McKinley v. Reilly

• Decision Date: 18 June 1964
• Docket Number: No. 8230,8230
• Citation: 96 Ariz. 176,393 P.2d 268
• Parties: Clarence H. McKINLEY, Petitioner, v. Chris A. REILLY, C. Stanley Clegg and Hugh Dugan, as members of the Arizona State Board of Funeral Directors and Embalmers, Respondents.
• Court: Arizona Supreme Court

Page 268

393 P.2d 268

96 Ariz. 176

Clarence H. McKINLEY, Petitioner, v. Chris A. REILLY, C. Stanley Clegg and Hugh Dugan, as members of the Arizona State Board of Funeral Directors and Embalmers, Respondents.

No. 8230.

Supreme Court of Arizona, In Banc.

June 18, 1964.

Charles M. Brewer, Phoenix, for petitioner.

Robert W. Pickrell, Atty. Gen., Philip M. Haggerty, Asst. Atty. Gen., John Madden and John S. Schaper, Special Assts., Phoenix, for respondents.

STRUCKMEYER, Justice.

This action was commenced in this Court as an original petition for certiorari, article 6, section 5, Arizona Constitution, as amended 1960, A.R.S., and Rule 1 (a and b), Rules of Supreme Court, 17 A.R.S., to examine a decision of the Arizona State Board of Funeral Directors and Embalmers denying petitioner a license to act as a funeral director. Jurisdiction was accepted on the authority of Bennett v. Arizona State Board of Public Welfare, 95 Ariz. 170, 388 P.2d 166, and Findlay v. Board of Sup'rs of County of Mohave, 72 Ariz. 58, 230 P.2d 526, 24 A.L.R.2d 841.

Petitioner, Clarence H. McKinley, fled an application with the Arizona State Board of Funeral Directors and Embalmers for a certificate of qualification as a funeral director on the form prescribed by the Board. The Board returned McKinley's application accompanied by a letter stating that the application was not in the form required by A.R.S. § 32-1331. That section requires the Board to investigate an applicant for a funeral director's certificate if the form submitted contains the information prescribed by A.R.S. § 32-1330.

A.R.S. § 32-1330 sets out qualifications for a funeral director, requiring that an applicant shall set forth that he:

'A. 2. Has been, for not less than one year previous to the filing of his application, a qualified practicing embalmer associated with a qualified practicing funeral director.'

In his application, petitioner stated that he was not a qualified embalmer. It is conceded that petitioner has been a funeral director for a period of twenty-five years elsewhere than in Arizona, including the State of California.

On December 2, 1963, petitioner applied for a writ of mandamus in the Superior Court of Maricopa County asking that the Board be directed to issue a funeral director's certificate and in the alternative for a declaratory judgment that A.R.S. §§ 32-1330 and 32-1331 be found unconstitutional. The Superior Court of Maricopa County refused to issue the writ and further declared that A.R.S. §§ 32-1330 and 32-1331 were constitutional.

Petitioner here urges that A.R.S. §§ 32-1330 and 32-1331 deprive the petitioner of rights guaranteed to him under the Constitution of Arizona, article 2, section 4, and the Fourteenth Amendment to the United States Constitution, imposing an unreasonable requirement in that to be certificated as a funeral director one must be a licensed embalmer. It is petitioner's argument that the business of funeral directing is not so closely aligned with the business of embalming that a funeral director should be required to be an embalmer, that consequently it is an arbitrary exercise of police power for the Arizona legislature to require a funeral director to have the skill and knowledge of an embalmer.

It is well established that both undertaking and embalming are so affected with the public interest that they are subject to regulation and control by the State. In City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 272 P. 923, where, under the authority of its City Charter, Tucson passed an ordinance regulating the location of mortuaries, we said:

'It is generally conceded that mortuaries, to use the modern term applied to undertaking and embalming establishments, are subject to reasonable police regulation * * * as to the manner in which they are conducted.' 34 Ariz. 499, 500, 272 P. 923, 924.

It is now undisputed that the undertaking and embalming business is one of a quasi public business closely related to health, welfare and public safety and is a business which, under the police power of the state, may be subject to regulation. See 89 A.L.R.2d 1338, annotation and cases cited, 1342-1343.

