Ducker, Judge:
The plaintiff, State of West Virginia, instituted this suit against the defendant, Memorial Gardens Develop[183]*183ment Corporation, a West Virginia corporation, in the Circuit Court of Monongalia County, seeking to enjoin the defendant from violating the provisions of Chapter 153 of the Acts of the Legislature of West Virginia, Regular Session, 1955 (Michie’s Code 47-14). Defendant filed its answer and cross bill to which plaintiff demurred. The court overruled plaintiff’s demurrer to defendant’s answer and cross bill, and upon the joint application of the parties certified to this Court for determination the question of the correctness of the decision by the Circuit Court holding in effect that the statute under which the plaintiff seeks relief is invalid and unconstitutional.
The plaintiff in its bill of complaint alleges that the defendant is engaged, among other activities, in the sale of pre-need burial merchandise, interment spaces and services under a form of contract, specifically set out as an exhibit to the bill, in violation of the provisions of Chapter 153 of the Acts of the Legislature' of West Virginia, Regular Session, 1955, by neglecting and refusing to comply with the provisions of said Act by not depositing the money paid to defendant in a bank, trust company or savings and loan association authorized to do business in this state, and that defendant plans to continue in the future so to violate the provisions of that statute.
The provisions of said statute insofar as the same are pertinent to this decision are as follows:
“Section 1. Pre-need Contracts Against Public Policy. — Any agreement, contract or plan requiring the payment of money in a lump sum or installments which is made or entered into with any person, association, partnership, firm or corporation for the final disposition of a dead, human body, or for funeral or burial services, or for the furnishing of personal property or funeral or burial merchandise, wherein the delivery of the personal property or the funeral or burial merchandise or the furnishing of professional services by a funeral director or embalmer is not immediately required, is hereby declared to be against public policy and void, unless all money paid thereunder shall be paid to and held by a [184]*184bank, trust company, or savings and loan association, insured by an agency of the federal government, and which is authorized to do business in this state, and subject to the terms of an agreement for the benefit of the purchaser of said agreement, contract or plan.
“Sec. 2. All money Paid on Pre-need Contracts to be Deposited within Ten Days.- — All such money shall be deposited with such bank, trust company or savings and loan association, within ten days of payment, and shall be held by such bank, trust company or savings and loan association in a separate account in the name of the funeral director, embalmer or supplier of said merchandise and services under said agreement, contract or plan, as trustee for the purchaser until said fund is released as herein provided.
“Sec. 3. Funds Shall Remain on Deposit unless Withdrawn by Purchaser. — All payments made under said agreement, contract or plan and any earnings or interest thereon shall remain with such bank, trust company, or savings and loan association until the death of the person for whose service the funds were paid: Provided, however, That said funds shall be released to the purchaser of the merchandise or services under said agreement, contract or plan, who shall be entitled to receive the same, at any time, upon demand upon said bank, trust company, or savings and loan association, and upon three days notice to the other party to the agreement. The funds deposited shall not be partially withdrawn at any time by the purchaser, but shall be entirely withdrawn, if withdrawn at any time before the completion of the agreement or contract.
“Sec. 4. Payment of Funds by Bank, Trust Company or Savings and Loan Association. — If any balance remains in said account upon the death of the purchaser, the same shall not be paid by such bank, trust company or savings and loan association, to the trustee until the expiration of at least five days after the death of the purchaser for whom such funds were deposited. Such funds shall not be paid by said bank, trust company or savings and loan association until a certified copy of the death certificate of such person shall have been furnished to said bank, trust company or [185]*185savings and loan association. The payment of such funds and accumulated interest pursuant to sections three or four of this article shall relieve the bank, trust company or savings and loan association of any further liability for such funds or interest. Any balance remaining in said fund after payment for the merchandise and services as set forth in said agreement, contract or plan shall inure to the benefit of the estate of the purchaser or undersaid agreement, contract or plan, and shall be paid over to the estate by the trustee, aforesaid.
“Sec. 5. Provisions of this Article Cannot he Waived by Contract. — Any provision of any such agreement or contract whereby a person who1 pays money under or in connection therewith waives any provision of this article shall be void.
“Sec. 6. Article not Applicable to Sale of Lots or Graves. — This article shall not apply to the sale of lots or graves by a cemetery.”
The statute also makes violation of it a misdemeanor and authorizes injunction proceedings to prohibit violations.
