Gholson v. Engle
| Decision Date | 26 November 1956 |
| Docket Number | No. 33849,33849 |
| Citation | 138 N.E.2d 508,9 Ill.2d 454 |
| Parties | Elmo GHOLSON, Appellee, v. C. Hobart ENGLE, Director of Registration and Education, Appellant. |
| Court | Illinois Supreme Court |
Latham Castle, Atty. Gen. (John L. Davidson, Jr., Mark O. Roberts, and C. Arthur Nebel, Springfield, of counsel), for appellant.
Conger & Goebel, Carmi (Ivan A. Elliott, Jr., Carmi, of counsel), for appellee.
The plaintiff, Elmo Gholson, operates funeral homes in McLeansboro and Dahlgren. He is not a licensed funeral director, and he brought this action to restrain the Director of the Department of Registration and Education from enforcing against him the statute which makes it unlawful to direct funerals without a certificate of registration issued by the Department. His complaint alleged that the statute violates the Federal and State constitutions in many respects. After a trial the circuit court of Hamilton County held the act unconstitutional in its entirety, and the defendant appeals.
Article I of the act regulating funeral directing and embalming (Ill.Rev.Stat.1955, chap. 111 1/2, pars. 73.1-73.10a) deals with funeral directors. Section 2 of that article defines the practice of funeral directing as
Section 4 of article I makes it unlawful to engage in funeral directing without a certificate of registration issued by the Department. To qualify for a certificate an applicant must (a) be at least 21 years of age and a citizen of this State, (b) be of good moral character and temperate habits, (c) be a holder of a certificate of registration as a registered embalmer, and (d) have passed an examination conducted by the Department.
Article II (Ill.Rev.Stat.1955, chap. 111 1/2, pars. 73.11-73.20) deals with embalmers. Section 1 of that article defines the practice of embalming as 'The embalming or representing or holding out oneself as engaged in the business of embalming of dead human bodies or the preparation for transportation of human bodies dead of a contagious or infectious disease.' Section 2 makes it unlawful to practice embalming without a certificate of registration issued by the Department. To qualify for a certificate of registration as an embalmer, section 3 provides that an applicant must (a) be 21 years of age, (b) be of good moral character and temperate habits, (c) have successfully completed one academic year in an approved college or university, (d) have graduated from an approved school of embalming which requires as a prerequisite to graduation the completion of a course of study of at least nine months duration, (e) have studied embalming as a registered apprentice under a registered embalmer for at least one year, (f) have passed an examination conducted by the Department, and (g) be properly protected against communicable diseases. The qualifications for a registered apprentice embalmer are the same except that he need be only 18 years old, and instead of having completed his year of apprenticeship he is required to have entered upon it.
Plaintiff's attack presses most strongly upon the provision that requires a funeral director to be a registered embalmer. That provision is pivotal. Its validity depends upon the interrelation of the activities of the funeral director and the embalmer, and upon the degree to which the activities of both are related to the public health and welfare.
When death occurs, a member of the family of the deceased usually calls the funeral director, who obtains such information as the name and age of the deceased, the name of the attending physician and the cause of death. He makes contractual arrangements for his services, secures the requisite information for newspaper funeral notices and obituaries, ascertains the names of the pallbearers and communicates with them, checks the availability of the officiating minister and the church, and makes arrangements for the burial. He assists in conducting the funeral service, and in moving the coffin to and from the hearse. If the body is to be shipped, he makes the arrangements.
The process of embalming was described by competent witnesses in a degree of detail not necessary here. Basically the process is one of eliminating liquids and gases, and substituting embalming fluid for blood. Cosmetics are applied and restorative work involving the use of wax or other materials may be indicated. Embalming requires the exercise of discretion and judgment by the embalmer. It also requires a degree of special knowledge of anatomy, pathology at death and bacteriology. Where death results from a communicable or contagious disease, special knowledge and understanding are required. Skill is required in the plastic restoration, repair and preservation of human bodies to present as natural and lifelike an appearance as possible.
Whether or not a body will be embalmed and if so by whom, is usually left to the discretion of the funeral director. After a body has been embalmed, the director usually checks it visually or by touch at least twice a day. Conditions sometimes appear which require further attention by the embalmer.
Embalming is not compulsory in Illinois, but the practice has grown in recent years and is now almost universal. Even bodies which are cremated are usually embalmed. Embalming aids in the lifelike preservation of the body. And there is evidence in the record admitting of the construction that the wide acceptance of embalming is also related to the public health, and that the practice has grown, in part, because embalming aids in reducing the spread of disease.
When communicable diseases cause death, precautionary measures are required. The board of health is notified before the body is moved. Sanitary precautions are taken to protect both the embalmer and the funeral director. Private funerals are required when death results from such contagious diseases as bubonic plague, anthrax, psittacosis and cholera.
Two medical witnesses who had extensive experience testified that they did not know of any case where a contagious disease had been transmitted from a corpse to a human being. The possibility of such transmission was, however, admitted. They testified, further, that the danger of transmission would vary from case to case. The record discloses one recorded instance in California in 1926, in which two embalmers became infected with smallpox from embalming a body infected with the disease and became carriers. There was evidence to the effect that bacteria can be isolated and grown in cultures taken from corpses even after embalming.
Plaintiff concedes, and the authorities are clear, that the public interest, and particularly public health considerations, justify regulation of the handling of dead bodies. Prata Undertaking Co. v. State Board of Embalming, 55 R.I. 454, 182 A. 808, 104 A.L.R. 389; State v. Rice, 115 Md. 317, 327, 80 A. 1026, 36 L.R.A.,N.S., 344; Keller v. State, 122 Md. 677, 90 A. 603; Wyeth v. Board of Health, 200 Mass. 474, 86 N.E. 925, ...
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...of a statute bring himself within the class as to whom the law was allegedly unconstitutional); Gholson v. C. Hobart Engle (1956), 9 Ill.2d 454, 461-62, 138 N.E.2d 508 (plaintiff who had not taken an examination was precluded from questioning the constitutionality of statute relating to the......
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...or where the party urging the invalidity of such provision is not in any way aggrieved by its operation.' Also, in Gholson v. Engle, 9 Ill.2d 454, 138 N.E.2d 508, plaintiff was precluded from attacking the examination provisions of an act dealing with the registration of funeral directors w......
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...Care Act could not be attacked by a person who had not applied for the issuance of a license thereunder. Further, in Gholson v. Engle, 9 Ill.2d 454, 138 N.E.2d 508, this court refused to consider the validity of the examination provisions of an act governing the registration of funeral dire......
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McKinley v. Reilly
...the position we have taken here. Of these, two recent cases, because of the similarity of statutes, deserve comment. In Gholson v. Engle, 9 Ill.2d 454, 138 N.E.2d 508, the court 'The record does not, in our opinion, establish that the public health considerations justify the requirement tha......