Some general principles of law need by emphasized. Every legislative act is presumed constitutional and every intendment is indulged in favor of an act's validity. Austin v. Campbell, 91 Ariz. 195, 370 P.2d 769. The police power of the State is the power vested in its legislature to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances either with penalties or without as shall be judged to be good for the welfare of the state and its residents. Sweet v. Rechel, 159 U.S. 380, 16 S.Ct. 43, 40 L.Ed. 188. Neither the Federal nor the Arizona Constitutions require that the legislature act in a manner less than in the public interest merely because an individual's right is affected by the passage of that particular statute.

In Edwards v. State Board of Barber Examiners, 72 Ariz. 108, 231 P.2d 450, we held that where an enactment bears any reasonable relationship to the end sought the courts may not substitute their judgment for the judgment of the legislature. We also said that the courts will acquiesce in the legislative determination of all matters of fact unless it is clearly erroneous, arbitrary and wholly unwarranted.

It is for the legislature to determine when a business or occupation, whether inherently or as the result of the manner in which it is conducted, is subject to restrictions. Courts are not concerned with the wisdom of legislative regulation, but examine only to determine if it runs contrary to constitutional guarantees or if it is otherwise arbitrary and unreasonable. We said in Francis v. Allen, 54 Ariz. 377, 96 P.2d 277, 126 A.L.R. 190:

'There is business which is entirely legitimate ordinarily, but it may become, because of the manner in which it is carried on, a cause of such evils, vices and dangers as affect the safety, health, comfort or welfare of the public. When it has this effect, it is subject to regulation, or even to prohibition, by the state under its police powers, and in determining when the necessity for such regulation or prohibition arises, it will be presumed that the legislature knows the manner in which the business is carried on and believes that the necessity for regulation has arisen.' 54 Ariz. 381, 382, 96 P.2d 279. A.R.S. § 32-1301 defines 'embalmer,' 'funeral directing' and 'funeral director' as:

"Embalmer' means a person engaged in the art of disinfecting or preserving dead human bodies and preparing them for transportation.'

"Funeral directing' means the business or profession, for profit, of disposing of dead human bodies, or of maintaining a funeral establishment.'

"Funeral director' means a person engaged in funeral directing or in the management of a funeral establishment.'

By A.R.S. § 32-1301, an embalmer is a person engaged in the art of disinfecting or preserving dead human bodies and preparing them for transportation. He is required, by A.R.S. § 32-1322, to be a graduate of a standard four-year high school course or its equivalent, be a graduate of a regular course of instruction in a college of embalming approved by the State Board of Funeral Directors and Embalmers, have two years practical training and instruction under a qualified practicing embalmer and have embalmed not less than fifty human bodies in the course thereof. The preparation for burial of the human remains involves proficiency in the fields of anatomy, chemistry, and bacteriology and the like.

The sciences of bacteriology and pathology and others allied with the prevention of the spread of infectious disease have advanced immeasurably during the past fifty years. Those who die from contagious and infectious disease may pass through the hands of an embalmer in preparation for disposal. A high degree of skill and knowledge in sanitation and hygiene must be possessed by an embalmer in order to prevent the transmission to or infection by others.

We take judicial notice that in the Great Plains area of the Western States and especially in Arizona the temperature during most of the year is such that dead bodies will rapidly decompose and disintegrate and that hence it is the common practice to embalm bodies in order to preserve them for services and later burial. The Arizona State Department of Health, by Rules and Regulations, Vital Statistics, Article 5, Part I, Regulation 3, recognizes the problem in forbidding the holding of any human body more than forty-eight hours after death unless it is embalmed or kept at a temperature below 32 degrees.

It is made a crime and unlawful by A.R.S. § 32-1368 for an embalmer, having knowledge of the fact sufficient to raise a suspicion of a crime related to the cause of death, to embalm a dead human body without permission of a coroner. The State here has imposed upon the embalmers an obligation to recognize and understand matters of fact concerning causes of death and criminal responsibility therefor.

The legislature has decided that embalming is not a business which should be entered into without substantial preparation nor is it one in which the uninformed or ill-trained should engage. There is, accordingly, an obvious relationship to the public health, safety and welfare which justifies that the State, in the exercise of the police power, demand rigid requirements of training and education in the public interest. Trinka Services, Inc. v. State Board of Mortuary Science, 40 N.J.Super. 238, 122 A.2d 668.

By A.R.S. § 32-1321, those desiring to engage in the business of funeral directing must first procure from the State Board of Funeral Directors and Embalmers a...