Keller v. State
| Citation | 90 A. 603,122 Md. 677 |
| Decision Date | 25 February 1914 |
| Docket Number | No. 90.,90. |
| Parties | KELLER v. STATE. |
| Court | Court of Appeals of Maryland |
122 Md. 677
KELLER
v.
STATE.
No. 90.
Court of Appeals of Maryland.
Feb. 25, 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.
Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.
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.
BRISCOE, J. 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 Atl. 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It will be seen, that the Acts of 1910, c. 444, repealed section 8 of chapter 160 of the Acts of 1902, as amended by chapter 389 of the Acts of 1904, as amended again by chapter 496 of the Acts of 1908, and reenacted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, amending 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 employe's, 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 employe 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 sanita tion, 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 employe of a certain person then and there engaged in the business of undertaking, to wit, one William Cook, and, as such assistant and employe, being then and there a...
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