State Board of Embalmers v. Britton, 154 So. 2d 389, 244 La. 756, 1963 La. LEXIS 2463 (La. 1963).

Opinions

SANDERS, Justice.

This appeal presents for decision the constitutionality of LSA-R.S. 37:831 — 37:851, relating to the powers of the Louisiana State Board of Embalmers.

In these consolidated suits, the Louisiana State Board of Embalmers spught injunctions against the defendants restraining them from practicing funeral directing without a license. The defendants answered, attacking the constitutionality of LSA-R.S. 37:831-37:851, the statute under which the Board sought to act, on the grounds that it denied the defendants due process of law in violation of Article I, Se'ction 2 .of, the LSA-Constitution and constituted an unlaw[759]*759ful delegation of legislative power in violation of Article II, Section 2.

The district court declared LSA-R.S. 37:840 and LSA-R.S. 37:842 unconstitutional as an unlawful delegation of legislative power and dismissed the suits. After abandoning a motion for a new trial, the Louisiana State Board of Embalmers appealed.

The Louisiana State Board of Embalmers was first created by Act no. 66 of 1914, which had for its purpose the regulation of embalming and undertaking. The present law on this subject is incorporated in Chapter 10, Title 37 of the Louisiana Revised Statutes of 1950.

The defendants concede, as well they must, that the science of embalming and the business of funeral directing is a proper sphere for the exercise by the state of its police power. The care and burial of the dead are directly related to the public health, safety, and general welfare.

The defendants strenuously contend, however, that the statute fixes no proper standards for the exercise of the discretion vested in the Louisiana State Board of Embalmers. Hence, it constitutes an unlawful delegation of legislative power to the administrative board. As we view it, the contention is a serious one.

Delegations by the Legislature to administrative bodies of the power to administer laws have long been recognized. Such delegations are the product of necessity arising from economic and governmental conditions of increasing complexity.1

It is well settled, however, that the Legislature must establish reasonably clear standards or guides in such a delegation to fulfill constitutional requirements.2 The salutary purpose of these standards is to prevent the abdication by the Legislature of its exclusive law-making power, provide meaningful guidance to the administrative body, inhibit the arbitrary use of authority by that body, and serve as a basis for judicial review.

The pivotal issue in the instant case is whether the Legislature has provided adequate standards in the assailed statute. The resolution of this issue requires a detailed examination of its provisions.

LSA-R.S. 37:832 creates the Louisiana State Board of Embalmers and prescribes its membership.

Section 840 provides:

“The board shall:
[761]*761“(1) Prescribe the qualifications of those who desire to practice the science of embalming or the business of funeral directing, or both in connection with the care and disposition of dead human bodies in this state;
(2) Meet at least once a year or obtener as the proper and efficient discharge of its duties may require;
“(3) Adopt a common seal;
“(4) Prescribe qualifications governing the practice of embalming, the business of funeral directing and the operation of funeral establishments, including the right to make inspections in connection therewith, and shall adopt by-laws, rules and regulations therefor.
“(5) Have authority to appoint an attorney-at-law to represent it in all matters and fix his compensation and define his duties.”

Section 842 further provides:

“A. Every person who desires to practice the science of embalming or to engage in the business of funeral directing, or both, within the state shall:
“(1) Be of good moral character;
“(2) Make a written application to the board for an authorizing certificate;
“(3) File with the application the fee provided in R.S. 37:845; and
“(4) Present himself before the board at a time and place to be fixed by the board.
“B. If the board finds that the applicant possesses adequate knowledge of the science of embalming, sanitation, and disinfection and meets the qualifications prescribed, the board shall issue to the applicant a certificate authorizing him to practice the science of embalming or to engage in the business of funeral directing, or both, as may be the case.
“C. Each establishment operated for the preparation, disposition and care of dead human bodies within this state shall:
“(1) Before beginning business, make written application for, and secure from, the board a certificate authorizing its operation;
“(2) Make payment to the board of the fee required by R.S. 37:845; and
“(3) Furnish such information regarding its qualifications and submit to such inspection as the board may require.
“D. If the board advises that the applying establishment meets the requirements prescribed by the regulations, particularly those relating to personnel, sanitation and disinfection, it shall issue a certificate to the applicant for a [763]*763specific name and location, and should the name or location be changed, the certificate must be amended accordingly, and a charge, equalling the renewal fee paid.
“E. Every certificate issued hereunder shall be signed by the president and secretary of the board and attested by its seal. The board shall register each certificate holder as being duly certified for the purpose covered by the certificate.”

It is clear that the only attribute definitely specified in the statute is that of good moral character. Adequate knowledge of the science of embalming, sanitation, and disinfection can only mean such knowledge as is deemed adequate by the Board. The requirement that the applicant meet the qualifications prescribed refers to the qualifications prescribed by the Board itself. As we view the statute, it delegates to the Board arbitrary power to grant or withhold a license.

The statement of legislative policy in the instant statute falls short of that in the statute regulating marine diving that was stricken in Banjavich v. Louisiana Licensing Board for Marine Divers 3 and that in the statute regulating watch repairing that was invalidated in State v. Morrow.4 Hence, these two decisions control the disposition of this case.

In the Banjavich case, this Court stated:

“It is seen from a reading of Sections 8 and 10 of the law that the Board may prescribe examinations for all applicants ‘ * * * that it deems necessary and proper’ as a prerequisite for the issuing of any license thereunder and may also require the applicant to give physical demonstrations of fitness.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
154 So. 2d 389, 244 La. 756, 1963 La. LEXIS 2463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louisiana-state-board-of-embalmers-v-britton-la-1963.