Commonwealth v. Hanley

• Decision Date: 19 November 1900
• Docket Number: 237-1900
• Citation: 15 Pa.Super. 271
• Parties: Commonwealth v. Hanley
• Court: Pennsylvania Superior Court

15 Pa.Super. 271

Commonwealth v. Hanley

No. 237-1900

Superior Court of Pennsylvania

November 19, 1900

Argued May 23, 1900 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, in suit of Commonwealth of Pennsylvania against Daniel S. Hanley, from judgment of Q. S. Erie Co.-1900, No 12, on verdict of guilty.

Indictment charging practicing the business of undertaking unlawfully. Before Walling, P. J.

It appears from the evidence that defendant, a resident of the city of Erie, took a course of study in anatomy and embalming in Cleveland in the state of Ohio, where he remained for a year or more and where he was actively engaged in the study of his profession both in the college and as assistant to the firm of Hogan & Shearer. After completing his preliminary studies he returned to this commonwealth and asked an opportunity to be examined by the state board of undertakers as provided by the Act of June 7, 1895, P. L. 167. There was evidence on behalf of the commonwealth that under the 2d section of the act of 1895, the board was empowered to make such regulations for the transaction of the business of the board and management of its affairs as they deemed expedient, and that defendant had failed to comply with one of the rules or regulations adopted for application for a license, in that the applicant did not present with his request for examination, the certificate of two undertakers as to the qualifications and fitness, disclosing the time he had been engaged in the undertaking business and the good moral character of the applicant; which application was required to be signed by the parties making the certificate and sworn to. Defendant filed a certificate not sworn to in accordance with the rules adopted by the board, and did not fully comply with the regulations required by the board. It thereupon refused to examine the appellant who, notwithstanding that he had not obtained the certificate or license to carry on the business of undertaking in the city of Erie, proceeded so to do.

The jury found the defendant guilty on the second count of the indictment. Defendant thereupon moved an arrest of judgment, filing the following reasons therefor:

1. The indictment in said case charges no violation of the laws of the commonwealth of Pennsylvania.

2. That the act under which said indictment was drawn and presented is unconstitutional, null and void.

3. That the verdict of the jury was not justified by the evidence produced.

The court below refused the motion in arrest of judgment, filing the following opinion:

The defendant was tried and convicted on an indictment charging him with a violation of the Act of June 7, 1895, P. L. 167, entitled, " An act to provide for the better protection of life and health by diminishing the danger from infectious and contagious diseases through the creation of a state board of undertakers in the cities of the first, second and third classes, with systematic examinations, registration and licenses for all entering the business of burying the dead, and penalties for violation of the provisions thereof." The defendant moves in arrest of judgment on the ground mainly of the alleged unconstitutionality of said act.

It is urged on behalf of defendant that the business of undertaking is a trade, and that the act in question is a local or special law, in violation of that clause in article 3, section 7 of the constitution of Pennsylvania, which provides that the general assembly shall not pass any local or special law regulating labor, trade, mining or manufacturing. In my opinion, the position is not well taken. After some consideration of the question, I have reached the conclusion that it is a general law, as it applies to all the cities of the first, second and third classes in this commonwealth, and is a proper matter for municipal legislation.

The business of an undertaker may in one sense be a trade, but it is not, in my opinion, a trade in such a sense as to be beyond municipal control. The proper preparation and burial of the dead, in cities, directly affects the public health, and therefore, under all the authorities, is a proper subject for municipal legislation. It would seem to be deplorable if on so important a subject the great cities of this commonwealth can have no regulations, except such as are applicable to sparsely settled rural communities. In remote country districts, where there are but few people, it might not be practicable to obtain a licensed undertaker, and yet, the dead there must be buried. But that would seem to afford no reason why the cities of this commonwealth should not have proper regulations as to the preparation and burial of the dead. The act of assembly in question would seem to come properly within the police power of the legislature, as applicable to the classes of cities mentioned.

