Quesenberry v. Estep, 10827

• Citation: 95 S.E.2d 832,142 W.Va. 426
• Decision Date: 22 December 1956
• Docket Number: No. 10827,10827
• Court: Supreme Court of West Virginia
• Parties: Amos QUESENBERRY et al. v. J. S. ESTEP et al., Members of West Virginia Board of Embalmers, etc.

Page 832

95 S.E.2d 832

142 W.Va. 426

Amos QUESENBERRY et al. v. J. S. ESTEP et al., Members of West Virginia Board of Embalmers, etc.

No. 10827.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1956.

Decided Dec. 22, 1956.

Syllabus by the Court.

1. The business or profession of embalming and the business or profession of funeral directing are subject to regulation under the police power of the State.

2. The Legislature is the depository of the police power of the State and, subject to well settled and widely recognized limitations, may delegate it to boards and commissions.

3. As a general rule the Legislature, in delegating discretionary power to an administrative agency, such as a board or a commission, must prescribe adequate standards expressed in the statute or inherent in its subject matter and such standards must be sufficient to guide such agency in the exercise of the power conferred upon it.

4. The general rule, which requires an express standard to guide the exercise of discretion and applies to legislation regulating ordinary lawful activity, is subject to the exception that when it is impracticable to formulate a definite comprehensive rule or when the legislation relates to the administration of a police regulation and is necessary to protect the public health, morals, safety, and general welfare of the community, it is not essential that a specific prescribed standard be expressly stated in the legislation.

5. The provisions of Sections 3 and 7, Article 6, Chapter 49, Acts of the Legislature, 1933, Extraordinary Session, as amended by Chapter 45, Acts of the Legislature, 1941, Regular Session, as amended by Chapter 149, Acts of the Legislature, 1951, Regular Session, constitute a valid delegation of the police power to the West Virginia Board of Embalmers and Funeral Directors and authorize the exercise of that power by the board. Those provisions of the statute are not arbitrary, capricious or unreasonable in character, or violative of the Constitution of the United States or the Constitution of West Virginia, and are valid.

6. Rule Eleven, relating to solicitation of business, and Rule Twelve, relating to advertising, promulgated by the board, under the power and authority conferred upon the board by statute, are a valid exercise of the police power of the State, in relation to embalming and funeral directing, legally delegated to the board by the Legislature, do not violate any provision of the Constitution of the United States or the Constitution of West Virginia, and are valid and of binding force and effect.

John G. Fox, Atty. Gen., Robert E. Magnuson, Asst. Atty. Gen., for appellants.

No appearance for appellees.

Ernest K. James, E. Glenn Robinson, Charleston, amici curiae for the West Virginia Press Ass'n.

Steptoe & Johnson, Eugene G. Eason, Clarksburg, amici curiae for Davis Funeral Homes, Inc.

Vincent V. Chaney, Charleston, amicus curiae for West Virginia Funeral Directors Ass'n.

HAYMOND, Judge.

This is a proceeding instituted in the Circuit Court of Kanawha County on May 10, 1954, in which the plaintiffs seek a declaratory judgment to determine the question of the validity of certain rules and regulations promulgated by the West Virginia Board of Embalmers and Funeral Directors on January 28, 1954, effective as of May 15, 1954, under the provisions of Chapter 49, Acts of the Legislature, 1933, Extraordinary Session, as amended by Chapter 45, Acts of the Legislature, 1941, Regular Session, as amended by Chapter 149, Acts of the Legislature, 1951, Regular Session. The foregoing statute as so amended now appears as Chapter 30, Article 6, Sections 1 to 12, inclusive, in Michie's Annotated Code, 1955. The plaintiffs are Amos Quesenberry, a duly licensed embalmer and funeral director, and Glenn Webb, and the defendants and the West Virginia Board of Embalmers and Funeral Directors and J. S. Estep, R. C. Jones, C. A. Ruttencutter, B. F. Whitescarver, Melvin T. Strider, Marshall Shanklin and N. H. Dyer, who constitute the seven members of the board.

