Commonwealth v. Hanley , 1900 Pa. Super. LEXIS 338 ( 1900 )

Opinion by

Rice, P. J.,

The defendant was indicted and convicted under the 7th section of the Act of June 7, 1895, P. L. 167, which makes it a misdemeanor for any person to practice or hold himself out as practicing the business of undertaking or the care, preparation, disposition and burial of the bodies of deceased persons, without having caused his name, residence and place of business to be registered with the state board of undertakers, as provided in the 5th section of the act, or having obtained license as provided in the 6th section. Before sentence he moved in arrest of judgment upon the grounds, first, that the indictment charged no violation of the laws of the commonwealth; second, that the act under which the indictment was drawn is unconstitutional ; third, that the verdict of the jury was not justified by the evidence. The overruling of this motion and the entering of judgment upon the verdict are the only matters assigned for error.

Where the sole complaint is, that the evidence was insufficient to sustain the verdict, the remedy of the party in the trial court is by motion for a new trial, not by a motion in arrest of judgment. „ If he deems the evidence adduced by the plaintiff or the commonwealth insufficient in law, even if believed by the jury, to warrant a verdict against him, he may obtain a review in the appellate court by a request for binding instructions and excepting to, and assigning for error, the refusal so to charge. See as to criminal cases, Pauli v. Commonwealth, 89 Pa. 432. But if the granting of the motion in arrest of judgment, or the refusal of the motion, be the only matter assigned for error, the case will be reviewed on the record proper, and not on the sufficiency of the evidence. If authority is needed for these familiar and well-settled rules of practice, it will be found in Skinner v. Robeson, 4 Y. 375, Wilson v. Gray, 8 W. 25, Church v. Northern Central Railway, 45 Pa. 339, Aronson v. C. & P. R. R. Co., 70 Pa. 68, Schubkagel v. Dierstein, 131 Pa. 46, and 1 Br. T. & H. Pr. 769, 770. For this reason, as well as for the reason given by the learned judge of the court below in his opinion overruling the motion in arrest of judgment, we must decline to pass on the validity of the rule established by the state board of undertakers. We remark, however, that the manifest and sole purpose which the legislature had in view in the passage of this law was the preservation of the public health. It was plainly not its intention to give to a favored few a monopoly of the care and burial of the dead for hire. And if the state board refused to perform their duties, or if they established arbitrary and unreasonable rules, whereby the defendant was debarred of the right to apply for a license, and to have his qualifications to conduct the business of an undertaker passed upon, the law gave him a remedy. It is clear, however, that these questions of fact and law could not be determined by the court below in the trial of an indictment against the defendant for carrying on the business without first having obtained a license.

We see no defect in the form or substance of the indictment, therefore, the only remaining question is as to the constitutionality of the act under which it was framed.

Tiedeman, in his treatise on the Limitation of Police Power, p. 200, says of police regulation of skilled trades and learned professions : “ Where the successful prosecution of a calling requires a certain amount of technical knowledge and professional skill, and the lack of them in the practitioner will result in material damage to the one who employs him, it is a legitimate exercise of police power to prohibit any one from engaging in the calling, who has not previous^ been examined by the lawfully constituted authority and received a certificate in testimony of his qualification to practice the profession.” It is upon this principle, says the learned author, that statutes, which provide for the examination of those who wish to engage in the practice of the law, of medicine and surgery and of pharmacy are sustained. The validity of a law requiring those who wish to engage in the business or calling of undertaking to submit to such examination rests upon a broader and more secure foundation than that above suggested, if it be true, as determined by the legislature, that the proper prosecution of 'that business requires “ knowledge of sanitation, preservation of the dead, disinfecting the bodies of deceased persons, the apartment, clothing and bedding in cases of death from infectious or contagious diseases.” For, lack of skill and knowledge of these things in one who pursues this calling in large cities may result, not in mere material damage to the one who employs him, but in the spread of ■contagious and infectious diseases. The regulation of such a business, by requiring those who engage in it to have that skill and knowledge, the possession and use of which will result in diminishing the dangers from such diseases, and the lack of which may result in the spread of them, is clearly a legitimate exercise of police power. • We do not deem it necessary to discuss that question further.

But it is contended that it is a local or special law, because it is confined to those who engage in business in cities of the first, second and third classes. It is urged that it violates that provision of the constitution which forbids the legislature to pass any local or special law regulating trade. But we do not regard this law as a mere trade regulation. It is true, it does affect those engaging in a particular occupation and does not apply to all persons engaging in that occupation. It is equally plain, however, that the paramount object of the law is not to discriminate in favor of or against members of the class, but to protect the public health, and that, whilst it does not apply to all undertakers, it does apply to all undertakers of the same' class. In this respect it is plainly distinguishable from the act construed in Commonwealth v. Zacharias, 3 Pa. Superior Ct. 264. The effect upon the rights of those desiring to engage in this occupation is only incidental. It no more clearly discriminates between different members of the same class of persons than does a law requiring physicians or undertakers in cities to report deaths. Clearly, a law may impose a duty of that kind on such persons, which is not imposed on persons practicing the same profession or pursuing the same vocation in other portions of the state, without being a local or special law within the true intent and meaning of the constitutional provision under consideration.

