State v. Gateway Mortuaries, Inc.

• Decision Date: 31 March 1930
• Docket Number: 6581.
• Citation: 287 P. 156,87 Mont. 225
• Parties: STATE v. GATEWAY MORTUARIES, Inc., et al.
• Court: Montana Supreme Court

287 P. 156

87 Mont. 225

STATE v. GATEWAY MORTUARIES, Inc., et al.

No. 6581.

Supreme Court of Montana

March 31, 1930

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

The Gateway Mortuaries, Incorporated, and Pat R. Gagner were convicted of violating an act prohibiting antemortem burial contracts not made in contemplation of imminent death, and they appeal.

Reversed with directions.

MATTHEWS and FORD, JJ., dissenting.

Murch & Wuerthner, of Great Falls, and Carl J. Christian, of Butte for appellants.

L. A Foot, Atty. Gen., and L. V. Ketter, Asst. Atty. Gen., for the State.

Henry C. Smith and E. G. Toomey, both of Helena, and Harry H. Parsons, of Missoula, amici curiæ.

CALLAWAY C.J.

The Gateway Mortuaries, Incorporated, a Montana corporation, and Pat R. Gagner, its agent, have appealed from a judgment of conviction on a charge of violating the provisions of chapter 88 of the Laws of 1929. The first section of chapter 88, hereafter referred to as the act, reads as follows:

"All written contracts or agreements hereafter made for the performance of personal services in connection with the preparation for burial or cremation, or the burial or cremation, of dead human bodies, made prior to the death of the persons whose bodies are to be buried or cremated, when said written contract or agreement is not made in contemplation of the imminent death of said persons, are hereby declared to be against the public policy of the State of Montana and to be unlawful and void."

Section 2 provides that the term "personal services" shall be held to include the embalming, or other preservation of dead human bodies, the cremation of the same, furnishing caskets, burial vaults, providing means of transportation to be used in connection with burials, or any other services in connection therewith that are usually performed by undertakers, and contains the proviso that the independent sale of caskets or burial vaults when not made in connection with a contract covering other services above mentioned shall not be held to be within the term "personal services."

Section 3 provides that one violating the provisions of the act shall be guilty of a misdemeanor, and upon conviction, shall be punished for each offense by a fine of not to exceed $1,000, or by imprisonment in the county jail for not more than one year, or both.

After the act became effective, defendants induced M. G. O'Malley of Butte to enter into a written contract for the burial of himself, his wife, and his father-in-law, George Dimnent, the death of no one of whom was imminent, the consideration for the contract being the sum of $45 paid by O'Malley, and the future burial of each of the persons named, on the basis of "cost plus ten per cent." for materials furnished, and "a reasonable allowance for personal services rendered," use of hearse and autos "together with estimated proportionate part of legitimate business and overhead expenses of the company." Although, at the time the contract was executed, he was apparently in good health, two weeks thereafter Dimnent died. He was buried by the company pursuant to the contract. Prosecution followed, with the result indicated above.

As counsel agree, a perfect case is presented for testing the validity of the act. Counsel for defendants argue that the act is obnoxious to the Fifth and Fourteenth Amendments and section 27 of art. 3 of our state Constitution, which declare that no person shall be deprived of life, liberty, or property without due process of law, and that provision of the Fourteenth Amendment which guaranties the equal protection of the laws, and of section 3 of art. 3 of the state Constitution which provides that "all persons are born equally free, and have certain natural, essential, and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties, of acquiring, possessing, and protecting property, and of seeking and obtaining their safety and happiness in all lawful ways."

Essentially the main question is whether the Legislative Assembly in prohibiting the contracts described in the act, and declaring the public policy of the state with reference thereto, transgressed its constitutional powers. The act rests upon an attempt to exercise the police power of the state. Does it bear a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare? Liggett Co. v. Baldridge, 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed. 204.

Public policy is that principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good. Page on Contracts, Sup., § 672; Lawson v. Cobban, 38 Mont. 138, 99 P. 128; Spaulding v. Maillet, 57 Mont. 318, 188 P. 377.

