Keller v. State
| Decision Date | 25 February 1914 |
| Docket Number | 90. |
| Citation | 90 A. 603,122 Md. 677 |
| Parties | KELLER v. STATE. |
| Court | Maryland Court of Appeals |
On Motion for Reargument, May 13, 1914.
Appeal from Criminal Court of Baltimore City; James M. Ambler Judge.
William Keller was convicted of engaging in the undertaking business without having secured a license as required by Acts 1902, c 160, § 8, and he appeals. Affirmed.
Eugene O'Dunne and Donald B. Creecy, both of Baltimore, for appellant.
Edgar Allan Poe, Atty. Gen., Wm. F. Broening, State's Atty Roland R. Marchant, Deputy State's Atty., and J. Cookman Boyd, all of Baltimore, for the State.
The traverser, William Keller, was indicted in the criminal court of Baltimore for violating chapter 160 of the Acts of 1902, entitled an act to create and establish "the State Board of Undertakers of Maryland," and to prescribe the powers and duties of the said board. The indictment contained six counts, and a demurrer was interposed to each count. The court below overruled the demurrer as to the first four counts, and sustained it as to the fifth and sixth counts.
Subsequently the traverser filed ten special pleas, and to each plea the state demurred. The demurrer was sustained, and the traverser upon trial pleaded not guilty. He was tried, convicted, and sentenced to pay a fine of $10, and costs. From this judgment, he has appealed.
The first four counts of the indictment are framed and based upon the Acts of 1902, c. 160, and if this act is a valid exercise of legislative power, the court below committed no error in overruling the demurrer to these counts and to the nine pleas.
The offense is clearly and sufficiently set out in the several counts of the indictment, in the language of the Act of 1902, and we find no objection to the sufficiency or validity of the indictment as thus framed in these four counts.
The fifth and sixth counts are based and founded on chapter 444 of the Acts of 1910. and it is admitted that this last-named act is invalid, under the decision of this court in State v. Rice, 115 Md. 317, 80 A. 1026, 36 L. R. A. (N. S.) 344, Ann. Cas. 1913A, 1247.
It will be seen, that the Acts of 1910, c. 444, repealed section 8 of chapter 160 of the Acts of 1902, as amended by chapter 389 of the Acts of 1904, as amended again by chapter 496 of the Acts of 1908, and reenacted the same with amendments.
In State v. Rice, supra, we held that the Acts of 1908, c. 496, and the Acts of 1904, c. 389, sections 7 and 8 of the Acts of 1902, c. 160, were unconstitutional, and all the amendments to both sections 7 and 8 of the original act were stricken down.
As it is conceded that the Acts of 1910, c. 444, contains and re-enacts the same invalid provisions as were declared void in Rice's Case, the court below was right in sustaining the demurrer to these two counts, and declaring the Acts of 1910, c. 444, to be invalid and inoperative.
By section 7, c. 160, of the Acts of 1902, it is provided that all persons, firms, and corporations, and their assistants and employés, as therein provided, engaged in the business of undertaking at the time of the passage of the act, to register with said board on or before the 1st day of July following.
Section 8 provides that before any person, copartnership, or corporation should, after the passage of the act, engage in the business of undertaking, and before any member of any such copartnership, assistant, or employé of any such person, copartnership, or corporation, or officer of such corporation whose duties would engage him or her in the care, preparation, disposition, or burial of the dead, should discharge the duties of such business, employment, or office, and, before any of those named in the preceding section (section 7) who were engaged in the said business or employment at the time of the passage of the act, and who failed to register within the time named in the last preceding section, should continue in said business, they should apply to the board of undertakers for a license to practice such business and emlpoyment; and, should the board find, upon examination, that the applicant is of good moral character, possessed of skill and knowledge of such business and has a reasonable knowledge of sanitation, preservation of the dead, disinfecting the bodies of deceased persons, apartments, clothing, and bedding, in case of death resulting from infectious or contagious diseases, the board should issue to said applicant, upon the payment of a fee of $20, a license to practice the business of undertaking. It also provided that licenses should be issued to corporations when applied for, and that one license should suffice for all the members of a copartnership when issued in the firm name.