The answer and cross bill of the defendant admits the factual allegations in the plaintiff’s bill of complaint to the extent that it has entered into contracts with many persons in the Morgantown area under a plan known as the “Gold Cross Plan,” which contracts are sales on a pre-need basis of interment spaces, burial vaults, memorial markers and certain services in connection with interments, but that it does not contract for caskets or embalming services or the services of a funeral director. And defendant says that it has so engaged in such business in the belief that such statute is invalid and unconstitutional, that it has not and cannot comply with the provisions of said statute relating to the deposit of the proceeds of such contracts in a trust fund as required by said statute, and if so required, it will be compelled to cease doing business. Defendant further says that under its West Virginia corporate charter, it is authorized to own and operate a cemetery and to buy, sell and deal in per[186]*186sonal property and services relating to the final disposition of human bodies; that it has expended more than $150,-000.00 in the development of the Beverly Hills Memorial Park Cemetery at Morgantown, and to insure perpetual care of it, has deposited nearly $100,000.00 in an irrevocable trust in the Farmers’ and Merchants’ Bank of Morgan-town; that by reason of the large scale upon which it does business, it is able to purchase in quantity lots and to sell to the ultimate user materials at a substantially lower price than its competitors could; that it is necessary to employ salesmen at substantial commissions; and that to effect economies in operating overhead, defendant joined with some two hundred other cemeteries located in twenty-two states in a central accounting office in Kansas City, Missouri, and as rapidly as becomes proper under the contracts, individual trust accounts for the purchasers are set up in the City National Bank & Trust Company of that city. And the defendant further alleges that between the time that it commenced sale of Gold Cross Plan contracts in 1954 and the effective date of the statute under consideration in June, 1955, it entered into four hundred and forty-eight individual contracts involving in the aggregate some $98,000.00, of which contracts twenty-three have been completed by deliveries of the merchandise sold; that the defendant has never defaulted, its customers are satisfied, that if by the statute the defendant is required to deposit in trust all of the proceeds of any pre-need contract until a rescission by, or until the death of, the other contracting party, it is impossible for the defendant to continue in business.
The defendant alleges, by way of its cross bill, that the statute hereinbefore set forth is invalid and unconstitutional in that it is a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution in that it sets apart a particular method of transacting a lawful business by a particular group of citizens and imposes upon this group and this method of business restrictions amounting to a prohibition, that the statute is in violation of the due [187]*187process clauses of both the Constitutions of the United States and the State of West Virginia, in that it confiscates not only its property rights but also its freedom of contract, and also impairs the obligation of the contracts made prior to its enactment, and is an ex post facto law attempting to reform pre-existent contracts; and that the statute is an arbitrary confiscation of private property and an unwarranted exercise of the police power of the state. And defendant prays for an injunction and order restraining plaintiff from enforcing the statute.
By the demurrer of the plaintiff to the defendant’s answer and cross bill the plaintiff contends that the statute is not an unwarranted exercise of the police power, is not a taking of property without due process of law, does not impair the obligation or abridge the freedom of contract, is not discriminatory class legislation or an ex post facto law, and is valid and constitutional, and by overruling this demurrer the court held the statute unconstitutional, and certified the single question of its constitutionality for this Court to determine.
As is seen by the allegations of fact in the defendant’s answer and cross bill, necessarily admitted for the purposes herein by plaintiff’s demurrer, there could be separate consideration for the purpose of determining the constitutionality to be given to the validity of contracts or sales made prior to the effective date of the statute, and to contracts or sales made subsequent thereto, but if the enactment so far as it relates to the business of defendant is not within the scope of the police power and therefore invalid, then both classes of contracts are valid.
The statute declares that contracts of the nature of the one involved in the instant case are against public policy and void, apparently for the purported reason that personal property relating to burials sold presently for future delivery might tend to encourage, or lend itself to, fraud on the part of the vendors, or that there might be a failure for one reason or another on the part of the vendors to perform their obligations at the time performance is [188]*188required. There is here no assertion or fact leaving an inference that there has been anything fraudulently done by the defendant.
The plaintiff in its briefs advances the argument: that the legislature can determine what measures are appropriate or needful for the protection of public morals, health and welfare; that an act of the legislature is presumed valid unless invalidity is shown beyond a reasonable doubt; that lawful business which may be so conducted as to become the medium of fraud and dishonesty, may be regulated by the state; and that regulating sales of pre-need burial services and merchandise under contract is a proper exercise of the police power.
The defendant in its briefs advances the argument: that the police power of the state must be exercised within reasonable and constitutional limits; that this statute deprives defendant of its property without due process of law; that this statute discriminates against a particular mode of conducting a legitimate business, and is class legislation denying equal protection of the laws; that it impairs the obligation of private contracts; and that having criminal provisions, it is ex post facto legislation.