What is the public policy of a state, and what is contrary to it, is not to be measured by the private convictions or notions of the persons who happen to be exercising judicial functions, but by reference to the enactments of the lawmaking power, and, in the absence of them, to the decisions of the courts. When, however, the Legislature has spoken upon a particular subject and within the limits of its constitutional powers, its utterance is the public policy of the state. Mr. Chief Justice Brantly in MacGinniss v. Boston & Mont. C. C. & S. M. Co., 29 Mont. 428, 75 P. 89, and Parchen v. Chessman, 49 Mont. 426, 142 P. 631, 146 P. 469, Ann. Cas. 1916A, 681.

An act of the Legislature is presumed to be valid; every intendment is in favor of upholding its constitutionality; it will not be condemned unless its invalidity is shown beyond a reasonable doubt; but when it appears that an act manifestly violates a constitutional guaranty, the court will not hesitate to pronounce the act void. Gas Products Co. v. Rankin, 63 Mont. 372, 207 P. 993; Hale v. County Treasurer, 82 Mont. 98, 265 P. 6.

Unless there is a clear and palpable abuse of power a court will not substitute its judgment for legislative discretion. Local authorities are presumed to be familiar with local conditions and to know the needs of the community. Allion v. City of Toledo, 99 Ohio St. 416, 124 N.E. 237, 6 A. L. R. 426, and exhaustive note.

The right to contract is vouchsafed to every citizen by the law of the land if the subject of the contract is a lawful one, the persons making the same are competent to make it, and the exercise of the right does no injury to the public. Pittsburg C., C. & St. L. Ry. Co. v. Carmody, 188 Ky. 588, 222 S.W. 1070, 12 A. L. R. 469; 12 C.J. 949.

The right of private contract is no small part of the liberty of the citizen, as Mr. Justice Shiras said in Baltimore & O. S.W. R. Co. v. Voigt, 176 U.S. 498, 20 S.Ct. 385, 387, 44 L.Ed. 560, in which the learned justice quoted the language of Sir George Jessel, M. R., in Printing, etc., Co. v. Sampson, L. R. 19 Eq. 465: "It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider,-that you are not lightly to interfere with this freedom of contract."

Said Mr. Justice Pitney in Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 243, 59 L.Ed. 441, L. R. A. 1915C, 960: "Included in the right of personal liberty and the right of private property-partaking of the nature of each-is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense. The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money."

The Supreme Court of Tennessee in Moyers v. City of Memphis, 135 Tenn. 263, 186 S.W. 105, 112, Ann. Cas. 1918C, 854, declared: "The liberty of contract is one of the inalienable rights of a citizen. The right to pursue a lawful calling embraces the right to enter into all contracts proper, necessary, and essential to the carrying out of the purpose of such calling. * * *"

In Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832, the Supreme Court said that the "liberty," mentioned in the Fourteenth Amendment, includes the right to enter into all contracts which may be proper, necessary, and essential in carrying out to a successful conclusion a lawful calling. And see Chas. Wolff Packing Co. v. Court of Industrial Relations of Kansas, 262 U.S. 522, 43 S.Ct. 630, 67 L.Ed. 1103, 27 A. L. R. 1280; People v. Holder, 53 Cal.App. 45, 199 P. 832; Hyatt v. Blackwell Lumber Co., 31 Idaho, 452, 173 P. 1083, 1 A. L. R. 1663; Hall v. State, 100 Neb. 84, 158 N.W. 362, L. R. A. 1916F, 136; Minnesota Wheat Growers' Ass'n v. Radke, 163 Minn. 403, 204 N.W. 314; People v. Chicago, Mil. & St. P. R. R. Co., 306 Ill. 486. 138 N.E. 155, 28 A. L. R. 610.

Nevertheless the right to contract under any and all circumstances is not absolute. Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785, 24 A. L. R. 1238. "While it may be conceded that, generally speaking, among the inalienable rights of the citizen is that of the liberty of contract, yet such liberty is not absolute and...