Brooks v. State Bd. of Funeral Directors and Embalmers, No. 32

CourtCourt of Appeals of Maryland
Writing for the CourtBefore BRUNE; BRUNE
Citation233 Md. 98,195 A.2d 728
PartiesL. Scott BROOKS v. STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS of Maryland.
Docket NumberNo. 32
Decision Date06 December 1963

Page 98

233 Md. 98
195 A.2d 728
L. Scott BROOKS
v.
STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS of Maryland.
No. 32.
Court of Appeals of Maryland.
Dec. 6, 1963.

Page 101

[195 A.2d 729] Richard C. Murray, Towson (Smith & Harrison, Towson, on the brief), for appellant.

R. Randolph Victor, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, PRESCOTT, HORNEY and MARBURY, JJ.

BRUNE, Chief Judge.

The State Board of Funeral Directors and Embalmers (the Board) on April 12, 1962, ordered the suspension of the license of the appellant, L. Scott Brooks as a funeral director, and the next day notified him that it was for one year. Brooks appealed to the Circuit Court for Baltimore County. That Court, in accordance with [195 A.2d 730] an oral opinion delivered after a hearing on January 31, 1963, entered an order on February 21, 1963, affirming the Board's order with a modification (assented to) making it specific that the suspension was for one year. This appeal is from that order. The initial appeal operated as a stay of the Board's order, and we are advised that it is still in effect pending this appeal.

The questions here presented arise out of the provisions of Section 360 of Article 43 of the 1957 Code which permit corporations previously licensed as funeral directors (in 1937 as to some, in 1945 as to others) to continue to engage in the 'business or profession of funeral directing,' sometimes referred to below as the 'undertaking business,' but which prohibit other corporations from doing so.

The appellant makes three contentions: first, that these provisions are invalid and unconstitutional because they bear no

Page 102

substantial relationship to the public, health, safety or welfare; second, that they are invalid because they discriminate between corporations engaged in the business before a certain date and corporations thereafter seeking to enter it; and third, that these provisions do not prevent a corporation from conducting the undertaking business through licensed individuals.

Article 43 of the Code is entitled 'Health,' and one subtitle thereof is headed 'Funeral Directors and Embalmers.' In the 1957 Edition this subtitle consisted of Sections 339-367, and (except as to changes in license fees not here material) remained in force up to June 1, 1962, when a rather general revision of the subtitle took effect. References herein to sections will be to sections of the 1957 Code unless otherwise stated.

Section 360 states that '[t]he provisions of this subtitle shall not be construed as preventing the conducting [of] the business or profession of funeral directing by a corporation heretofore licensed,' if it is registered with the Board and if it complies with such rules and regulations as the Board may prescribe. It prohibits such a corporation from operating any branch not in operation on June 1, 1945. It further states: 'The Board shall not hereafter issue licenses to, nor register any corporation, nor shall any corporation be permitted to conduct the business or profession of funeral directing which has not already been licensed and registered.' This section also contains a proviso derived from Ch. 741 of the Acts of 1945, permitting a corporation to be formed during World War II to take over and carry on (subject to stated conditions) the business of any person licensed as a funeral director or embalmer who may have been inducted into the armed forces of the United States during that war. Both the provision in favor of corporations 'heretofore licensed' and the general prohibitions against new corporations originated in Ch. 503 of the Acts of 1937, and were carried forward in subsequent amendments of the statute. They are the major objects of attack here. From the time when the undertaking business first became the subject of statutory regulation (under Ch. 160 of the Acts of 1902) until the 1937 Act, corporations could obtain licenses as funeral directors.

