156 N.Y.S. 679 | N.Y. App. Div. | 1915
The demurrer evidently was interposed to contest the constitutionality of the statute forbidding the practice of the business of undertaking without a license, and the only questions. presented by the appeal relate to the constitutionality of the 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), 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), 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 Judge Chase, writing for a unanimous court, after recognizing this power of the Legislature in the interests of the public health, said: “ 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. Cambridge Board of Health (200 Mass. 474), 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 embalm er. 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
The next legislation on the subject was enacted by chapter 841 of the Laws of 1911, which amended said section 296. 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 the State Board of Embalming Examiners an application as therein provided for authority to do business as an undertaker; that every undertaker who should take into his employ an apprentice should report that fact to the State Board within three months, and such other information as might be required by the Board; that the Board should issue to such apprentice “when his character and qualifications are satisfactory, a certificate of registration as a ' registered apprentice,”” and that any applicant for a license who was not actu
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 pro
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 years, or practical experience with an undertaker, prior to the time the act as thus amended took effect, acceptable to the Board in lieu of such service as a registered apprentice, where the application for a license is made on or prior to June 1,1915. It was, as the Court of Appeals declared in People v. Binge (supra), competent for the Legislature to regulate the business of undertaking, and to subject undertakers to an examination, and to require that they obtain licenses; but I am unable to perceive any theory upon which the public health or welfare requires, as a condition precedent to carrying on the business of an undertaker, not involving the embalming of dead bodies, service as a registered apprentice with an undertaker for a period of two years. The public health and welfare may require, as the Legislature has required, an examination of applicants for such licenses with respect to sanitation, disinfection and the preparation and care of bodies for burial or transportation; and the examination might well be extended to the laws and health regulations applicable to the care and interment of the dead, depending upon the cause of death; but it is, I think, manifest that the knowledge essential to qualify one to enter an examination for a license as an undertaker might be acquired in a medical or other school for such purpose, or by special training and observation, without actually serving as an apprentice, and in any event the requirement of two years’ service in such capacity is unreasonable.
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
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 the 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 the 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. Lisk, 153 N. Y. 188; People v. Gillson, 109 id. 389; Matter of Jacobs, 98 id. 98; People v. Beattie, 96 App. Div. 383; State v. Donaldson, 41 Minn. 74); and we see in its provisions, as enacted, none in so far as this long term of apprenticeship is required. In State v. Walker (48 Wash. 8) the Supreme Court of Washington declared the part of 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 not within the province of the Legislature to provide that it should be attained in a particular manner. In
“ 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
These observations are in the main applicable here.
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 remains 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 he presumed that the Legislature would have enacted the provisions requiring only those then engaged in the business to procure licenses, for that would he an unjust discrimination, and it is manifest that all provisions of the section are connected and dependent upon one another, and were designed to accomplish the purpose of requiring all engaging in business as undertakers to procure licenses, and, therefore, some of the provisions being unconstitutional, the entire enactment must fall. (Jones v. Jones, 104 N. Y. 234; People ex rel. City of Rochester v. Briggs, 50 id. 553; Warren v. Mayor, 68 Mass. 84; Cooley Const. Lim. [7th ed.] 247; Black Const. Law [3d ed.], 73.)
It follows, therefore, that the judgment should be affirmed.
Clarke and Scott, JJ., concurred; Ingraham, P. J., and Dowling, J., dissented.
Judgment affirmed. Order to be settled on notice.