Harshbarger, Justice:
W. Va. Code, 47-14-2
et
seq.,
designates a recipient of
money paid in advance for funeral-related goods and services, to be a trustee, and requires that such money be deposited in a federally insured bank, trust company or savings and loan association, in a separate account in the name of the trustee, held in trust subject to the terms of the contract by which it is paid; and that the fund may be recaptured by the purchaser.
Appellees, a West Virginia embalmer and funeral director, a funeral home, and a potential customer, sought to determine the Act’s constitutionality in a declaratory judgment action in Kanawha County Circuit Court. The funeral people argued that engaging in business is a fundamental constitutional right and that this law pro
hibits them from doing so; and that portions of W. Va. Code, 30-6-7
and 30-6-14,
do not apply to them, or are unconstitutional.
State v. Memorial Gardens Development Corp.,
148 W.Va. 182, 101 S.E.2d 425 (1957), decided that a predecessor statute to W. Va. Code, 47-14-2 was unconstitutional, an unwarranted exercise of the State’s police power. 148 W.Va. 182, 101 S.E.2d 425, Syllabus Point 1.
We reverse
State v. Memorial Gardens,
because regulation of the funeral business is within the legitimate scope of state police power.
See
F.T.C.,
Funeral Industry Practices: Final Staff Report to the F.T.C. and Proposed Trade Regulation Rule
(16 C.F.R. Part 453) 79-82 (June, 1978).
Laws affecting constitutional rights must satisfy the difficult compelling state interest test.
See Zablocki v. Redhail,
434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (right to marry);
Taylor v. Louisiana,
419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (women cannot be excluded from jury selection);
Skinner v. Oklahoma,
316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (right to individual privacy prevents the State from forcing sterilization of people convicted of two or more felonies involving moral turpitude); Strauder
v. West Virginia,
100 U.S. 303, 25 L.Ed. 664 (1879) (right to have black people in a jury pool).
However, neither this Court nor the United States Supreme Court has ever recognized that a right to pursue one’s business in a certain way is fundamental and that laws affecting that right are subject to strict scrutiny. See
Exxon v. Governor of Maryland,
437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978);
New Orleans v. Dukes,
427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976);
Thorne v. Roush,
164 W.Va. 165, 261 S.E.2d 72 (1979);
Waite v. Civil Service Commission,
161 W.Va. 154, 241 S.E.2d 164 (1977).
See e.g., Jasper v. Commonwealth,
375 S.W.2d 709 (Ky. 1964);
State of Nevada ex rel. List v. AAA Auto Leasing,
93 Nev. 483,
568 P.2d 1230 (1977);
B. Jeselsohn, Inc. v. Atlantic City,
70 N.J. 238, 358 A.2d 797 (1976);
Majestic Industries, Inc. v. J. W. St. Clair,
537 S.W.2d 297 (Tex. Civ. App. 1976);
Steffey v. City of Casper,
357 P.2d 456 (Wyo. 1960),
modified on other grounds,
358 P.2d 951 (1961).
See generally
16 C.J.S.
Constitutional Law,
§ 188 (1956 and 1981 Supp). Instead, regulations about how businesses are conducted need only satisfy the less stringent standard that they bear a rational relationship to a legitimate state goal. W. Va. Code, 47-4-1,
et seq.,
meets this test.
The United States Supreme Court has, since the 1930’s, firmly maintained that it is a function of legislatures to determine the wisdom and utility of economic policy in legislation.
See West Coast Hotel Co. v. Parrish,
300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937);
Nebbia v. New York,
291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934). In
Ferguson v. Skrupa,
372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963), it upheld the constitutionality of a Kansas statute that permitted only lawyers to engage in debt adjustment practice. Justice Black wrote for the majority:
Legislative bodies have broad scope to experiment with economic problems, and this Court does not sit to “subject the State to an intolerable supervision hostile to the basic principles of our Government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to secure.” [Footnote omitted.] It is now settled that States “have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law.” [Footnote omitted.]
Ferguson v. Strupa, supra
372 U.S., at 730-31.
A majority of American jurisdictions agree with us that regulatory legislation such as this neither violates the Constitution nor is beyond the scope of legislative regulatory power. Thirty-two other states have statutes requiring one hundred percent of the payment for a pre-need
contract to be placed in a separate trust.
Twenty-nine states allow a purchaser to withdraw all of his or her payment plus all accrued intérest.
These statutes have generally been upheld.
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Harshbarger, Justice:
W. Va. Code, 47-14-2
et
seq.,
designates a recipient of
money paid in advance for funeral-related goods and services, to be a trustee, and requires that such money be deposited in a federally insured bank, trust company or savings and loan association, in a separate account in the name of the trustee, held in trust subject to the terms of the contract by which it is paid; and that the fund may be recaptured by the purchaser.
Appellees, a West Virginia embalmer and funeral director, a funeral home, and a potential customer, sought to determine the Act’s constitutionality in a declaratory judgment action in Kanawha County Circuit Court. The funeral people argued that engaging in business is a fundamental constitutional right and that this law pro
hibits them from doing so; and that portions of W. Va. Code, 30-6-7
and 30-6-14,
do not apply to them, or are unconstitutional.
