People v. Harrison

The demurrer evidently was interposed to contest the constitutionality of the statute forbidding the practice of the

The first legislation in the state regulating embalming and requiring a license therefor was chapter 555 of the Laws of 1898, which created the “board of embalming examiners of the state of New York,” and provided for examinations with respect to the qualifications of the applicants for a license to engage “in the business or practice of embalming,” and for their registration, and prohibited embalming without a license from said board. Section 4 of that statute provided for the issuance as therein provided of licenses without examination to persons then engaged in the business, and sections 5 and 6 required an application for a license and an examination of any persons thereafter desiring to engage in that business; but it prescribed no period of apprenticeship or previous experience as a condition of entering the examination or receiving such license. By section 9 of the act practicing without a license was prohibited. Chapter 498 of the Laws of 1904 inserted in that statute section 6a relating to licensing undertakers, which, so far as appears, was the first legislation on that subject. That section required those thus engaged in the business of undertaking and holding licenses as embalmers, “or engaged in such business with a licensed embalmer” and desiring to continue in the undertaking business, to present on or before January 1, 1905, an application to the state board of embalming examiners for a license to practice undertaking, and as no examination was required it was evidently contemplated that the license should be granted to such persons without examination; but it prohibited any one from thereafter engaging in business as an undertaker without having been duly licensed as an embalmer and having been employed as an assistant to a licensed undertaker “continuously for a period of at least three years,” and having also duly applied for and obtained a license as an undertaker, which license, however, it was contemplated was to be issued on proof of the qualifications specified without examination. Section 6a was amended by chapter 572 of the Laws of 1905, by modifying the requirement that at least one member of a firm engaged in the business should obtain a license and by providing that every member of such a firm should obtain a license, and in this form by chapter 49 of the Laws of 1909, being chapter 45 of the Consolidated Laws, it became section 295 of the Public Health Law.

The constitutionality of the provisions of section 6a as thus amended was presented for judicial decision in People v. Ringe, 197 N. Y. 143 , 90 N. E. 451 , 27 L. R. A. (N. S.) 528 , 18 Ann. Cas. 474, and they were declared to be unconstitutional in so far as they required a license as a condition of engaging in business as an undertaker, for the information in that case charged the defendant, as does the information in the case at bar, with having engaged in business as an undertaker without having a license, and he was convicted on the trial; but the conviction was reversed by the Appellate Division ( 125 App. Div. 592 , 110 N. Y. Supp. 74 ), and the reversal affirmed by the Court of Appeals. The opinion of the Court of Appeals recognized and declared the right of the Legislature to provide for the licensing of those engaged in the business of embalming and as undertakers; but

“A statute passed pursuant to the police power should be reasonable. Its real purpose must be to protect the public health, morals, or general welfare. A statute cannot, under .the guise of the police power, but really to affect some purpose not within such power, arbitrarily interfere with a person or a property right. The statute under consideration unnecessarily interferes in several particulars with that liberty of person and property guaranteed by the Constitution.”

The court then, citing and following Wyeth v. Board of Health, 200 Mass. 474 , 86 N. E. 925 , 23 L. R. A. (N. S.) 147 , 128 Am. St. Rep. 439 , declared that the public health did not require that a person should be prohibited from carrying on the business of an undertaker merely because he was not a licensed embalmer. The court then proceeds to consider the provisions of the act forbidding any person acting as an undertaker unless he has been employed as an assistant to a licensed undertaker for a period of at least three years, and declared that the provision unnecessarily interfered with the common-law right of any person to engage in a lawful business for the reason that “it makes a particular form of acquiring skill and knowledge essential, and forfeits the right to count the time so engaged in that particular education at each time when there is a bréale in the continuity of the service,” and then, applying the doctrine of Schnaier v. Navarre Hotel & Importation Co., 182 N. Y. 83 , 74 N. E. 561 , 70 L. R. A. 722 , 108 Am. St. Rep. 790 , declared the provisions of the said section 6a in so far as they prohibited a firm from engaging in the business or practice of undertaking unless each member of the firm is a licensed undertaker, unconstitutional. The opinion closes as follows:

“We cannot refrain from the thought that the act in question was conceived and promulgated in the interests of those then engaged in the undertaking business and that the relation which the business bears to the general health, morals, and welfare of the state had much less influence upon its originators than the prospective monopoly that could be exercised with the aid of its provisions. We sustain the authority of the Legislature to pass a statute to license and regulate the business of undertakers to protect the health, morals, and general welfare of the state, but hold that the statute in question, so far as considered by us, is an unnecessary and unwarrantable interference with constitutional rights.”

The next legislation on the subject was enacted by chapter 841 of the Laws of 1911, which amended said section 295. It is not necessary to consider the effect of that amendment, for the question here presented arose on the provisions of the statute as they existed at the time of the commission .of the alleged offense on the 20th day of March, 1914. The next amendment of the section was made by said chapter 71 of the Laws of 1913, which was in force at the time of the alleged offense. Said section as amended, so far as material to the present inquiry, provides that any person actually engaged in the business of undertaking at the time the amendment took effect, who desired to continue in such business, should on or before the 31st day of January, 1913, file with tire state board of embalming examiners an application as therein provided for authority to do business as an undertaker; that

The difference between the provisions of the statute as they existed when People v. Ringe was decided by the Court of Appeals and as they were at the time of the commission of the alleged offense, claimed to be material, is the elimination of the provision to the effect that no person could be granted a license as an undertaker unless he held a license as an embalmer, and the amendment of the provision with respect to firms, as already stated, and the substitution for the provision requiring three years’ consecutive service as an apprentice of the provision requiring two years’ service in the aggregate in that capacity.

