Hart v. Bd. of Examiners of Embalmers

• Decision Date: 22 May 1942
• Citation: 129 Conn. 128,26 A.2d 780
• Parties: HART v. BOARD OF EXAMINERS OF EMBALMERS.
• Court: Connecticut Supreme Court

26 A.2d 780

129 Conn. 128

HART

v. BOARD OF EXAMINERS OF EMBALMERS.

Supreme Court of Errors of Connecticut.

May 22, 1942.

Appeal from Superior Court, Fairfield County; Carl Foster, Judge.

Action by Edward H. Hart against the Board of Examiners of Embalmers for a declaratory judgment determining whether a license is required to permit plaintiff to enter the business of funeral director and other questions. From a judgment declaring a license required after trial to the court, plaintiff appeals.

Error, judgment set aside, and case remanded with direction.

Before MALTBIE, C. J, and AVERY, BROWN, JENNINGS, and ELLS, JJ.

Joseph G. Shapiro and James J. A. Daly, both of Bridgeport, for appellant (plaintiff).

Thomas J. Conroy, Asst. Atty. Gen (Francis A. Pallotti, Atty. Gen., on the brief), for appellee (defendant).

JENNINGS, Judge.

This case involves the construction of our statutes defining the rights and duties of the board of examiners of embalmers, hereinafter referred to as the board. The facts are simple and undisputed. On September 16, 1940, the plaintiff applied to the board for a funeral director's license. The board denied the application on September 21, 1940, on the ground that the plaintiff was not a relative coming within the provisions of General Statutes, § 2865, which permits the transfer of the financial interest of an undertaker or embalmer who dies or becomes permanently incapacitated to any persons connected with him by blood or marriage, provided the transferee has applied for and received an undertaker's license. He was also notified that in order to engage in business as a funeral director he must obtain an embalmer's license. By complaint dated October 8, 1940, the plaintiff sought a declaratory judgment asking whether a license was required to permit the plaintiff to enter the business of funeral director, and, in the event that it was required, whether the board should issue it without requiring any qualifications as to embalming, with a claim for additional relief in the way of an order directing the board to issue a funeral director's license to him. After the trial but before judgment, Chapter 325 of the Public Acts of 1941 (General Statutes, Sup.1941, §§ 496f-505f) was enacted and this materially changed the law as to the licensing of funeral directors and embalmers. On these facts the trial court concluded that the board could issue an original funeral director's license only to a relative coming within the provisions of General Statutes, § 2865, that the failure of the plaintiff to qualify in that respect was the sole reason for the denial of his application, that the plaintiff was required to have a license before engaging in the business of funeral director, and that, in order to receive it, he must meet the requirements of the 1941 act. The court did not answer the question whether the board was justified in requiring that an applicant for a license as funeral director should also obtain a license as an embalmer, presumably because it became academic when the action of the board was sustained on the ground stated.

As we view the case, the preliminary question is whether the 1941 act is retrospective in its operation so as to govern the rights of the parties. The application was made on September 16, 1940. The plaintiff claims that his right to receive a license should be determined upon the basis of the law as it stood on that date, no doubt with the intention then to claim that a decision in his favor upon that point would relate back to the time when his application was before the board for action and he would be in a position to take advantage of the provision in § 498f of the 1941 act, that "Each holder of a funeral director's license issued by the board July 1, 1941, shall be entitled to a renewal of such license, without examination, upon application to the board and payment of the prescribed fee." If the change made in the 1941 act affected substantive rights, the law in force when the application was made would govern (Massa v. Nastri, 125 Conn. 144, 147, 3 A.2d 839, 120 A.L.R 939; Loew's Enterprises, Inc., v. International Alliance of T. S. E., 127 Conn. 415, 418, 17 A.2d 525; General Statutes, § 6572), but if the change related to procedural matters the act might affect the rights of the plaintiff in this action, which was pending when the law was passed. Toletti v. Bidizcki, 118 Conn. 531, 536, 173 A. 223; Loew's Enterprises, Inc., v. International Alliance of T. S. E, supra. An examination of General Statutes, Sup. 1941, §§ 496f-505f, discloses that the law with reference to licensing funeral directors and embalmers is practically rewritten. Many new definitions, requirements and refinements are introduced. It affected the substantive rights of any person seeking a license as a funeral director. There is nothing in the law itself which indicates that it is intended to be retrospective in its operation. It restricts a common right (Wyeth v. Cambridge Board of Health, 200 Mass. 474, 478, 86 N.E. 925, 23 L.R.A.,N.S., 147, 128 Am.St.Rep. 439) and thus derogates from the common law and should be strictly construed in favor of the right. State v. Costello, 61 Conn. 497, 499, 23 A. 868. It follows that the 1941 act was not retrospective in operation and that the rights of the parties are governed by the law in existence at the time the application was made.

The sections of the statutes relevant to the issuance of an original license as funeral director are contained in General Statutes, Chap. 162, as amended by General Statutes, Cum.Sup.1935, Chap. 162. These statutes define the rights and duties of the board, funeral directors and embalmers in considerable detail and evince a legislative intent that both shall be licensed and that there shall be two kinds of licenses, one for funeral directors and another for embalmers. This definitely appears from the fact that there are different provisions in §§ 2857 and 2859 governing the renewal of the two types of licenses and from § 2861, which provides that the board shall forward to local officials of the towns "two printed lists, duly verified, one containing the names of all licensed undertakers [now called funeral directors] and one the names of all licensed embalmers." When search is made for the conditions on which a funeral director's license shall be issued, the only relevant section is § 2865. This provides that the board shall issue such license when application is made therefor on the ground that the former licensee is dead or disabled and that his financial interest has been transferred to the applicant who is related...