177 Wis. 541 | Wis. | 1922
The appeal raises the question of the constitutionality of ch. 464 of the Laws of 1921, appearing in the Statutes of 1921 in ch. 76cc under the title “Practice of Embalming/’ Ch. 464 declares the act to be one . . . “relating to the licensing of embalmers.”
It is argued by the appellant that the words “undertaker” and “embalmer” are used synonymously in the statute; that both may be regulated and licensed; that the practice of embalming has become practically universal; and that the public interest is promoted by the statutory regulation of undertakers.
If it be conceded that the words “undertaker” and “embalmer” are used interchangeably, then it follows that an undertaker cannot carry on his business as such without an embalmer’s license; and if they are not used interchangeably it likewise follows that an undertaker must have an embalmer’s license before he can conduct an undertaker’s business. So the question is presented, Can the legislature require an embalmer’s license from an undertaker as a condition for pursuing the latter calling? For the purposes of the present case it will be assumed that both undertakers and embalmers can be required to be licensed under reasonable regulations. But the precise question for determination is whether the business of an undertaker is so like unto or identical with that of an embalmer as to permit of them being put under one classification so that one cannot be an
Since embalming'is not compulsory, since it is not universally practiced, why require every undertaker to have
As was aptly stated by the supreme court of Massachusetts in Wyeth v. Cambridge Board of Health, 200 Mass. 474, 479, 86 N. E. 925, decided in 1909:
“Except in those cases where embalming is desired for a special reason, we know of nothing connected with the duties of an undertaker that calls for the work of a licensed embalmer. When such work is desired, a proper person can be procured to perform it. In cases generally it is not an essential part of the ditties of an undertaker, and it has no relation to the public health.”
The same view is also held by the court of appeals of New York in People v. Ringe, 197 N. Y. 143, 90 N. E. 451, decided in 1910, and by the court of appeals of Maryland in State v. Rice, 115 Md. 317, 80 Atl. 1026, Ann. Cas. 1913A, 1247, decided in 1911.
The provision of the statute that “any undertaker or funeral director who on January 1, 1921, was engaged in the undertaking business shall be licensed by the state board of health without examination,” is specially void for the reason that a person engaged in one kind of business, an undertaker, that bears no necessary relation to the qualifications of another business, an embalmer, is declared qualified for the latter. As has already been pointed out, an undertaker as such does not have to understand embalming.
We concur in the trial court’s opinion where he says:
“It is apparent from examination of ch. 464, Laws 1921, when viewed in the light of the statutes in force when this act was passed, that the single purpose of the act was to require that all undertakers, funeral directors, or embalmers should secure an embalmer’s license before they pursue their occupation, and that the legislature intended that all provisions of the act should be carried into effect as a whole and that each of the various provisions of the act were the inducement to and the compensation for the balance of the law. It follows that all of the provisions of ch. 464 must be held unconstitutional and void. It also follows that the attempt to repeal the law that existed before the passage of this act was ineffectual and that relator’s rights must be tested by the statutes as they existed prior to the passage of this act. Under these prior statutes undertakers were not*548 required to procure licenses. The reference in sec. 1409 — 10 to the revocation of the license of an undertaker seems to have resulted from the careless use of words, as no statute provides for the issuing of such a license.”
By the Court. — Judgment affirmed.