[1] It is contended on the part of the people that these changes in the law fully meet the criticism of the Court of Appeals in People v. Ringe, supra. I am of opinion that they do not. The statute still requires that the requisite skill and knowledge shall be obtained in a particular manner, to wit, by service as a registered apprentice for at least two years in all cases where the application for a license is made after June 1, 1915, and service as a registered apprentice for two

[2] The 'statute in its present form is subject to the criticism that it aims at the undertaking business rather than at those conducting funerals, for it does not require that funerals shall be conducted under the immediate supervision of a licensed undertaker, and plainly contemplates that they may be conducted by his employés, who are not even registered apprentices, excepting in the case of funerals of those dying of a communicable disease, and in such cases the registered apprentice is authorized to assume the care and preparation of the bodies for burial or transportation, although he has been subjected to no examination and has obtained no license, and he may perform these duties as his first acts as an employé or apprentice of an undertaker.

[3, 4] The learned Deputy Attorney General draws attention to the fact that a bill designed by the Legislature to overcome the objections presented by the decision of the Court of Appeals in People v. Ringe, supra, was vetoed by the Executive on the authority of that decision shortly before he signed the amendment to section 295 enacted in 1911, and that the section was further amended in 1913, as indicating due deliberation on the part of the Legislature and the Executive, and an effort to enact the law in tire interests of the public health and welfare, and he rightly contends that every reasonable presumption must be indulged in in favor of the validity of the statute. Nevertheless it does not appear that there was any legislative investigation on tire subject, or that the Legislature had before it evidence tending to show that the public health or welfare would be promoted by such legislation; and since the enactment is an encroachment upon the right of the individual to engage in a lawful business, it must have some apparent relation to the public health or welfare to warrant its enactment (Colon v. Lisle, 153 N. Y. 188 , 47 N.

In State v. Walker, 48 Wash. 8 , 92 Pac. 775 , 15 Ann. Gas. 257, the Supreme Court of Washington declared a statute requiring an apprenticeship for two years with a qualified and practicing barber as a condition precedent to obtaining a certificate as a barber void, on the ground that competency only was required, and that it was noi within the province of the Legislature to provide that it should be attained in a particular manner. In Smith v. Texas, 233 U. S. 630 , 34 Sup. Ct 681 , 58 L. Ed. 1129 , L. R. A. 1915D, 677, Ann. Cas. 1915D, 420, the Supreme Court, in declaring a statute of Texas, which provided that no, person should act as a conductor on a freight traih who had not served for two years as a brakeman or conductor on a freight train, unconstitutional, discussed at length the constitutional rights of citizens and the power of the Legislatures, and, among other things, said:

“None of the cases sustains the proposition that, under the power to secure the public safety, a privileged class can be created, and be then given a monopoly of the right to work in a special or favored position. Such a statute would shut the door, without, a hearing, upon many persons and classes of persons who were competent to serve, and would deprive them of the liberty to work in a calling they were qualified to fill with safety to the public and benefit to themselves. * * * So that the case distinctly raises the ' question as to whether a statute, in permitting certain competent men to serve, can lay down a test which absolutely prohibits other competent men from entering the same private employment. It would seem that to ask the question is to answer it, and the answer in no way denies the right of the state to require examinations to tost the fitness and capacity of brakemen, firemen, engineers, and conductors to enter upon a service fraught with so much of risk to themselves and to the public. But all men are entitled to the equal protection of the law in their right to work for the support of themselves and families. A statute which permits the brakeman to act, because he is presumptively competent, and prohibits the employment of engineers and all others who can affirmatively prove that they are likewise competent, is not confined to securing the public safety, but denies to many the liberty of contract granted to brakemen and operates to establish rules of promotion in a private employment. If brakemen only are allowed the right of appointment to the position of conductors, then a privilege is given to them which is denied all other citizens of the United States. If the statute can fix the class from which conductors on freight trains shall be taken, another statute could limit the class from which brakemen and conductors on passenger trains could be selected, and so, progressively, the whole matter, as to who could enter the railroad service, and who could go from one position to another, would be regulated by statute.”

These observations are in the main applicable here.

[5] I am of opinion that no prosecution for engaging in the business of an undertaker without a license can be sustained under the provisions of this section, for if the provisions with respect to the apprenticeship are unconstitutional, there remain nothing but the provisions requiring that those engaged in the business at the time the act took effect shall obtain a license, and it is not to be presumed that the Legislature would have enacted the provisions requiring only

It follows, therefore, that the judgment should be affirmed. Settle order on notice.

CLARKE and SCOTT, JJ., concur. INGRAHAM, P. J., and DOWLING, J., dissent.