By their amended petition the plaintiffs challenge the validity of rule eleven and rule twelve of the rules and regulations of the board on the grounds that they are in direct conflict with the statute under which they were promulgated by the board, that they are unreasonable, arbitrary and oppressive, that they contravene the statutory provision which permits proper advertising, and that they violate the Fourteenth Amendment to the Constitution of the United States and Sections 1, 7 and 10, Article III, and Section 1, Article V of the Constitution of West Virginia. The plaintiffs allege that they are engaged in the business of funeral directing and embalming in Beckley, Raleigh County, West Virginia; that, in conducting such business, they have engaged in advertising which is now prohibited by the foregoing rules; that if they continue to conduct their business in the manner in which it has been conducted in the past and as they intended to do if the foregoing regulations prohibiting the advertising methods heretofore practiced by them had not been promulgated, the license of the plaintiff Amos Quesenberry would be subject to revocation and suspension in proceedings which will be instituted by the board for that purpose; and that if the plaintiffs are required by the foregoing rules to refrain from conducting their business as they have conducted it in the past they will suffer irreparable damage, their business will be destroyed, and they will be deprived of their property without due process of law.

The prayer of the amended petition is that the rights of the parties to this proceeding be declared, that the question of the validity of the foregoing statute, rules and regulations be determined, that they be held to be invalid, and that the plaintiffs be granted general relief.

By their answer to the amended petition the defendants deny the material allegations of the amended petition, aver that the statute and the rules and regulations promulgated by the board are valid, and pray that they be so declared and determined in this proceeding.

The case was heard by the circuit court upon the amended petition of the plaintiffs, the answer of the defendants, and depositions filed by the plaintiffs. In the final decree entered October 18, 1955, the circuit court found that this proceeding was not prematurely instituted; that the title of the amendatory act of 1951 was sufficient; that the provisions of the statute were not violative of the rights of the petitioners under the Constitution of the United States or the Constitution of this State; and that the provisions of the statute do not authorize the board to promulgate a rule prohibiting unethical advertising; and by that decree held that rule eleven was valid except insofar as it may be applied to regulate the rate of discount given by funeral directors for business not obtained by means of solicitation and that rule twelve was not valid except insofar as it prohibits the use of false and misleading advertising and the advertising of free material and free service including ambulance service.

The plaintiffs did not file a brief in this Court and this proceeding was submitted for decision upon the brief and the oral argument in behalf of the defendants. By leave of this Court West Virginia Funeral Directors Association, as amicus curiae, filed a brief urging reversal, and West Virginia Press Association, as amicus curiae, and Davis Funeral Home, Inc., as amicus curiae, filed separate briefs urging affirmance, of the final decree.

The defendants assign as error the action of the circuit court (1) in holding that the provisions of the statute, as amended, do not authorize the West Virginia Board of Embalmers and Funeral Directors to promulgate a rule of the board which defines unethical advertising by licensed embalmers and funeral directors and (2) in refusing to hold valid the rule promulgaged by the board which defines and prohibits unethical advertising.

The West Virginia Board of Embalmers and Funeral Directors was created and its powers and duties and defined by Chapter 49, Acts of the Legislature, 1933, Extraordinary Session, as amended. As presently constituted the board consists of seven members who are appointed by the governor, with the advice and the consent of the senate, for a term of four years. All the members of the board, except the state health director, are licensed embalmers and practicing funeral directors with a minimum experience of five consecutive years in this State, and each members, before discharging the duties of his office, is required to take and subscribe the oath prescribed by the Secretary of State.

Under the statute no person may engage in the profession or business of embalming unless he holds an embalmer's license issued by the board and no person may engage in the profession or business of funeral directing unless he holds a funeral director's license issued by the board. The failure to comply with this requirement constitutes a misdemeanor. To be entitled to an embalmer's license, a person must be at least twenty one years of age, a citizen of the United States, of good moral character, hold a high school diploma, have at least sixty hours credit of resident educational training in an accredited university, have completed one year of apprenticeship under the supervision of a licensed embalmer, be a graduate of an approved school of embalming, and have passed an examination conducted by the board. To be eligible to receive a license as a funeral director, a person must hold an embalmer's license issued by the board, be duly registered by the board as an apprentice, have served an apprenticeship of not less than one year under the personal supervision of a licensed funeral director, and have passed an examination conducted by the board. The license of an embalmer and the license of a funeral director must be renewed...