Walton v. Commonwealth
| Decision Date | 01 March 1948 |
| Docket Number | Record No. 3334. |
| Citation | 187 Va. 275 |
| Parties | W. J. WALTON v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
1. UNDERTAKERS — Regulation and Control — Subject to Police Power. — The undertaking business is one of a public or quasi-public nature, closely related to the health, safety and general welfare of a community, and is therefore a business which under the police power may be subjected to regulation and control.
2. UNDERTAKERS — Power to Establish Boards of Undertaking and Embalming. — A State has the power to establish boards of undertaking and embalming such as has been done in Virginia.
3. UNDERTAKERS — Licenses — Power of State to Require and Fix Qualifications. — A State may require undertakers and embalmers to secure licenses before they engage in the practice of their profession, and as a condition to securing a license applicants may be required to possess certain qualifications such as being graduates of certain prescribed schools where the profession is taught.
4. UNDERTAKERS — Purpose of Code Sections 1715-1736. — The purpose of sections 1715-1736 of the Code of 1942 (Michie), regulating the practice of embalming and funeral directing, was to prohibit the practice of the profession or the conduct of the business of embalming and funeral directing in Virginia without a license.
5. UNDERTAKERS — Practicing Profession without License — Single Act Not Made Violation by Code Section 1721. — In the instant case, a prosecution for violating sections 1715-1736 of the Code of 1942 (Michie), regulating the practice of embalming and funeral directing, accused, who was licensed in Tennessee but not in Virginia, conducted one funeral and burial in Virginia. The Commonwealth contended that under the language of section 1721 that "no assistant, no member of any firm, and no officer or employee of any corporation shall engage in the care, preparation, disposal and burial of dead human bodies, or the management of burials, or the discharge of any of the duties of a funeral director, unless he shall be a licensed funeral director under the provisions of this chapter", even a single act in the discharge of any of the duties of a funeral director would constitute a violation of the statute.
Held: That there was no merit in this contention.
6. UNDERTAKERS — Licenses — Firm Member or Manager of Corporation — Meaning of Code Section 1721. — The meaning and intent of the legislature in section 1721 of the Code of 1943 (Michie), requiring a member of a firm or the manager of a corporation engaged in funeral directing to be licensed, was that if a member of a firm or the manager of a corporation desired to engage in the practice or business of funeral directing in Virginia he would be obliged to secure a license under the provisions of chapter 72.
7. UNDERTAKERS — Practicing Profession without License — Conducting One Funeral in State — Case at Bar. — In the instant case, a prosecution for violation of sections 1715-1736 of the Code of 1942 (Michie), regulating the practice of embalming and funeral directing, the warrant charged that accused unlawfully practiced the profession of a funeral director, undertaker and embalmer without a license. Accused, who was licensed in Tennessee but not in Virginia, conducted one funeral and burial in Virginia after embalming the body in Tennessee, but he did not maintain a place of business in Virginia, he sought no business in Virginia and he was not shown to have practiced his profession or conducted his business in the Commonwealth.
Held: That considering the statutory definition of "funeral director" in section 1726 with the penalty provisions in section 1723 and the other sections of chapter 72, and the evidence in the case, accused did not engage in the practice or business of embalming or funeral directing in Virginia without a license.
8. WORDS AND PHRASES — "Doing Business". — The terms "doing business" or "conducting a business" include the performance of a continued series of acts, and the idea of continuity or sustained activity is implicit in the terms.
Error to a judgment of the Circuit Court of Wise county. Hon. George Morton, judge presiding.
The opinion states the case.
Campbell & Campbell and Bandy & Bandy, for the plaintiff in error.
Harvey B. Apperson, Attorney General, and Ballard Baker, for the Commonwealth.
The plaintiff in error, W. J. Walton, was tried upon a criminal warrant in which he was charged with a violation of Chapter 72 of the Code of Virginia, 1942 (Michie), (secs. 1715 to 1736, inc.), which treats of embalming and funeral directing. The case was heard by the judge without the intervention of a jury and Walton was found guilty "as charged in plaintiff's warrant", and his punishment fixed at a fine of $50.00.
The original warrant in the case charged that "W. J. Walton, in said county, did on the 25th day of November, 1946, unlawfully remove and prepare for burial the body of Ella Wright Cole, and did bury the same in Wise county, Virginia, without having a license so to do from the Virginia State Board of Embalmers and Funeral Directors." Just before the trial the attorney for the Commonwealth moved to amend the warrant, which was done over the objection of counsel for the accused. As amended, the warrant reads that Walton "did unlawfully practice the profession of a funeral director, undertaker and embalmer, and as such did remove and prepare for burial the body of Ella Wright Cole, and did bury the same in Wise county, Virginia, without having a license so to do from the Virginia State Board of Embalmers and Funeral Directors * * *."
The attorney for the Commonwealth in offering the amendment stated to the court that he did not think the original warrant was sufficient to charge the crime.
Walton is a resident of Kingsport, Tennessee, where he is employed by the Huff Funeral Home. By profession he is an embalmer and funeral director and licensed as such under the laws of the State of Tennessee, but he holds no license to practice that business or profession from the Virginia State Board of Embalmers and Funeral Directors.
Mrs. Ella Wright Cole died at the Appalachian General Hospital in Appalachia, Virginia, and her body was removed from the hospital, not by Walton, but by others, to Kingsport, Tennessee. Walton had nothing to do with the removal of the body. When the body reached Kingsport Walton embalmed it. From the evidence this seems to have been the only service performed by him. There is no evidence that he engaged in the other preparations of the body for burial. He did return the body to Big Stone Gap, Virginia, after it had been embalmed and prepared for burial in Kingsport, Tennessee, and he had charge of the funeral and burial at Big Stone Gap. It is contended that, inasmuch as he conducted this one funeral and burial in Virginia without a license from the Virginia State Board of Embalmers and Funeral Directors, he was guilty of a violation of the Virginia Embalmers Act. Does the one isolated act constitute a violation of the Virginia statute regulating the embalming and interment of dead human bodies, and constitute the unlawful practice of the profession of a funeral director, undertaker and embalmer?
The court found the accused guilty "as charged in the plaintiff's warrant". The charge in the amended warrant as we have seen was that Walton did "unlawful practice the profession of a funeral director, undertaker and embalmer * * *."
There are four assignments of error but we think the determinative one is that the evidence is not sufficient to sustain a conviction.
1, 2 Statutes of the kind under consideration generally have been considered valid. The undertaking business is one of a public or quasi-public nature, closely related to the health, safety and general welfare of a community, and is therefore a business which under the police power may be subjected to regulation and control. In the handling of dead bodies there is a possibility of contagion and certain sanitary practices must be carried out. A State has the power to establish boards of undertaking and embalming such as has been done in Virginia.
3 It is also well recognized that a State may require undertakers and embalmers to secure licenses before they engage in the practice of their profession, and as a condition to securing a license applicants may be required to possess certain qualifications such as being graduates of certain prescribed schools where the profession is taught. People Ringe, 197 N.Y. 143, 90 N.E. 451, 27 L.R.A., N.S., 528, and Prata Undertaking Co. State Board of Embalming, etc., 55 R.I. 454, 182 A. 808, 104 A.L.R. 389, Annotations in 23 A.L.R., p. 71, and 104 A.L.R., p. 402; 54 Am. Jur., Undertakers and Embalmers, section 3, p. 508, and section 5, p. 511.
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