Page 103

The pertinent facts disclosed by the record may be briefly summarized. Mr. Brooks, the appellant, was duly licensed as an individual as a funeral director and also as an embalmer, holding a separate license for each of these occupations. In August, 1960 (not through his present counsel) he caused to be organized under the general corporation laws of Maryland a corporation known as Brooks Funeral Service, Inc., and on August 10th of that year he wrote the Board a letter requesting the issuance of a license to the corporation as a funeral director. He stated that he was aware of the statute against granting such a license, but contended that the statute was unconstitutional. The Board refused to license the corporation. About January 1, 1962, the corporation, nevertheless, started to carry on the business of a funeral director. Mr. Brooks is the sole stockholder and is [195 A.2d 731] an officer and director of the corporation. All of the employees of the corporation who are active in the conduct of its business (except a woman who does only cleaning or domestic work) are licensed as funeral directors or embalmers, or both. The Board found after a hearing on April 12, 1962, at which Mr. Brooks appeared as a witness and renewed his attack on the statute, that Mr. Brooks had operated the corporation, that it had engaged in the business of a funeral director without a license, and that Mr. Brooks had 'purposely, knowingly, and deliberately operated' the corporation 'for the purpose, among others of testing the validity of * * * Section 360 * * *.' It concluded that, as a matter of law, Mr. Brooks had violated Section 360 and suspended his license pursuant to Section 352(2)(i).

We may comment first on what is stated as the appellant's third contention--that Section 360 does not prohibit a corporation from conducting an undertaking business through licensed individuals. We think that this argument is unsound because it simply ignores the flat prohibition contained in the statute against a corporation not already licensed and registered being 'permitted to conduct the business or profession of funeral directing.' In Dvorine v. Castelberg Jewelry Corp., 170 Md. 661, 185 A. 562, it was held that a corporation which, as a part of its business, sold eyeglasses, was not engaged in the 'practice of optometry,' as then defined by statute, when it employed

Page 104

a registered optometrist, compensated by a salary and by commissions to serve such patrons as the corporation might refer to him. At p. 673 of 170 Md., at p. 567 of 185 A., Judge Offutt said: 'The question is, not whether the Legislature may prohibit a corporation or a lay natural person from furnishing service in a regulated employment through the agency of others, but whether it has done so in this statute, and a mere reading of the statute demonstrates that it has not.' In the instant case, we think that a mere reading of the statute demonstrates that the Legislature has prohibited unlicensed corporations from obtaining a license and from conducting 'the business or profession' of a funeral director without a license. The case of State v. Kindy Optical Co., 216 Iowa 1157, 248, N.W. 332, distinguished in Dvorine seems directly in point here.

It is hardly necessary to add that our holding here does not apply in cases where a statute requires individuals to obtain a license, based upon skill, training or experience, or some combination thereof, in order to engage in some specified occupation and also permits corporations to engage in that occupation. In such instances, the employment by a corporation of duly licensed individuals by whom or under whose direction or supervision the work is to be done, seems not only proper, but necessary. 1

This brings us to consideration of the appellant's contentions that the statute is void as a denial of due process and of the equal protection of the laws.

On the question of due process the appellant contends, among other things, that undertaking is essentially a business, rather than a profession, and he challenges the validity of any regulation of the business which prevents its being conducted in corporate form. We are inclined to agree with the appellant's contention that the occupation is a business, rather than a profession. It was referred to in our statutes, without exception

Page 105

so far as we are advised, as a business from 1902 to 1937, and in Sections 345, 346 and 357 (1957 numbering) down to and including the 1957 Code. The amendment of Section 360 made by Ch. 503 of [195 A.2d 732] the Acts of 1937 introduced the phrase 'business or profession' as applied to the occupation of a funeral director, but that same Chapter spoke consistently of the 'profession' of embalmer. Nothing appears in the record in this case to show what, if any, changes had occurred in the nature of the occupation of a funeral director between 1902 and 1937 to bring about even the equivocal change then made in its characterization in Section 360. It was described by the statutes then involved and was treated by the court as a business in State v. Rice, 115 Md. 317, 80 A. 1026, 36 L.R.A.,N.S., 344 (1911), and in Keller v. State, 122 Md. 677, 90 A. 603 (1914); and it was so referred to in Maryland State Funeral Directors' Assn. v. State Board of Undertakers, 150 Md. 294, 133 A. 62 (1926). See also Grissom v. Van Orsdel, 137 So.2d 246 (Fla.App., 1962); State v. Winneshiek Co-op Burial Assn., 237 Iowa 556, 22 N.W.2d 800, 165 A.L.R. 1092 (1946); and Jackson, Law of Cadavers (2d Ed.), p. 467. We note that Ch. 129 of the Acts of 1962, which revised most of the subtitle of Article 43 of the 1957 Code dealing with Funeral Directors and Embalmers purports to put funeral directing and embalming under a single license and speaks of the 'occupation of funeral director and embalmer.' (Italics supplied.) We shall, for the purposes of this case, but without undertaking to foreclose the...

