State Board of Funeral Directors and Embalmers for Florida v. Cooksey

• Decision Date: 30 May 1941
• Citation: 3 So.2d 502,147 Fla. 788,147 Fla. 337
• Parties: STATE BOARD OF FUNERAL DIRECTORS and EMBALMERS FOR FLORIDA et al. v. COOKSEY.
• Court: Florida Supreme Court

3 So.2d 502

147 Fla. 337, 147 Fla. 788

STATE BOARD OF FUNERAL DIRECTORS and EMBALMERS FOR FLORIDA et al. v. COOKSEY.

Florida Supreme Court

May 30, 1941

Rehearing Denied July 18, 1941.

Judgment Adhered to on Rehearing Oct. 15, 1941. See 4 So.2d 253.

Appeal from Circuit Court, Pinellas County; T. Frank Hobson Judge.

Hull Landis & Whitehair, Francis P. Whitehair, and John L. Graham, all of DeLand, for appellants.

M. Lewis Hall, of Miami, Wm. C. Kaleel and B. M. Skelton, both of St. Petersburg, and Tyrus A. Norwood, of Miami, for appellee.

BUFORD, Justice.

On appeal we review order of Circuit Court reversing order of State Board of Funeral Directors and Embalmers for Florida revoking the license of Ralph G. Cooksey as a 'funeral director' under the provisions of Chapter 17950, Acts of 1937.

The charges upon which the action of the Board is based are,

'That the said Ralph G. Cooksey violated Section 10, paragraph numbered 2 subparagraph (g) of Chapter 17950, Laws of Florida, Acts of 1937, in that the said Ralph G. Cooksey shipped and delivered a certain casket containing the body of one Marion Bailey, deceased, to affiant with intent to deceive Nathan A. Tucker, the purchaser thereof, which said casket did not conform to the sample submitted and the representations made prior to securing the order therefor from the said Nathan A. Tucker by the said Ralph G. Cooksey, and

'That the said Ralph G. Cooksey violated Section 10, paragraph numbered 2, subparagraph (f) of Chapter 17950, Laws of Florida, Acts of 1937, in that he falsely imputed to one Maynard A. Duryea, Manager of Endicott Funeral Company of St. Petersburg, Florida, and a duly licensed funeral director of the State of Florida, inability to perform a certain contract made with affiant to ship the body of one Marion Bailey, deceased, from St. Petersburg, Florida, to Lizton, Indiana, and

'That the said Ralph G. Cooksey violated Section 10, paragraph numbered 2, subparagraph (k) of Chapter 17950, Laws of Florida, Acts of 1937, in that he willfully interfered with Maynard A. Duryea, a licensed funeral director of the State of Florida, having lawful custody of the dead human body of one Marion Bailey, deceased, in the performance of the duty of the said Maynard A. Duryea as a licensed funeral director.'

Paragraph 2 of Section 10 of the Act provides, inter alia: 'Whenever it shall appear to the Board that any licensed funeral director practicing in the State of Florida has been guilty of any of the following acts, his or her license shall be revoked by the Board: * * *.'

Sub-paragraphs (f), (g) and (k) of paragraph 2 of Section 10 of the Act, supra, are as follows:

'(f) That the licensee has caused the defamation of a duly licensed funeral director in this State by falsely imputing to him dishonorable conduct, inability to perform contracts, or the handling of inferior merchandise.

'(g) That the licensee has shipped or delivered merchandise or supplies, with the intent to deceive the purchaser, which did not conform to the samples submitted or representations made prior to securing the order therefor.

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'(k) That the licensee has wilfully interfered with a licensed funeral director having lawful custody of a dead human body in the performance of his duty as such funeral director.'

As we construe sub-paragraph (k), supra, it covers any interference by one funeral director with the lawful possession of any other funeral director of a dead human body whether the latter funeral director shall have taken physical possession of the body or is merely entitled to the lawful possession of such body.

There is no question about the construction of sub-paragraphs (f) and (g).

There is no question about the compliance with the statute by the Board in connection with the procedure, hearing and determination of the controversy.

Appellee contends that the order of the Circuit Court should be affirmed, if for no other reason because he avers that Chapter 17950 is unconstitutional and void, in that it contravenes either or both Section 1, Article XIV of the Amendments to the Federal Constitution and Section 12 of the Declaration of Rights of the Florida Constitution. This question was not passed on by the lower court, though the appellee assigned this as a ground for review.