Except for the case of Falkner v. Memorial Gardens Association (Texas) 298 S. W. 2d 934, decided by 'the Court of Civil Appeals of Texas on January 23, 1957, and which is based upon a statute quite similar in its provisions to the statute here involved, and in which that Court held that the statute was constitutional, there has not been cited any case specifically deciding the question here presented. In the Falkner case, the Legislature limited the provisions of its statute to the regulation of such business, requiring those desiring to engage in such business to obtain permits from the State Banking Department, which is given supervision of those so engaged. Deposit of all funds so collected was likewise required to be deposited in trust, and the insurance code of the state was made applicable. Although the Texas statute may be termed a regulatory one, it nevertheless has many of the same attributes as the statute here in question.
[189]*189There are numerous cases cited in the briefs of the plaintiff embodying the exercise of the police power within constitutional limitations, and these cases deal in the main with such subjects as insurance or related risk businesses, bulk sales, food distribution or processing, and businesses which specifically involve speculation or hazards not inherent in the ordinary course of trade or business. Insurance, as we know, is based upon the payment by the insured of premiums according to the extent of coverage desired for protection against death, fire or other risk, and consequently mortality tables and risk percentages must be used for the determination of the necessary reserves to be fixed. Bulk sales laws deal with the prevention of fraud on creditors by prohibiting a debtor from selling his whole stock of mechandise upon which ostensibly he has, or could have, obtained credit, without proper notice to his creditors. The laws relating to the sale of food, its processing or distribution are clearly public health measures. The police power also extends to laws which can be otherwise classified as public welfare.
All legislation under the police power must be within the constitutional inhibitions. Milkint v. McNeeley, 113 W. Va. 804, 169 S. E. 790; Eubank v. City of Richmond, 226 U. S. 137. Can the business of the defendant be considered as one relating to public morals, public health or public welfare, subject to the police power and not within the inhibitions of the Constitutions of the United States and the State of West Virginia?
Section 10 of Article III of the Constitution of West Virginia provides that:
“No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers.”
In Lawrence v. Barlow, 77 W. Va. 289, 87 S. E. 380, with supporting cases cited therein, this Court said:
“ ‘The term “liberty” as used in the Constitution is not dwarfed into mere freedom from physical restraint of the person of the citizen as [190]*190by incarceration, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. Liberty, in its broad sense, as understood in this country, means the right not only of freedom from servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation.’ People v. Gillson, 109 N. Y. 398. The above is quoted approvingly in State v. Goodwill, 33 W. Va. 179. ‘A person living under the protection of his government has the right to adopt and follow any lawful industrial pursuit, not injurious to the community, which he may see fit. And, as incident to this, is the right to labor or employ labor, make contracts in respect thereto upon such terms as may be agreed upon by the parties, to enforce all lawful contracts, to sue, and give evidence, and to inherit, purchase, lease, sell, and convey property of every kind-The enjoyment or deprivation of these rights and privileges constitutes the essential distinction between freedom and slavery; between liberty and oppression. These principles have been fully recognized and announced in many decisions of the Supreme Court of the United States, and other courts.’ ”
The Fourteenth Amendment to the Constitution of the United States provides, inter alia, as follows:
“ * * * nor shall any State deprive any person of life, liberty, or property, without due process of law; * * * ”
The interpretation given to this West Virginia Constitutional provision has been likewise given to the Federal Constitutional provision, as has been expressed by the Supreme Court of the United States in the case of Coppage v. Kansas, 236 U. S. 1, 59 L. Ed., 441, in the following language:
“Included in the right of personal liberty and the right of private property, partaking of the [191]*191nature of each, is the right to make contracts for the acquisition of property.”
And, in Baltimore & Ohio Southwestern Railway Co. v. Voigt, 176 U. S. 498, 44 L. Ed. 560, the following was quoted:
“It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider, that you are not lightly to interfere with this freedom ■of contract.”