State v. Memorial Gardens Development Corp.,
148 W.Va. 182, 101 S.E.2d 425 (1957), decided that a predecessor statute to W. Va. Code, 47-14-2 was unconstitutional, an unwarranted exercise of the State’s police power. 148 W.Va. 182, 101 S.E.2d 425, Syllabus Point 1.
We reverse
State v. Memorial Gardens,
because regulation of the funeral business is within the legitimate scope of state police power.
See
F.T.C.,
Funeral Industry Practices: Final Staff Report to the F.T.C. and Proposed Trade Regulation Rule
(16 C.F.R. Part 453) 79-82 (June, 1978).
Laws affecting constitutional rights must satisfy the difficult compelling state interest test.
See Zablocki v. Redhail,
434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (right to marry);
Taylor v. Louisiana,
419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (women cannot be excluded from jury selection);
Skinner v. Oklahoma,
316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (right to individual privacy prevents the State from forcing sterilization of people convicted of two or more felonies involving moral turpitude); Strauder
v. West Virginia,
100 U.S. 303, 25 L.Ed. 664 (1879) (right to have black people in a jury pool).
However, neither this Court nor the United States Supreme Court has ever recognized that a right to pursue one’s business in a certain way is fundamental and that laws affecting that right are subject to strict scrutiny. See
Exxon v. Governor of Maryland,
437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978);
New Orleans v. Dukes,
427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976);
Thorne v. Roush,
164 W.Va. 165, 261 S.E.2d 72 (1979);
Waite v. Civil Service Commission,
161 W.Va. 154, 241 S.E.2d 164 (1977).
See e.g., Jasper v. Commonwealth,
375 S.W.2d 709 (Ky. 1964);
State of Nevada ex rel. List v. AAA Auto Leasing,
93 Nev. 483,
568 P.2d 1230 (1977);
B. Jeselsohn, Inc. v. Atlantic City,
70 N.J. 238, 358 A.2d 797 (1976);
Majestic Industries, Inc. v. J. W. St. Clair,
537 S.W.2d 297 (Tex. Civ. App. 1976);
Steffey v. City of Casper,
357 P.2d 456 (Wyo. 1960),
modified on other grounds,
358 P.2d 951 (1961).
See generally
16 C.J.S.
Constitutional Law,
§ 188 (1956 and 1981 Supp). Instead, regulations about how businesses are conducted need only satisfy the less stringent standard that they bear a rational relationship to a legitimate state goal. W. Va. Code, 47-4-1,
et seq.,
meets this test.
The United States Supreme Court has, since the 1930’s, firmly maintained that it is a function of legislatures to determine the wisdom and utility of economic policy in legislation.
See West Coast Hotel Co. v. Parrish,
300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937);
Nebbia v. New York,
291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934). In
Ferguson v. Skrupa,
372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963), it upheld the constitutionality of a Kansas statute that permitted only lawyers to engage in debt adjustment practice. Justice Black wrote for the majority:
Legislative bodies have broad scope to experiment with economic problems, and this Court does not sit to “subject the State to an intolerable supervision hostile to the basic principles of our Government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to secure.” [Footnote omitted.] It is now settled that States “have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law.” [Footnote omitted.]
Ferguson v. Strupa, supra
372 U.S., at 730-31.
A majority of American jurisdictions agree with us that regulatory legislation such as this neither violates the Constitution nor is beyond the scope of legislative regulatory power. Thirty-two other states have statutes requiring one hundred percent of the payment for a pre-need
contract to be placed in a separate trust.
Twenty-nine states allow a purchaser to withdraw all of his or her payment plus all accrued intérest.
These statutes have generally been upheld.
See e.g., Reserve Vault Corporation v. Clint Jones,
234 Ark. 1011, 356 S.W.2d 225 (1962);
Messerli v. Monarch Memory Gardens, Inc.,
88 Idaho 88, 397 P.2d 34 (1964);
Memorial Gardens Association, Inc. v. Smith,
16 Ill.2d 116, 156 N.E.2d 587,
appeal dismissed,
361 U.S. 31, 80 S.Ct. 121, 4 L.Ed.2d 98 (1959);
J. M. Falkner v. Memorial Gardens Association, Inc.,
298 S.W.2d 934 (Tex. Civ. App. 1957);
Utah Funeral Directors and Embalmers Association v. Memorial Gardens of the Valley, Inc.,
17 Utah 2d 227, 408 P.2d 190 (1965).
We find no reason to disagree with the Legislature’s pronouncement about the Act’s purposes:
It is hereby determined and declared as a matter of legislative finding (a) that the public has a vital interest in proper disposition of deceased persons; (b) that preneed contracts for furnishing of burial merchandise and services relating to the embalming, cremation or other services associated with the actual interment of dead human bodies, wherein delivery or performance is not immediately required, is a proper subject for the exercise of the police powers of this State; and (c) that the proper exercise of such police powers is regulatory rather than prohibitory.
W. Va. Code, 47-14-1.
This statute does not prohibit appellees’ business in any manner; it simply regulates how a part of the business income will be handled, to' protect the pre-need purchasers of funeral services.
Therefore, we reverse the Circuit Court’s ruling about the constitutionality of W. Va. Code, 47-14-1,
et seq.
Reversed in part; affirmed in part.