Miller v. Johnson

• Decision Date: 10 December 1921
• Docket Number: 23,747
• Citation: 202 P. 619,110 Kan. 135
• Parties: GUY S. MILLER, Plaintiff, v. J. S. JOHNSON et al., as THE STATE BOARD OF EMBALMING OF THE STATE OF KANSAS, Defendants
• Court: Kansas Supreme Court

202 P. 619

110 Kan. 135

GUY S. MILLER, Plaintiff, v. J. S. JOHNSON et al., as THE STATE BOARD OF EMBALMING OF THE STATE OF KANSAS, Defendants

No. 23,747

Supreme Court of Kansas

December 10, 1921

Decided July, 1921

Original proceeding in mandamus.

Writ allowed.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATE BOARD OF EMBALMING--Authority to Promulgate and Enforce Rules Regulating the Embalming of Human Bodies -- Power to Revoke Embalmer's License. The statute (Gen. Stat. 1915 §§ 10293-10309), which authorizes the state board of embalming to make rules, not inconsistent with the laws of this state or of the United States, regulating the embalming of dead human bodies, and to conduct examinations to issue licenses to qualified persons for the practice of embalming, etc., is sufficient authority for the state board of embalming to promulgate and enforce a rule for the revocation of a license issued and accepted pursuant thereto, for the infraction of a valid rule of such board.

2. SAME. Under the powers conferred by law upon the state board of embalming to make rules touching the practice of embalming and to issue licenses to persons found to be duly qualified, such board has power, for good cause shown, and upon due notice and a fair hearing, to revoke an embalmer's license when he confesses to have violated a valid rule of the board, notwithstanding such violation is also a misdemeanor punishable by a fine.

3. SAME--Statute Authorizing Board of Embalming to Promulgate and Enforce Its Rules Constitutional. There is no constitutional objection to the embalmer's statute which declares it to be a misdemeanor to violate a reasonable rule of the state board of embalming, although the rule is only promulgated by virtue of that statute and the rule itself is not prescribed until after the statute declaring its infraction to be such misdemeanor is enacted.

4. SAME--Under Facts Shown No Breach of Statute Appears. The facts confessed by plaintiff in a hearing before the state board of embalming, on a complaint that he had violated the law and a certain rule of the board made pursuant thereto, examined, and held to be no breach of the statute itself.

5. SAME--Rules of Embalming Board Must Be Reasonable. Where an official board like the state board of embalming is authorized to make and enforce rules concerning the embalming of dead human bodies, and for the examining and licensing of embalmers, such rules must be reasonable, and any rule clearly unreasonable or one given an unreasonable interpretation or application is void.

6. SAME--Rule as Applied to Facts Shown Unreasonable. The summarized facts of this case disclose: A citizen of Geneseo died in a hospital at Little River. His death was not the result of a communicable disease. His relatives requested the plaintiff, an undertaker at Geneseo, to bring home the dead man's body. He complied, bringing home the body in an automobile hearse, over the highways of a rural community, a journey of fifteen miles. He disregarded a rule of the state board of embalming which would have required that before bringing home the dead body, he should have embalmed it and waited thereafter for twelve hours, and he should have procured a removal permit from the local registrar of embalmers at Little River, and should have tagged the dead body with a yellow paster furnished by the state board. In consequence of the breach of this rule, the plaintiff's license as an embalmer was revoked. Held, that this rule, as interpreted by the state board and as applied to the facts outlined above, is unreasonable and void, and held, also, that the plaintiff is entitled to reinstatement as a licensed embalmer.

Samuel Jones, and Ben Jones, both of Lyons, for the plaintiff.

Richard J. Hopkins, attorney-general, and John G. Egan, assistant attorney-general, for the defendants.

OPINION

DAWSON, J.:

This is an original proceeding in mandamus in which the plaintiff seeks to have restored to him his license as an embalmer, which the defendants, as the state board of embalming, canceled because of plaintiff's breach of a rule of the board touching the transportation of a dead body without first embalming it and without first obtaining a removal permit from the local registrar.

The circumstances were these: One Robert Archibald, a resident of Geneseo, in Rice county, died in a hospital at Little River, in the same county; and the relatives of the deceased directed the plaintiff, the local undertaker, to go to Little River and bring home the body of Mr. Archibald. The plaintiff complied; he brought the body home in an automobile hearse, through an ordinary rural district, a distance of fifteen miles.