There is, of course, the distinction between the power of the state to regulate a business and the power to prohibit it, and in many instances the regulation is proper, for the sole reason that the nature of the business is such as will .encourage fraud on the part of those engaged in it, or that fraudulent schemes or dealings are either appurtenant to its operation or so closely allied with it that the public must be protected from its dangers. And while it has been frequently said that the wisdom of the legislature shall determine the subjects coming within the police power, yet that wisdom must yield to the wisdom, as we see it, of the constitution. And so it is necessary to determine whether this class of business is of such a nature as to permit or require regulation or prohibition, or, in other words whether the sale of merchandise or services incidental to burial but not involving the embalming, cremation or other services relating to the actual interment of human bodies, is so different from other sales of merchandise as to which the public needs special protective legislation. Regulatory or prohibitory statutes are not to be based on the incompetency of persons sui juris to buy and sell property or services. Many frauds [192]*192are perpetuated in daily business transactions and redress therefor is civilly and criminally available to the victims. But fraud is not necessarily or reasonably imputable to the business of selling personal property or agreeing to perform services whether at present or in the future. If such were the law, every merchant could be regulated in the simple sale of his goods, and, for example, in so-called “lay-away” sales, where cash or “down” payment on a purchase is made and the seller retains the merchandise for weeks or months until the full purchase price is paid. While it may be true that the defendant’s business is not that simple, yet the quantity or extent of the business conducted, or the time of performance element should not be the criterion by which legality is determined. Nor does the fact that a seller conducts part of his business and has his funds in another state give adequate reason for regulation or inhibition.
The record in this case neither alleges nor shows any fraud on the part of the defendant, but on the contrary, the answer asserts facts which indicate that defendant has a substantially sound business with a large investment in a cemetery with funds for perpetual care provided in an irrevocable trust in this State. Although plaintiff claims that the public dealing with defendant could be defrauded, such possibility should not destroy the right to contract. Fear or suspicion that one will commit fraud or resort to fraudulent practices can be leveled at any one at any time engaged in any lawful business, but we hardly see where that should be the basis for either regulation or prohibition of legitimate business. The state cannot possibly protect all its citizens against possible loss on contracts which parties make. In every contract, the contracting parties must decide for themselves whether the other contracting parties are able or will be able to fulfill the obligation assumed when performance is due. Purchasers of property or services can ascertain, if they so desire, the reputation of the sellers and their financial condition, and if they do not, it is not the fault of the state if any loss to them should ensue. We think that it is inconsistent to [193]*193say that the Constitutions protect citizens in their right to contract and yet restrain them from making contracts such as the type here involved, and which type of contract, other than the classification which the statute here involved attempts to give it, has, so far as this record discloses, no other feature which could classify it as illegal.
Although it may be to some degree popular to enact, and much may be said in favor of, laws protecting the unsuspecting and incompetent in their purchases gullibiy made of property for future delivery and the possibility of vendors failing for one reason or another to deliver, the provisions of the two Constitutions contemplate and provide to all citizens freedom of contract so that any legislative acts passed may not discriminate between kinds or classes of business which are considered legal. State v. Goodwill, 33 W. Va. 179, 10 S. E. 285; Marlow v. Ringer et al., 79 W. Va. 568, 91 S. E. 386; Coal Co. v. Compensation Commissioner, 123 W. Va. 621, 17 S. E. 2d 330. Were it not for the protection thus afforded by the Constitution, any small legitimate business which could not protect itself by the vote of a majority of the legislative bodies could find itself unfairly and unjustly classified as illegal and its contracts void or its business so regulated as to' destroy or impair it by reason of a simple legislative declaration to the effect that it involved a matter affecting the public morals, public health or public welfare. So the reason for the constitutional provisions, the supreme law of the land, is very obvious. It is always unfortunate to some when fair competition seriously affects one’s business, but that alone affords no legitimate reason for the regulation of the competitor. Fair and legal competition is generally more wholesome and beneficial to the public than otherwise, and should not be suppressed by impairing or destructive legislation.
The statute here involved which requires impounding of all purchase money has prohibitory rather than regulatory effect, because no one could without other types [194]*194of business or finances afford to engage in such business which allowed no expenditure of the funds for operational expenses, but a decision on this question, as well as on the questions of impairment of the obligation of contracts and the statute being ex post facto, is unnecessary in view of our holding as hereinafter shown.
In our decision here on the question of the constitutionality of the statute as it applies to the business of the defendant, we do not hold that the business or profession of embalming and the business or profession of funeral directing are not subject to regulation under the police power of the state, as the validity of the regulation of those businesses or professions under the police power has been upheld by this Court in Quesenberry v. Estep, 142 W. Va. 426, 95 S. E. 2d 832.
For the reasons hereinbefore contained, we are of the opinion, and so hold, that the business of the defendant is not such as warrants the enactment by the State, under the police power, of the statute in question, and that Chapter 153 of the Acts of the Legislature, Regular Session, 1955, is unconstitutional to the extent heretofore indicated, and accordingly, we affirm the ruling of the trial court and answer the certified question in the affirmative.
Ruling affirmed.