Trinka Services, Inc. v. State Bd. of Mortuary Science

• Citation: 122 A.2d 668,40 N.J.Super. 238
• Decision Date: 07 May 1956
• Docket Number: No. L--282,L--282
• Parties: TRINKA SERVICES, Inc., a corporation of New Jersey, and Edwin F. Trinka, Plaintiffs, v. STATE BOARD OF MORTUARY SCIENCE of New Jersey, Defendant. . Law Division
• Court: Superior Court of New Jersey

Page 238

40 N.J.Super. 238

122 A.2d 668

TRINKA SERVICES, Inc., a corporation of New Jersey, and Edwin F. Trinka, Plaintiffs, v. STATE BOARD OF MORTUARY SCIENCE of New Jersey, Defendant.

No. L--282.

Superior Court of New Jersey Law Division.

Decided May 7, 1956.

Read & Dolliver, Plainfield, for plaintiffs (Robert M. Read, Plainfield, appearing).

Grover C. Richman, Jr., Atty. Gen., for defendant (Thomas P. Cook, Deputy Atty. Gen., appearing).

HUGHES, J.S.C.

This action, in which the issues have been submitted on a stipulation of fact, challenges the constitutionality of parts of the Mortuary Science Act, chapter 340 of the Laws of 1952 (secs. 1--50, N.J.S.A. 45:7--32 to 45:7--81), and certain rules adopted by the State Board of Mortuary Science of New Jersey. The ground on which the court is asked to declare its judgment voiding such statutes and rules is based, in the constitutional sense, upon the contention that their requirements, insofar as they forbid the conducting of this business within the corporate frame, are unduly restrictive of private enterprise and property and an improper exercise of the police power. The statute (N.J.S.A. 45:7--33) states a new legislative concept that such science, and the practice of embalming and funeral directing, comprise a profession rather than a business. The sense of the State's contention here, upholding the classification expressed in this legislative Fiat, as not merely one of nomenclature but of substance, argues that if the realities of the relationship (of such practitioner to the public) embrace obligations such as those reflected in the lawyer-client or doctor-patient relationship, then the police power extends to their enclosure within the protective and restrictive containment of regulations appertaining to the professions. In such case, the State urges that the statute properly prevents the practice of such as a corporate entity, distinguished in name and fact from the individual identity of the practitioner.

It is obvious that it is the nature of the subject matter and the end to be served that determine the quality and content of the regulatory power, Abelson's, Inc. v. New Jersey State Board of Optometrists, 5 N.J. 412, 420, 75 A.2d 867, 870, 22 A.L.R.2d 929 (1950), and thus an examination of the field of action sought to be regulated is necessary. It seldom has been doubted that the police power extends to the regulation, for the public welfare, of the learned arts, Inter alia, to protect the public against ignorance, incapacity, deception and fraud. And insofar as 'mortuary science' involves the preparation of human remains for display and interment, involving proficiency in the fields of anatomy, chemistry, cosmetic technique and the like, there is obviously a relationship with the public health and welfare entitling the State, in the exercise of the police power, to surround that practice with rigid requirements of training, education, licensing and like precautions in the public interest.

Of course it is true that the category of the 'learned professions,' once confined to theology, law and medicine, has broadened 'in keeping with the diffusion of scientific learning and the need of specialized knowledge in the functioning of our ever-expanding and complex society.' Abelson's Inc., v. New Jersey State Board of Optometrists, supra. Nevertheless, no case has been called to my attention so classifying undertaking or the mortuary science. Moreover, the technical or scientific work of the funeral director or undertaker is only a fractional part of his effort. Beyond this, as is well known, he provides ('sells,' although referred to by him with proper and commendable dignity as an element of his 'service') a variety of personal property ranging from the casket to wearing apparel, memorial cards and the like. In this respect, such activity is a trade or business and has often been judicially described as such. Babcock v. Laidlaw, 113 N.J.Eq. 318, 166 A. 632 (Ch.1933); Marrocco v. Board of Adjustment of City of Passaic, 5 N.J.Super. 94, 68 A.2d 470 (App.Div.1949); Labash v. Board of Embalmers, etc., New Jersey, 8 N.J.Super. 260, 74 A.2d 316 (App.Div.1950), Id., 12 N.J.Super. 334, 79 A.2d 693 (App.Div.1951); Frizen v. Poppy, 17 N.J.Super. 390, 86 A.2d 134 (Ch.Div.1952); People v. Ringe, 197 N.Y. 143, 90 N.E. 451, 27 L.R.A.,N.S., 528 (Ct.App.1910); Building Com'r of Town of Brookline v. McManus, 263 Mass. 270, 160 N.E. 887 (Sup.Jud.Ct.1928); Bond v. Cooke, 237 App.Div. 229, 262 N.Y.S. 199 (App.Div.1932); Busse & Borgmann Co. v. Upchurch, 60 Ohio App. 349, 21 N.E.2d 349, 352 (...