Section 9 provides for the revocation of licenses.
Under section 10 all certificates issued under section 7 and all licenses issued under section 8 expired on the 30th day of April next ensuing the date of their issue, and thereafter, before any person, copartnership, or corporation then engaged in the business of undertaking, or before any of the assistants, employés, or officers previously designated should continue in such business or employment, application should be made to the board for a license to carry on such business or to engage in the practice thereof, and, upon the payment of a fee of $5, a license similar to the one issued under section 8 should be issued by said board to such applicant.
The first count of the indictment charges that the traverser did, on the 2d day of December, 1912, unlawfully engage in the business of undertaking in the city of Baltimore without first having registered as required by law, and without having obtained a license to practice the business of undertaking in Baltimore city, as provided by law.
The second count charges that William Keller, the traverser, being then and there an assistant and employé of a certain person then and there engaged in the business of undertaking, to wit, one William Cook, and, as such assistant and employé, being then and there a person whose duties engaged him in the care, preparation, disposition, and burial of the dead, unlawfully did then and there engage in the business of undertaking without first having registered with the secretary of the state board of undertakers of Maryland, as required by law, and without first having applied for and obtained from the state board of undertakers of Maryland a license to practice the business of undertaking in the state of Maryland.
The third and fourth counts charge a violation of the Acts of 1902, c. 160, and, it will be seen, they fully and clearly state the offense as described by the statute, and need not be set out in the opinion.
The demurrer and pleas cover over six pages of the record, but, as they present the same question, namely, whether the Acts of 1902, c. 160, is a valid and constitutional exercise of legislative power, they will be considered together.
The real objections to the act, appear to be:
First. Because it creates arbitrary and unreasonable classifications, in that it provides: (a) That one license shall suffice for all the members of a copartnership when issued in the firm name; (b) that assistants and employés of undertakers shall pay the same license fee and have the same skill and knowledge as the undertakers employing them; (c) that licenses shall be issued without charge to corporations upon application.
Second. Because its provisions are uncertain and cover occupations outside of the sphere of the police power.
Many of the objections and questions presented in this case are really concluded by cases recently decided by this court. In Shenan v. Tanenbaum, Son & Co., 121 Md. 286, 88 A. 146, this court held that it was competent for the Legislature to provide that no license shall be issued to permit more than one person or the members of a bona fide copartnership to act thereunder, in reference to an insurance broker's license. It was also held that corporations were not included in the use of the word "person," as mentioned in the statute. Judge Constable, in dealing with this question, said the Legislature seems to have wanted to make clear that, although they extended the privilege of the license to the members of a bona fide copartnership, they nevertheless intended, when issued to a person, its use was restricted to the use of one person. Corporations necessarily conduct their business through officers and agents. We do not think because the privilege is extended to the members of a copartnership to do business on one license that it is open to the same criticism, for the act limits its use to the members of a bona fide copartnership, and the use of the license would be confined to the individual members.
The contention upon the part of the appellant that the act in question is unconstitutional because it creates arbitrary and unreasonable classifications will be seen, upon an examination of the act, to be without force. There is no discrimination as between those embraced within a class, and the regulations of the statute operate alike upon all persons and property, under the same circumstances and conditions. As stated by the learned Attorney General in his brief, the act provides for one class embracing corporations, one class embracing partnerships, one class embracing individuals engaged in business for themselves, and one class embracing assistants and helpers.
It is true that, under the provisions of the act, a corporation pays nothing for a license, and that one license suffices for a copartnership, provided it is issued in the firm name while every individual, in order to secure a license, must pay the sum of $20. Every individual, however, is on a footing of equality, and the...
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