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15 practice notes
  • Maryland Bd. of Pharmacy v. Sav-A-Lot, Inc., SAV-A-LO
    • United States
    • Court of Appeals of Maryland
    • October 31, 1973
    ...446 (1951) and 37 Brooklyn L.Rev. 617, 622 (1971). We traced the development of this federal-state distinction in Brooks v. State Board, 233 Md. 98, 110-112, 195 A.2d 728 Page 119 Despite the reference to the federal-state dichotomy in Pastor, we disagree with the conclusion drawn from it b......
  • Young v. State, No. 79
    • United States
    • Court of Special Appeals of Maryland
    • March 2, 1972
    ...actually incurred by reason of the statute's operative provisions. See Bell v. State, 236 Md. 356, 204 A.2d 54; Brooks v. State Board, 233 Md. 98, 195 A.2d 728; State v. Kennerly, 204 Md. 412, 104 A.2d 632, 106 A.2d 90; State v. Clifton, 177 Md. 572, 10 A.2d 703; Green v. State, 170 Md. 134......
  • Governor of Maryland v. Exxon Corp., No. 10
    • United States
    • Court of Appeals of Maryland
    • February 18, 1977
    ...& Gravel v. Governor, 266 Md. 358, 293 A.2d 241, cert. denied, 409 U.S. 1040, 93 S.Ct. 525, 34 L.Ed.2d 490 (1972); Brooks v. State Board, 233 Md. 98, 195 A.2d 728 (1963); Allied American, etc., Co. v. Comm'r, 219 Md. 607, 150 A.2d 421 (1959). Recent Supreme Court decisions in this area are ......
  • Brown v. Hovatter, Civil Action No. RDB-06-524.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • October 17, 2007
    ...Brooks appealed the suspension to the Court of Appeals of Maryland in the case of Brooks v. State Board of Funeral Directors and Embalmers, 233 Md. 98, 195 A.2d 728 (1963). The Court of Appeals upheld the corporate prohibition, writing It may at first blush seem strange that the legislature......
  • Request a trial to view additional results
15 cases
  • Maryland Bd. of Pharmacy v. Sav-A-Lot, Inc., SAV-A-LO
    • United States
    • Court of Appeals of Maryland
    • October 31, 1973
    ...446 (1951) and 37 Brooklyn L.Rev. 617, 622 (1971). We traced the development of this federal-state distinction in Brooks v. State Board, 233 Md. 98, 110-112, 195 A.2d 728 Page 119 Despite the reference to the federal-state dichotomy in Pastor, we disagree with the conclusion drawn from it b......
  • Young v. State, No. 79
    • United States
    • Court of Special Appeals of Maryland
    • March 2, 1972
    ...actually incurred by reason of the statute's operative provisions. See Bell v. State, 236 Md. 356, 204 A.2d 54; Brooks v. State Board, 233 Md. 98, 195 A.2d 728; State v. Kennerly, 204 Md. 412, 104 A.2d 632, 106 A.2d 90; State v. Clifton, 177 Md. 572, 10 A.2d 703; Green v. State, 170 Md. 134......
  • Governor of Maryland v. Exxon Corp., No. 10
    • United States
    • Court of Appeals of Maryland
    • February 18, 1977
    ...& Gravel v. Governor, 266 Md. 358, 293 A.2d 241, cert. denied, 409 U.S. 1040, 93 S.Ct. 525, 34 L.Ed.2d 490 (1972); Brooks v. State Board, 233 Md. 98, 195 A.2d 728 (1963); Allied American, etc., Co. v. Comm'r, 219 Md. 607, 150 A.2d 421 (1959). Recent Supreme Court decisions in this area are ......
  • Brown v. Hovatter, Civil Action No. RDB-06-524.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • October 17, 2007
    ...Brooks appealed the suspension to the Court of Appeals of Maryland in the case of Brooks v. State Board of Funeral Directors and Embalmers, 233 Md. 98, 195 A.2d 728 (1963). The Court of Appeals upheld the corporate prohibition, writing It may at first blush seem strange that the legislature......
  • Request a trial to view additional results

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