State ex rel. Bigham v. State Board of Embalming

• Decision Date: 02 April 1923
• Citation: 250 S.W. 44,297 Mo. 607
• Parties: THE STATE ex rel. F. J. BIGHAM et al. v. STATE BOARD OF EMBALMING
• Court: Missouri Supreme Court

250 S.W. 44

297 Mo. 607

THE STATE ex rel. F. J. BIGHAM et al. v. STATE BOARD OF EMBALMING

Supreme Court of Missouri

April 2, 1923

Peremptory writ denied.

Leo H Johnson and M. E. Benton for relators.

(1) Relators were registered embalmers in this State to May 1 1922, under licenses duly issued and renewed by the State. Such licenses constitute "valuable privileges and property rights" of which the holder cannot be deprived without due process of law. 6 R. C. L. 266, sec. 251; People v. Love, 16 A. L. R. 703, 707; State ex rel. Shackleford v. McElhinney, 241 Mo. 592; State ex rel. Spriggs v. Robinson, 253 Mo. 271. Due process of law "means law which hears before it condemns, which proceeds on inquiry and renders judgment only after trial." 12 C. J. 1190. (2) The State Board of Embalming is authorized by statute (Sec. 5302) to adopt "rules and regulations and by-laws from time to time, not inconsistent with the laws of this State or of the United States, whereby the performance of the duties of said board and the practice of embalming of dead bodies shall be regulated." Such authority does not contemplate vesting the power to annul licenses of registered embalmers for failure to pay their renewal license fees within a certain restricted time limit. Further all such rules and regulations are subject to review by the courts to determine whether they are reasonable unreasonable or discriminatory. 12 R. C. L. 1273, sec. 12; People v. Love, 16 A. L. R. 709. (3) Rule 6 is not a reasonable rule and regulation, but is inconsistent with the laws, in that it attempts to restrict the time of payment to the day on which the renewal fees become due and payable, and upon failure to pay by said date, to exact, as a penalty, the forfeiture of one's license to practice the art of embalming in the State. (4) Sec. 5304 R.S. 1919, as amended by Laws 1921, p. 392, provides: "Every registered embalmer who desires to continue the practice of his profession, shall annually thereafter, during the time he shall continue in such practice, on such date as said board may determine, pay the secretary of said board a fee of three dollars for the renewal of registration." By this section, the board is not authorized to forfeit the license of a registered embalmer. To permit the board to so act, the statute should specifically set forth the causes for which forfeiture might be exacted. The State alone has the power to license, and it alone has the power to forfeit such license, except in those instances where by specific statutory enactment such power is delegated. In such instances the statute should specifically set forth the causes for which forfeitures might be exacted. Green v. Blanchard, 5 A. L. R. 84, 89. Administrative boards do not make laws. They merely make certain findings of facts, and to these findings the law enacted by the Legislature is applied and enforced. 6 R. C. L. 177, 178. (5) "Penal statutes ought not to be expressed in language so uncertain." United States v. Reece, 92 U.S. 214. (a) A court in construing a statute will not create a penalty by construction, but will avoid it, unless the legislative intent to the contrary clearly appears. Nicholas v. Kelly, 139 S.W. 248. (b) The statutes under which respondents acted should be construed strictly against respondents and liberally in favor of relators. State v. Clark, 232 S.W. 1034; In re Seigal, 263 Mo. 383. (c) "Statutes are not to be construed so as to result in an absurdity or to impose unnecessary burdens, and in the absence of express terms it will not be presumed that the Lgislature intended to authorize and require an unreasonable proceeding." Johnston v. Ragan, 265 Mo. 435. (6) Public officers cannot revoke licenses duly and lawfully issued by the State, except under express authority of the statute, and then not without notice. Meffert v. Packer, 1 L. R. A. (N. S.) 811; Lodes v. Dept. of Health, 13 L. R. A. (N. S.) 894.

Frank H. Farris for respondents.

(1) The State Board of Embalming is a creature of the statute, and derives all of its authority, rights and powers therefrom. The license issued to embalmers and the rights created thereunder, are also creatures of the statute, and, being such, are controlled thereby. R.S. 1919, secs. 5298, 5302, 5305; R.S. 1919, sec. 5303, as amended by Laws 1921, p. 391; R.S. 1919, sec. 5304, as amended by Laws 1921, p. 392. (2) The right to practice the science of embalming as created and provided by the statutes is not a vested nor a property right. It is a mere naked grant of a privilege revocable by the State at any time. State ex rel. v. McIntosh, 205 Mo. 637; State ex rel. v. McIntosh, 205 Mo. 611. (3) The license to embalm confers no right or estate or vested interest, and is therefore revocable at all times at the pleasure of the authority from which it emanates, and a licensee takes his license subject to such condition as the Legislature sees fit to impose. 17 R. C. L. p. 554. (4) Relators having failed to pay their renewal fee for the continuation of their privilege on or before the first day of May, 1922, their right to practice the science of embalming ceased by operation of law. R.S. 1919, sec. 5304, as amended by Laws 1921, p. 392; State ex rel. Wolf v. Dental Board, 221 S.W. 73.

OPINION

In Banc.

Mandamus.

WALKER J.

-- Relators prior to April 30, 1922, were licensed undertakers and embalmers engaged in business at Neosho, under the firm name of Bigham Undertaking Company. On May 22, 1922, they sent to the secretary of the State Board of Embalmers a check for six dollars to renew their license which had under the statute expired April 30, 1922. The fee was returned to them by the secretary with the statement that their license had expired May 1st, and a renewal of same required a re-examination and the payment of a fee of $ 10. Later the secretary notified relators that the board would meet at the Baltimore Hotel in Kansas City, June 26, 1922, "for the benefit of those whose license had been annulled through failure to renew the same within the time specified by law"; and that a return of their application filled out and accompanied by a $ 10 fee would indicate that the relators would attend for examination. The relators notified the secretary that they would not attend and again submit to an examination. To this was added a comment upon rule 6 of the board's regulations and a request that its action be reconsidered and that relators be permitted to pay the renewal fee required upon a timely application therefor. This communication was not answered, and thereafter the board did not recognize the relators as licensed embalmers.

Rule 6 of the regulations of the board is as follows: "On and after our regular meeting in May, 1917, all renewal fees shall become due and payable on the 1st day of May of each year, without regard to the date of the license and the failure to pay the renewal by May 1st shall act as an annulment of such license, and to procure another license such embalmer shall make written application to the board for a new license, accompany the same with a fee of $ 10 and present himself or herself for examination at a regular meeting of the board."

The board is authorized under the fifth subdivision of Section 5302, Revised Statutes 1919: "To adopt rules, regulations and by-laws from time to time, not inconsistent with the laws of this State or of the United States, whereby the performance of the duties of said board and the practice of embalming of dead human bodies shall be regulated."

Under Section 5303, Revised Statutes 1919, as amended, Laws 1921 p. 391, it is provided in effect that all persons now engaged or desiring to engage in...