Appellee has cited a number of cases which appear to support his contention, but we are not inclined to follow the reasoning of these cases.

In the case of Hunter v. Green, 142 Fla. 104, 194 So. 379, we recognized the power of a municipal legislative body to regulate the business of an undertaker, not under the provisions of a zoning ordinance but under the inherent police power delegated to the municipality by the legislature. The particular provision of the Florida act, supra, which the appellee contends makes the act void, is that contained in subparagraphs (e) and (f) of paragraph 2 of Section 8(1) of the Act, page 480. Paragraph 2 of Section 8(1), inter alia, provides:

'(2) That no person shall be qualified to be examined by the State Board of Funeral Directors and Embalmers for license as a funeral director unless he shall have the following qualifications:

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'(e) He shall have been a practicing licensed embalmer in the State of Florida for at least one year.

'(f) He shall have been associated with some funeral director duly licensed under the terms of this Act, in the business of funeral directing for at least twelve months and shall have been vouched for and recommended by at least two funeral directors, duly licensed under the terms of this Act, who are familiar with his reputation and character.'

The last paragraph of Section 8 of the Act, p. 482, provides: 'Any person who at the time of the passage of this Act is a duly licensed funeral director or embalmer under the laws of the State of Florida shall be considered as duly licensed under the terms of this Act, and such license shall continue in full force and effect until the 31st day of December, A. D. 1937, and shall be subject to renewal as are other licenses issued under the terms of this Act.'

The vocation of a funeral director is one which is affected with public interest and concern to a paramount degree. The preservation of the bodies of the dead and the ceremonies connected with the disposition of such bodies has been a matter of great human interest since the dawn of man's civilization. That interest has obtained, and continues to obtain, amongst the savage tribes of the world as well as amongst the civilized people. The courts of the land have recognized the propriety of legislation regulating the exercising of the vocation of embalmers and funeral directors.

In the case of Prata Undertaking Co. v. State Board of Embalming & Funeral Directing, 55 R.I. 454, 182 A. 808, 104 A.L.R. 389, it is held:

'Legislature had authority to enact laws regulating operating of undertaking business for purpose of safeguarding public in relation to its health, safety, morals, comfort, and general welfare, in view of public or quasi-public nature of such business. * * *

'So long as a statute enacted by Legislature pursuant to its police power bears substantial relation to welfare of public, protects and conserves constitutional guaranties, and appears to be reasonable exercise of power, it will be held valid, and within such limits exercise of legislative discretion is not subject to judicial review. * * *

'Provision of statute regulating operation of undertaking business authorizing state board of embalming and funeral directing to revoke or suspend any funeral directing license for any cause deemed sufficient in judgment of board held not unconstitutional as abridging privileges or immunities of citizens or depriving them of due process.'

And in the body of that opinion the court said:

'The exercise by the Legislature of the right to so regulate and control is now fully recognized and justified under the police power, especially when the professions and occupations are of a public or quasi public nature. Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441, L.R.A.1915C, 960, and cases cited. The undertaking business is an enterprise of this type, and the safeguarding of the public in relation to its health, safety, morals, comfort, and general welfare is the primary object sought by and is the basis for such legislation. People v. Ringe, 197 N.Y. 143, 90 N.E. 451, 27 L.R.A. (N.S.) 528, 18 Ann.Cas. 474; Keller v. State, 122 Md. 677, 90 A. 603; Miller v. Johnson, 110 Kan. 135, 202 P. 619; State v. Norvell, 137 Tenn. 82, 191 S.W. 536, L.R.A.1917D, 586. It is of importance to all that such a business be conducted properly, and only by those who are qualified to carry out its responsibilities. Questions relating to the care of dead human bodies, their embalming and transportation, the location of the business and its equipment, sanitation, danger of infection or contagion from disease, the obtaining of required certificates and permits before acting, the orderly conduct of funerals and burials, and the like, are all of public concern.'

See, also, Drummey v. State Board of Funeral Directors & Embalmers of California, Cal.App., 77 P.2d 912, and cases there cited; People v. Ringe, 197 N.Y. 143, 90 N.E. 451, 27 L.R.A.,N.S., 528, 18 Ann.Cas. 474.

In the latter case it was held that the legislature had the power to regulate the vocation involved but that the provision which required one who sought to engage in the business of an undertaker to have been duly licensed as an embalmer and to have been employed as an assistant to a licensed undertaker continuously for three years was violative of the constitutional guaranty that no state should make any law abridging the privileges or...