I desire to refer to but a few of the many authorities bearing upon this question. In Mr. Sanderson's work on Interpretation of Statutes, page 207, we find this statement: " A law relating to a given cemetery, graveyard, or other public ground not of the state, would be local and special, but laws relating to parks, public squares, cemeteries and graveyards in cities, especially with regard to the exercise of police powers over the latter, would relate to municipal affairs." And also on page 208, of the same work, the rule is stated as follows: " Regulation of labor, trade, mining or manufacturing, which is prohibited, probably was not intended to exclude such local and municipal police regulations by boroughs and cities as may be authorized by law to be made by them, and which relate to the safety, health and comfort of thickly settled communities."

In the case of Reeves v. Philadelphia Traction Co., 152 Pa. 153, in reference to this section of the constitution, Justice Mitchell uses the following language: " But under the settled construction of this section, classification of subjects, including cities, is permissible, and legislation which applies alike to all the members of a class is not local or special but general."

The Act of assembly of June 25, 1885, P. L. 187, entitled, " An act regulating the collection of taxes in the several boroughs and townships of this commonwealth" has been held a general law and valid, although it does not apply to any city in the commonwealth: Evans v. Phillipi, 117 Pa. 226.

In delivering the opinion of the court in that case, Justice Clark on page 237, says: " We hold the act of 1885 to be a general law. It is a general law relating to the collection of taxes in the borough and townships of the state; boroughs and townships are created by general laws, and are the proper subjects of appropriate, independent, general legislation, as such; and the act establishes a general system peculiarly adapted to the convenience and necessities of the municipal divisions named, to wit: all the cities of the first, second and third classes in this commonwealth."

So the Act of June 30, 1885, P. L. 250, authorizing boards of health in cities of the first class to regulate house drainage, registration and licensing of master plumbers and the construction of cesspools, has been held valid: Commonwealth v. Lambrecht et al., 3 Pa. C. C. 323.

We also refer to Weinman v. Passenger Railway Co., 118 Pa. 202, Opening of Ruan Street, 132 Pa. 257, City of Scranton v. Whyte, 148 Pa. 419, Perkins v. Philadelphia, 156 Pa. 554, and Sugar Notch Borough, 192 Pa. 349.

In my opinion, the burial of the dead is as proper matter for municipal regulation as the slaughtering of animals, or the collection of garbage, or any other matter affecting the public health or general welfare of the municipality. Such matters are so peculiarly municipal affairs that city charters usually grant the right to the municipality itself to make rules regulating such subjects. For instance, the Act of May 23, 1889, P. L. 277, providing for the incorporation and government of cities of the third class, gives such cities the corporate power to make regulations to secure the general health of the inhabitants, and to remove and prevent nuisances, and also to make all necessary orders and regulations to prevent the introduction of contagious and pestilential diseases in the city, to enact quarantine laws for that purpose and to enforce the same within five miles of the city limits.

The act in question, in my opinion, is a valuable one, and I see no reason for striking it down.

It is also urged on behalf of the defendant, that the state board of undertakers established pursuant to said act, made unreasonable rules, which have prevented the defendant from obtaining a license as an undertaker. If so, it would seem to me that the defendant's proper remedy would be by a writ of mandamus, directed to said board, and not by attempting to practice without a license. For, even admitting that the state board of undertakers has made improper rules, that would not excuse the defendant for violating the act of assembly. A man charged with selling liquor without a license, could not successfully defend on the ground that the court had erroneously refused his application.

And now, April 16, 1900, the motion in arrest of judgment in above case is overruled.

Defendant appealed.

Error assigned was in entering judgment on the verdict and sentencing defendant.

Affirmed.

Jos. P O'Brien, for appellant. -- The defendant has been adjudged a criminal, because he violated an act of assembly which the constitution of the commonwealth specifically forbade said assembly to enact; and because after endeavoring to comply with said unconstitutional enactment, he was debarred from complying with its provisions by the arbitrary and unwarranted action of the officers chosen to...