State ex rel. Kemplinger v. Whyte

• Decision Date: 06 June 1922
• Citation: 188 N.W. 607,177 Wis. 541
• Parties: STATE EX REL. KEMPLINGER v. WHYTE ET AL.
• Court: Wisconsin Supreme Court

177 Wis. 541

188 N.W. 607

STATE EX REL. KEMPLINGER

v.WHYTE ET AL.

Supreme Court of Wisconsin.

June 6, 1922.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Mandamus by the State, on the relation of Alois Kemplinger, against W. F. Whyte and others, to compel the issuance to relator of an embalmer's license. From a judgment quashing the alternative writ, relator appeals. Affirmed.

Action of mandamus. The relator was on January 1, 1921, engaged in the business of undertaking in the city of Oshkosh. On September 9, 1921, he applied to the state board of health for an embalmer's license under section 1409--3, Stats. 1921, and complied with the requirements of the statute. The board refused to issue the license on the ground that sections 1409--1, 1409--3, and 1409--5 of the Statutes of 1921 enacted by the passage of chapter 464, Laws of 1921, were unconstitutional. So far as material to the questions raised by the appeal that statute reads:

“Section 1409--1. 1. The state board of health is hereby authorized and empowered to determine the qualifications necessary to enable any person to lawfully and properly embalm dead human bodies and disinfect the premises where such bodies may have been, and to adopt and enforce such other rules and regulations governing the education, examination, and licensing of funeral directors and embalmers as said board may consider necessary. The said board shall appoint a committee of examiners for the examining of embalmers, consisting of three licensed embalmers who, under the supervision of the state board of health, shall conduct all examinations and shall submit to the board its recommendations. The state board of health shall issue an embalmer's license to all persons who successfully pass such examination. No person shall embalm any dead human body, unless he or she shall hold a valid, unrevoked and unexpired license from the Wisconsin state board of health authorizing him or her to practice the art of embalming. It shall be unlawful for any person not a licensed undertaker, funeral director or embalmer, as herein provided, to act as an embalmer, assistant embalmer, undertaker or funeral director, or to prepare dead human bodies for burial, cremation, or transportation, except under the immediate and personal direction of a licensed embalmer, and any person practicing the art of embalming, or advertising or holding himself out to the public as an embalmer, or undertaker, or funeral director, or using any other title intending to imply or designate him or her as an embalmer, undertaker or funeral director by card, sign, solicitation or otherwise without first obtaining a license from the state board of health, shall be deemed guilty of a violation of this section. Nothing in this section shall prohibit a person for caring for and burying the deceased members of his own family or caring for and burying the dead without compensation.

2. The term ‘embalming’ as used in this section shall be taken to mean the disinfection or preservation of the dead human body, entire or in part, by the use of chemical substance, embalmer's fluids or gases on the body, or by the introduction of the same into the body, by either arterial or cavity embalming or hypodermic injection of fluid ordinarily used in embalming. The finding of any such chemical substance, fluid or gas, ordinarily used in embalming, or any trace, evidence or appearance thereof upon a dead human body, the use of which is prohibited by law, except by a licensed embalmer, or the placing thereof upon a dead human body by any person who is not a holder of a valid, unrevoked and unexpired embalmers' license from the state board of health, shall constitute prima facie evidence of the violation of the terms of this section: Provided, that nothing in this section shall apply to any assistant embalmer who prepares dead human bodies for burial or cremation under the personal supervision of a licensed embalmer. Any undertaker or funeral director who on January 1, 1921, was engaged in the undertaking business shall be licensed by the state board of health without examination upon the payment to the state board of health of the fee required by section 1409--3.”

The relator thereupon petitioned for a writ of mandamus to compel the board to issue him a license. An alternative writ was issued, and the board, through the attorney general, moved to quash the writ. From a judgment quashing the writ the relator appealed.Bouck, Hilton, Kluwin & Dempsey, of Oshkosh, for appellant.

Wm. J. Morgan, Atty. Gen., and Ralph M. Hoyt, Deputy Atty. Gen., for respondents.

VINJE, C. J. (after stating the facts as above).

The appeal raises the question of the constitutionality of chapter 464 of the Laws of 1921, appearing in the Revised Statutes of 1921 in chapter 76cc under the title “Practice of Embalming.” Chapter 464 declares the act to be one “relating to the licensing of embalmers.”

[1] It is argued by the appellant that the words “undertaker” and “embalmer” are used synonymously in the statute, that both may be regulated and licensed, that the practice of embalming has become practically universal, and that the public interest is promoted by the statutory regulation of undertakers. If it be conceded that the words “undertaker” and “embalmer” are used interchangeably, then it follows that an undertaker cannot carry on his business as such without an embalmer's license; and, if they are not used interchangeably, it likewise follows that an undertaker must have an embalmer's license before he can conduct an undertaker's business. So the question is presented: Can the Legislature require an embalmer's license from an undertaker as a condition for pursuing the latter calling? For the purposes of the...