Peery v. Virginia Bd. of Funeral Directors and Embalmers, 5360

• Citation: 123 S.E.2d 94,203 Va. 161
• Decision Date: 27 November 1961
• Docket Number: No. 5360,5360
• Court: Supreme Court of Virginia
• Parties: JAMES W. PEERY v. VIRGINIA BOARD OF FUNERAL DIRECTORS AND EMBALMERS, ET AL. Record

Page 94

123 S.E.2d 94

203 Va. 161

JAMES W. PEERY v. VIRGINIA BOARD OF FUNERAL DIRECTORS AND EMBALMERS, ET AL.

Record No. 5360.

Supreme Court of Appeals of Virginia

November 27, 1961.

Paul M. Shuford (Wallerstein, Goode, Adamson & Dobbins, on brief), for the petitioner.

Jack N. Herod (Bowles, Boyd & Herod, on brief), for the respondents.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

On April 26, 1961, James W. Peery, hereinafter referred to as petitioner, filed his original petition alleging that notwithstanding his compliance with Code, §§ 54-260.24 and 54-260.25, as amended, the Virginia Board of Funeral Directors and Embalmers, and its individual members, had denied his application for a license as a funeral director. He prayed that a writ of mandamus forthwith issue requiring and compelling the said Board and each member thereof to issue and deliver to him a license as a funeral director within the meaning of that term as set forth in § 54-260.1 of the Code of Virginia, 1958 Replacement Volume.

The Virginia Board of Funeral Directors and Embalmers and its individual members filed a joint answer, which admitted petitioner's compliance with the requirements of §§ 54-260.24 and 54-260.25, and stated that they refused to issue the said license on the ground that § 54-260.25, as amended by Chapter 356, Acts of 1960, is invalid and unconstitutional, in that it constituted special legislation in violation of §§ 63(18) and 64 of the Constitution of Virginia.

Section 54-260.25, with the 1960 amendment in italics, reads as follows:

'54-260.25. The examination for funeral director's license shall be both theoretical and practical and shall embrace the subjects of bacteriology, care and disposition of the dead, disinfection and sanitation, infectious and contagious diseases, mortuary law and administration and such other subjects as the Board may from time to time deem appropriate and necessary to establish a reasonable knowledge of the care and disposition of the dead and of the sanitation and disinfection of the bodies of deceased persons, their clothing, bedding and living quarters, and competence to engage in the profession or business of funeral directing and as the Board may set out in its rules, regulations and by-laws. The examination shall be written or partly written and partly oral and by practical demonstration, but the board may at any examination or from time to time dispense with either or both the oral or practical demonstration part of the examination; provided, that no examination shall be required of any person who was a licensed embalmer in this State on June twenty-eight, nineteen hundred and thirty-six, and is the holder of an embalmer's license on the effective date of this act, who by reason of a service-connected disability was hospitalized in a veteran's hospital on June twenty-eight, nineteen hundred and thirty-six, and who has been from January first, nineteen hundred and thirty-eight continuously associated and connected with a business conducting 'Funeral directing' as defined in § 54-620.1 of the Code. Any person entitled to exemption hereunder shall file, not later than sixty days after the effective date of this act, with the President of the Virginia Board of Funeral Directors and Embalmers an application for license as a 'Funeral Director', which application when verified by the affidavit of the applicant and supported by documentary evidence of such hospitalization shall entitle such person, if he is the holder of such license as an embalmer, to a funeral director's license.'

Section 63(18) of the Constitution, in part, provides that the General Assembly shall not enact any local, special or private law, 'Granting to any private corporation, association, or individual any special or exclusive right, privilege or immunity.'

Section 64, in part, provides that the General Assembly shall make general laws, and that: 'Any general law shall be subject to amendment or repeal, but the amendment or partial repeal thereof shall not operate directly or indirectly to enact, and shall not have the effect of the enactment of, a special, private, or local law.'

It further provides that: 'No private corporation, association, or individual shall be specifically exempted from the operation of any general law, nor shall its operation be suspended for the benefit of any private corporation, association, or individual.'

It is stipulated by the parties that petitioner was a licensed embalmer in Virginia on June 28, 1936; that he was the holder of such license on June 27, 1960, continuously to the date of his application for a license as a funeral director; that he was hospitalized at a Veterans' Administration Facility on June 28, 1936, by reason of a disability incurred in military service during World War I; that except for the period of his hospitalization he had been from January 1, 1938, continuously associated and connected with the business of conducting 'funeral directing' as defined in § 54-260.1; that he had filed his application for a license as a funeral director not later than 60 days after June 27, 1960, with the president of the Virginia Board of Funeral Directors and Embalmers, together with supporting documentary evidence in compliance with § 54-260.25.

Short depositions were taken, wherein it was conceded that a person who was licensed as an embalmer in Virginia, and was associated and connected with a funeral director, at the time an Act of the General Assembly of 1936 became effective, could have thereafter applied for and obtained a funeral director's license under the 'grandfather clause,' a provision in that Act, Acts 1936, page 225, § 1720-a, Michie's Code, 1942.

Over the objection of the petitioner, respondents further presented the testimony of several witnesses that a member of the General Assembly as a sponsor of the 1960 amendment, at a public hearing before the Senate General Laws Committee, had stressed the fact that it affected only one person.

Reference to the historical background of the statutes involved may be helpful. In 1936, the General Assembly revised the statutes governing funeral directors and embalmers, Acts 1936, Chapter 127. page 219, approved March 7, 1936. The revision relating to the examination and licensing of embalmers and funeral directors thereafter became coded as §§ 1720 and 1720-a, Michie's Code, 1942.

In § 1720-a, relating to funeral directors, there was a so-called 'grandfather clause,' which specially provided that 'No examination shall be required of any person engaged in the business of funeral directing or assisting a funeral director at the time this chapter becomes effective, but all other persons shall take such examination as the Board may require as a prerequisite to the granting of a license.' Acts 1936, page 224.

In a subsequent revision of the statutes relating to embalmers and funeral directors, Acts 1948, Chapter 348, the 'grandfather clause' was omitted, and former §§ 1720, 1721, Michie's Code of 1942, relating to embalmers, became sections 54-247, 54-248, and 54-249, Code of 1950; and former § 1720-a, relating to funeral directors, became sections 54-244, 54-245, and 54-246, Code of 1950.

In 1956, the General Assembly again revised the statutes relating to the same subject, repealed §§ 54-217 to 54-260, and added in Title 54 a new chapter numbered 10.1, consisting of sections 54-260.1 to 54-260.64, inclusive, 1958 Replacement Volume, Acts 1956, Chapter 220, page 228. New sections 54-260.22 to 54-260.25 related to the examination and licensing of funeral directors, and sections 54-260.26 to 54-260.29 related to the examination and licensing of embalmers. Supplement, Code of Virginia, 1950.

Respondents contend that the 1960 amendment is unconstitutional, in that it is special legislation, arbitrary, and unreasonable. They argue that it is applicable to but one person only, the petitioner, relying upon the proffered testimony that it was enacted by the General Assembly upon that representation and the opinion of its sponsor that no one else was concerned.

We need consider only whether the Act was by its terms special legislation. The testimony relied on to show that it was enacted for the benefit of one person only is purely hearsay, immaterial,...