State v. Rice
| Decision Date | 04 April 1911 |
| Citation | 80 A. 1026,115 Md. 317 |
| Parties | STATE v. RICE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Frederick County; Hammond Urner, James B Henderson, and John C. Motter, Judges.
Marion C. Rice was indicted for carrying on or conducting the business of undertaking in Frederick county without a license, as required by statute. Judgment for defendant, and the State appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, PEARCE, and PATTISON, JJ.
Isaac Lobe Straus, Atty. Gen., for the State.
H Dorsey Etchison, for appellee.
The appellee was indicted in the circuit court for Frederick county under Act 1902, c. 160, chapter 389 Acts 1904, and as further amended by chapter 496, acts 1908 charged, in effect, with carrying on or conducting the business of undertaking in Frederick county without having first procured a license as required by the said statute and the amendments thereto. The traverser demurred to the indictment, upon the ground that the act as amended is unconstitutional. The demurrer was sustained, and judgment for the traverser was entered thereon. It is from that judgment of the lower court that this appeal is taken.
Chapter 160, Acts 1902, consists of 14 sections. The first section provides for the creation of a board to consist of seven members, and to be known as the "State Board of Undertakers of Maryland." The second section states the required qualifications of its members, the manner and method of their appointment, the filling of vacancies, and the tenure of office. Section 3 prescribes the oath to be taken by the members of the board. Sections 4 and 5 relate to the organization of the board and the appointment of secretary. Section 6 regulates the times of meeting, and states the number necessary to constitute a quorum. Section 7 requires all persons, firms, and corporations, and their assistants and employés, as therein provided, engaged in the business of undertaking at the time of the passage of the act, to register with said board on or before the 1st day of July following. Section 8 provides that before any person, copartnership, or corporation should, after the passage of the act, engage in the business of undertaking, and before any member of any such copartnership, assistant, or employé of any such person, copartnership or corporation, or officer of such corporation whose duties would engage him or her in the care, preparation, disposition, or burial of the dead, should discharge the duties of such business employment or office, and, before any of those named in the preceding section (section seven) who were engaged in the said business or employment at the time of the passage of the act, and who failed to register within the time named in the last preceding section, should continue in said business, they should apply to the board of undertakers for a license to practice such business and employment, and should the board find, upon examination, that the applicant is of good moral character, possessed of skill and knowledge of such business, and has a reasonable knowledge of sanitation, preservation of the dead, disinfecting the bodies of deceased persons, apartments, clothing, and bedding, in case of death resulting from infectious or contagious diseases, the board should issue to said applicant, upon the payment of a fee of $20, a license to practice the business of undertaking. It also provided that licenses should issue to corporations when applied for, and that one license should suffice for all the members of a copartnership when issued in the firm name. Section 9 provides for the revocation of licenses. Under section 10 all certificates issued under section 7 and all licenses issued under section 8 expired on the 30th day of April next ensuing the date of their issue, and thereafter before any person, copartnership, or corporation then engaged in the business of undertaking, or before any of the assistants, employés, or officers previously designated should continue in such business or employment, application should be made to the board for a license to carry on such business or to engage in the practice thereof, and, upon the payment of a fee of $5, a license similar to the one issued under section 8 should be issued by said board to such applicant. Section 11 provides that all violations of the act are misdemeanors, and provides penalties therefor. Section 12 states the licenses to be nontransferable. Section 13 provides where the fees and fines shall go, and the purposes for which they shall be used. Section 14 requires the board to report annually to the Governor of the state, stating what the same shall contain and what disposition shall be made of any funds left in their hands, and in conclusion provides that the act shall apply only to Baltimore city.
Chapter 389, Acts 1904, repealed and reenacted only sections 1, 8, and 9 of chapter 160, Acts 1902. Section 1 was amended to the extent of increasing the membership of said board from 7 to 8. The amendment to section 8 requires that the board of examiners shall upon examination find in addition to what was required of the applicant under section 8, Acts 1902, "that he has been employed at least two years prior to said application by some person, firm or corporation actively engaged in the work of practical embalming and undertaking *** and is possessed of skill and knowledge of the said business." The amendment to section 9 states the character of the testimony and the manner in which it shall be taken by the board in proceedings instituted for the revocation of the license. Chapter 496, Acts 1908, repealed and re-enacted with amendments sections 2, 5, 7, 11, and 14, c. 160, Acts 1902, and also repealed and re-enacted with amendments section 8 of that act as amended by chapter 389, Acts 1904, and enacted two additional sections known as 14a and 14b. The amendment to section 2 provides for the appointment by the Governor of seven members of the board, of whom at least five shall be residents of Baltimore city and two residents of the counties. Section 5 is amended so as to provide for the appointment of inspectors, and fixes the compensation they are to receive. Section 7 is amended so as to require all persons, copartnerships, and corporations engaged at the time of the passage of the act (chapter 496, Acts 1908) in the business of undertaking outside of the city of Baltimore, in the state of Maryland, as were designated by section 7, c. 160, Acts 1902, to register with the board on or before the 1st day of July following the passage of the act of 1908. Section 8 is only amended to the extent of requiring the applicant to apply by petition in which he shall state whether he proposes to practice the said business as principal or as an assistant or employé. Section 11 is amended so as to provide punishment for superintendents of cemeteries and other persons for the commission of the offenses therein named. Section 14 is amended by striking out the clause limiting the act to Baltimore city, and to the extent of including within its provisions the inspectors, the appointment of whom is provided for in section 5 of this act. Section 14a provides that the provisions of the act shall apply to Baltimore city and to all counties other than those named in that section, and Frederick county is not so named. Section 14b provides that no member of the board shall be appointed from a county exempt from the provisions of this act. Sections 7 and 14a of chapter 496, Acts 1908, were amended by chapter 399, Acts 1910. Section 14a was amended so as to exempt from the general act only the counties of Calvert, St. Mary's, and Charles. Section 7 was amended by requiring the registration of those then engaged in the business of undertaking and their assistants and employés, as previously designated, outside of the city of Baltimore and the eight counties which had been brought within the provisions of the said act of 1908. These acts of 1910, however, were passed after the commission of the alleged offense charged against the traverser. No objection was made to the formal sufficiency of the indictment. The demurrer only went to the validity of the statute under which the traverser was indicted; the traverser contending that the statute contravened both the federal and state Constitutions by reason of the burdens and conditions imposed upon him before he could obtain a license permitting him to engage in the business of undertaking. The burdens or conditions complained of appear in section 8, Acts 1904, repealed and re-enacted by chapter 496, Acts 1908, which are not found in section 8, c. 160, Acts 1902, and consist of the additional requirements and qualifications imposed upon and exacted of the applicant that the board shall find upon due examination "that the applicant has been employed at least two years prior to said application by some person, firm or corporation actively engaged in the work of practical embalming and undertaking *** and is possessed of skill and knowledge of the said business." As was said by the learned court below: "If the act is a valid exercise of legislative authority, it must be upon the ground that the qualifications it exacts for the practice of the vocation with which it deals have a reasonable relation to the public health or welfare."
The court below, as we gather from its opinion, construed the language of the statute that we have quoted above as meaning that it was necessary that the applicant, before he could obtain the license of undertaker, should be possessed of skill and knowledge in the business of embalming as well as in the business of undertaking, that the words "said business" mean the business of embalming and undertaking, and are not, as contended for by the...
To continue reading
Request your trial