Wyeth v. Thomas

• Decision Date: 07 January 1909
• Citation: 86 N.E. 925,200 Mass. 474
• Parties: WYETH v. THOMAS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 474

86 N.E. 925

WYETH v. THOMAS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1909

Jan. 7 1909.

COUNSEL

Arthur P. Stone, for petitioner.

Gilbert A. A. Pevey, for respondents.

OPINION

KNOWLTON C.J.

This is a petition for a writ of mandamus to compel the respondents the board of health of the city of Cambridge, to grant the petitioner a license as an undertaker. Among the facts agreed are the following:

'Second. That the petitioner, Benjamin F. Wyeth, is an inhabitant of Cambridge, is an undertaker by trade, and has been for 46 years engaged in the trade of undertaker in various capacities, and has carried on for some years past the business of undertaking under the name of Benjamin F. Wyeth; that said undertaking business as conducted by the petitioner is a profitable one, and it is his support and the support of his family; that the petitioner is the sexton of the First Church in Cambridge, and the members in attendance at that church and other residents of Cambridge and the vicinity have been accustomed from time to time to engage him to perform such services as may be required in connection with the burial of the dead.

'Third. That the petitioner, Benjamin F. Wyeth, is a competent undertaker and is well versed in the duties and practices of that trade or business, except in so far as he is ignorant of the processes of embalming.

'Fourth. That the petitioner, Benjamin F. Wyeth, does not hold himself out to the public as one skilled in the methods of embalming dead bodies, and has not, and never has had, and has not applied for, a certificate or license from the board of registration in embalming to enable him to engage in the business of embalming dead bodies.

'Fifth. That a large part of the petitioner's trade or business does not require a knowledge of embalming, and in many instances the petitioner is not required nor directed to embalm the bodies of the dead intrusted to his care.

'Sixth. That in all cases in which the said Benjamin F. Wyeth has had occasion to have the bodies of the dead embalmed, he has, since January 1, 1906, procured the services of an embalmer duly registered by the board of registration in embalming, or he has intrusted the work to some servant or agent in his employ who was duly registered as aforesaid.

'Seventh. That the respondents to this petition or their predecessors in office had, up to and including the 1st day of May, 1907, always given to the said Benjamin F. Wyeth a license to act as undertaker upon his application therefor.'

From other facts in the case, and from the respondent's answer, it appears that the only reason for refusing to grant the petitioner's license as an undertaker is that he is not licensed as an embalmer. He cannot obtain a license as an embalmer without making application under rule 2, section 1, adopted by the board of registration in embalming, and complying with the requirements of the section, which is as follows:

'The applicant must have taken a regular course at a reputable school of embalming whose course of instruction is satisfactory to this board, and must have had not less than a year and a half of experience in active work with a practicing embalmer.' The question of law presented by the report of the single justice is whether the respondent's refusal to grant a license, solely for this reason, is legal.

St. 1905, p. 483, c. 473 is 'An act to establish a board of registration in embalming.' Under section 6 the board is to adopt rules and regulations, not inconsistent with the provisions of this act and the statutes of the commonwealth, governing the care and disposition of human dead bodies, and the business of embalming.' Under the authority of this section the board has adopted rules and regulations whereby they assume to put the whole business of the management of funerals and the burial of the dead in the hands of persons holding a license as embalmers from this board. The first part of rule 9, § 2, is as follows: 'No permits for removal, burial or disinterment shall be issued by boards of health, city or town clerks, selectmen of a town, or any other persons authorized to issue burial permits to any person or persons who have not been registered and received a certificate from the state board of registration in embalming.' Under this rule no one can bury lawfully the dead body of a former member of his family unless the permit for burial is obtained by a licensee of this board. No one can perform the ordinary duties of an undertaker without first having procured a license as an embalmer. No one can obtain a permit for the disinterment of a dead body for any cause, at any time, however long after the burial, unless he is a licensed embalmer. Surely the fitness of a person to receive a permit for the disinterment of a dead body cannot depend upon his knowledge or ignorance of the process of embalming. The question is presented whether there is any warrant under the Constitution and the laws for this interference with the liberties of the people.

The respondents in their answer rest their defense largely upon the action of the board of registration in embalming, and adopt as their own the views upon which this action presumably was founded.

The right to enjoy life, liberty and the pursuit of happiness is secured to every one under the Constitution of Massachusetts. This includes the right to pursue any proper vocation to obtain a livelihood. Substantially the same right is secured also by the Constitution of the United States, which does not permit a state to deprive any person of life, liberty or property without due process of law. The nature of this right has been stated and illustrated in many cases. Com. v. Strauss, 191 Mass. 545, 78 N.E. 136, 11 L. R. A. (N. S.) 968; Com. v. Perry, 155 Mass. 117, 28 N.E. 1126, 14 L. R. A. 325, 31 Am. St. Rep. 533; Winthrop v. New England Chocolate Company, 180 Mass. 464, 62 N.E. 969; Austin v. Murray, 16 Pick. 121; Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937; Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455.

There is no doubt that the refusal to permit one to engage in the business of an undertaker is a violation of this right, unless there is some good reason for the refusal, and the refusal to permit one to bury the dead body of his relative or friend, except under an unreasonable limitation, is also an interference with a private right that is not allowable under the Constitution of the commonwealth or the Constitution of the United States.

In the exercise of the police power, such kinds of business as require regulation in the interest of the public health, the public safety or the public morals, and perhaps in a strict sense in the interest of the public welfare, may be regulated by the state, and no other interference of the public to the detriment of an individual is permissible.

The...