State v. Fremont Co-Op. Burial Ass'n
| Decision Date | 15 December 1936 |
| Docket Number | 43571. |
| Citation | 270 N.W. 320,222 Iowa 949 |
| Parties | STATE v. FREMONT CO-OPERATIVE BURIAL ASS'N. |
| Court | Iowa Supreme Court |
Appeal from District Court, Mahaska County; Dan W. Hamilton, Judge.
Action in equity to enjoin the defendant from practicing or engaging in the practice of embalming. From a decree in favor of the plaintiff and granting the injunction, the defendant appeals.
Affirmed.
H. S Life, of Oskaloosa, and Anthony TePaske, of Sioux Center, for appellant.
Edward L. O'Connor, Atty. Gen., and Devitt, Eichhorn & Devitt of Oskaloosa, for the State.
This action was brought by the State of Iowa to enjoin defendant the Fremont Co-operative Burial Association, from practicing or engaging in the practice of embalming in Iowa. Upon the trial of the case a decree was entered granting the injunction as prayed, and from this decree the defendant appeals.
It appears without dispute in the pleadings and in the evidence that the appellant association was organized under the provisions of chapter 390 of the 1927 Code of Iowa (section 8485-b1 et seq.), and that the purpose of the organization as stated in its articles of incorporation, was, " to supply its members with caskets, burial vaults, and burial supplies of every kind, character and nature; to own, maintain and operate funeral equipment of any and every character appurtenant to business of such nature; to conduct funerals and to do and perform any and all other things permissible under the law, necessary and desirable to properly serve the members of this corporation within the scope of the Corporation's activities." Article 9 of the articles of incorporation provides for a membership fee of $10. The articles of incorporation appear to place no restriction whatever upon the acquisition of membership except this membership fee. Article 21 of the by-laws, however, provides that " any member moving out of the territory, a distance of 35 miles from Fremont," may have his membership fee refunded; and article 23 of the by-laws provides that a prospective member who does not join the association until he has a death in the family, " shall not be permitted to join this association until he has paid into this organization a membership fee of fifteen ($15.00) Dollars."
The evidence appears to establish without dispute that, in conducting its business the appellant association owns a place of business in the town of Fremont, Iowa, where it keeps a stock of caskets, burial vaults, and burial supplies of every kind, including a hearse and other funeral equipment; that it purchases, out of the funds of the association, embalming fluids which are used by a licensed mortician employed by the association in embalming dead bodies; that it sells all such burial equipment, the use of its hearse and funeral equipment, and also the services of the licensed mortician employed by it; that such licensed mortician is paid a fixed salary by the association; and that the charges for all services performed by him, as well as all charges for burial equipment and services of the hearse and funeral equipment, are paid to and belong to the association.
It is the contention of the appellee that, in thus conducting its said business, the appellant association is engaged in the practice of embalming without having a license to do so and in violation of chapter 124-C1 of the 1935 Code of Iowa (section 2585-c1 et seq.). The contention is that the appellant, being a corporation, does not have and cannot procure a license to do embalming, and that, in the methods pursued by it in conducting its business, it is engaging in the practice of embalming.
It is not contended, and there is no evidence to show, that the actual work of embalming dead bodies or furnishing the actual services performed in connection with said bodies, is not done by a licensed embalmer, because it is admitted that such licensed embalmer is employed by the defendant corporation and does such work. The appellant admits in argument that a corporation cannot lawfully practice a profession, and that as a corporation, it could not engage in embalming without violating the law. Appellant contends, however, that the practice of a profession by a corporation is not here involved, and that the real question here presented is, whether the employment of a licensed embalmer, by an incorporated nonprofit making co-operative association, to render professional services as embalmer to its members only, constitutes the practice of the profession of embalming by the corporation. Impliedly, at least, the appellant appears to admit that, if the employment of the licensed embalmer by it, and the furnishing of his services to the public generally, were a part of the business conducted by it, there would be a violation of the statutes here involved. But appellant contends that, in this case, as the services of...
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