The local embalmer at Little River filed with the state board of embalming a complaint against plaintiff for breach of certain rules of the board. The board gave plaintiff notice of a hearing on the complaint at Hutchinson. Plaintiff appeared and admitted the facts. The board made a finding that plaintiff had violated section 10309 of the General Statutes of 1915, and rule 1, adopted by the board pursuant to this section. Thereupon, the board canceled the plaintiff's license as an embalmer, and in this action he seeks reinstatement.

The statute which the board found that plaintiff had violated reads:

"The state board of embalming shall from time to time adopt rules and regulations, not inconsistent with the laws of this state or of the United States, whereby the performance of the duties of the secretary and said board and the practice of embalming dead human bodies and transportation of same shall be regulated. All companies or individuals operating or controlling railroads, express companies, electric railways, coaches, public and private conveyances, and all licensed embalmers in this state, shall obey the rules and regulations when made and published in the official state paper by the state board of embalmers, and any licensed embalmer, or any person or owner having charge of any railway train, passenger coach, electric railway, public or private conveyance, who shall refuse or neglect to obey such rules and regulations when made and published in the official state paper by the state board of embalmers shall be guilty of a misdemeanor, and for each offense shall be punished by a fine of not less than fifty dollars nor more than two hundred dollars." (Gen. Stat. 1915, § 10309.)

The rule which the board found that plaintiff had violated reads:

"Rule. Yellow pasters used for the transportation of dead human bodies, must contain Registrar's Removal Permit, Licensed Embalmer's Certificates Nos. 1 and 2, Railway, Express and Public or Private Conveyance Transit Form. Paster must be approved by the Kansas State Board of Health. Said pasters to be furnished by the State Board of Embalming of the State of Kansas, and issued only to embalmers holding a valid license from said board.

"The embalmer who prepares a body for transportation (except to local or adjacent cemeteries), must fill out Licensed Embalmer's Certificates Nos. 1 and 2, also secure Registrar's Removal Permit, all properly filled out and signed. Said embalmer shall detach Original Licensed Embalmer's Certificate No. 2 and immediately forward same to the Secretary of the State Board of Embalming of the State of Kansas.

"The person, agent or owner of any Railway Company, Express Company, Electric Railway, Coaches, Public or Private Conveyance, who receives a dead human body for transportation, must fill out Railway Express, Public or Private Conveyance Transit Form and sign as person, agent or owner, and securely fasten Original Paster containing Registrar's Removal Permit, licensed Embalmer's Certificate No. 1 and Transit Form on the shipping box or case (so that the same may be read); said Yellow Paster must accompany body to destination.

"No person, agent or owner of any Railway Company, Express Company, Electric Railways, Coaches, Public or Private Conveyances, shall transport, receive or offer for transportation any dead human body (except disinterred body), unless said body has been embalmed twelve (12) hours and is accompanied by a Yellow Paster, properly filled out and signed by a Kansas Licensed Embalmer in accordance with this rule."

Another rule of the board (No. 26) provides that if any licensed embalmer violates any provision of the embalmer's law or any rule of embalming, etc., pertaining thereto, upon complaint, notice and hearing, his license may be revoked.

Counsel for the plaintiff first contends that the statute does not confer power on the state board of embalming to cancel the plaintiff's license, and that the statute itself provides the exclusive penalty for the violation of any valid rule of the board--a fine of $ 50 to $ 200.

The court is not inclined to adopt this view. Passing for the moment the question concerning the reasonableness of the particular rule whose infraction brought about the cancellation of plaintiff's license, it seems clear that the comprehensive powers conferred on the board were broad enough to authorize the making of a rule for the cancellation of a license, upon notice and a fair hearing, and for good cause shown. Plaintiff obtained his license in conformity with the valid rules of the board and accepted it pursuant thereto. (Child v. Bemus, 17 R.I. 230, 12 L. R. A. 57, 21 A. 539.)

In Metropolitan Milk & C. Co. v. City of New York, 113 A.D. 377, 98 N.Y.S. 894, a milk dealer brought a damage suit against the city and others because his license to sell milk had been revoked by the board of health. Under the state law the authority and power to license and regulate the sale of milk was vested in the board of health. The board had power to issue permits, but the statute did not in express...