It seems to us, therefore, that the provision of the constitution by which the validity of the law is to be tested, is that which forbids the legislature to pass any local or special law regulating the “ affairs ” of cities, and in applying that test the term “ affairs ” is to be given the broad signification which has been ascribed to it in Morrison v. Bachert and kindred cases. Even in the cases in which the strictest construction of this constitutional provision has been given, it has been conceded that upon some subjects there may be valid legislation for cities as distinguished from boroughs and townships. If it were not so, then, indeed, as was remarked in Wheeler v. Philadelphia, 77 Pa. 338, 350, would the machinery of the state government be so bolted and riveted down by the fundamental law as to be unable to perform its necessary functions. Amongst these subjects is the preservation of the public health. See Ruan Street, 132 Pa. 257, at p. 276. Speaking of a city regulation concerning the burial of the dead, the supreme judicial court of Massachusetts used language which may be quoted here, appropriately: “ That this necessary duty shall be performed, especially when undertaken for hire, by suitable and trustworthy persons, and that the moving of dead bodies through the public streets of a city shall be conducted with decency and safety, are obviously matters proper for municipal regulation, and which, as well as the mode of burial, may concern the public health to no slight extent: ” Commonwealth v. Goodrich, 95 Mass. 546, citing Austin v. Murray, 33 Mass. 121, and Commonwealth v. Fahey, 59 Mass. 108. Legislation upon that subject that would be necessary for cities might be wholly unnecessary, if not detrimental, in smaller communities, and we are not convinced that a law honestly intended and well calculated to diminish the dangers from contagious and infectious diseases by regulating the care and burial of the dead, or prescribing the qualifications of those who engage in that vocation, must apply alike to the smallest and most sparsely settled community as well as to the most densely populated city. We do not think this is the doctrine taught in any of the adjudicated cases. The Supreme Court has repeatedly declared that classification as a pretext for special or local legislation will not be sanctioned, and the cases are numerous in which attempts to evade the constitutional restrictions by this kind of special legislation, which of all forms is the most vicious, have been frustrated. On the other hand classification is not absolutely prohibited. “All legislation is necessarily based on a classification of its subjects, and when such classification is fairly made, laws enacted in conformity thereto cannot be properly characterized as either local or special: ” Ayars’s Appeal, 122 Pa. 266. “ It is settled law since Wheeler v. Philadelphia that classification based on genuine and substantial distinctions is within the constitutional power of the legislature and an act which applies to all the members of the class is general and not special: ” Sugar Notch Borough, 192 Pa. 349. It is equally well settled, that in cases of this character — that is cases involving the principle of classification — ■“ where no legislative effort to evade the restrictions appears, the courts will look beyond the mere form of the act and examine its true intent and effect in the light of the purpose of the constitutional restrictions: ” Commonwealth v. Gilligan, 195 Pa. 504; Clark’s Estate, 195 Pa. 520. See also, Commonwealth v. Muir, 1 Pa. Superior Ct. 578, Commonwealth v. Jones, 4 Pa. Superior Ct. 362, Commonwealth v. Clark, 10 Pa. Superior Ct. 507, Commonwealth v. Finn, 11 Pa. Superior Ct. 620, Read v. Clearfield, 12 Pa. Superior Ct. 419, and Commonwealth v. Beatty, ante, p. 5.

After a careful consideration of the question in the light of the principles of interpretation enunciated in the adjudicated cases, we concur with the learned judge of the court below in the conclusion that the act is not in violation of the true spirit and intent of the constitutional provisions relating to local or special legislation. This conclusion is so well supported, both by reason and authority, in the opinion filed by him, that further discussion of this feature of the case seems unnecessary.

The title of an act, since the constitutional amendment of 1864, must be regarded as a part of it, however it may have been before: Penna. R. Co. v. Riblet, 66 Pa. 164; Perldns v. Philadelphia, 156 Pa. 554. If the 5th section of this act be construed with reference to and in connection with the title, and the sections which follow, we do not think it can fairly be held that it was intended to apply to other undertakers tharr those doing business in cities of the first, second and third classes. But even if the words are to be given their broadest meaning and it be held that they apply to all undertakers, it does not necessarily follow that the whole act must be stricken down. Where the title of an act does not fully express its subject, the general rule is that only those provisions of the act not covered by the title are void: McGee’s Appeal, 114 Pa. 470; La Plume v. Gardner, 148 Pa. 192. The act of 1895 may well stand and effect the purpose for which it was enacted, even if the 5th section be restricted in its operation to the class of undertakers mentioned, or plainly referred to, in the title, and it be held void so far as it relates to others.

The judgment is affirmed and the record is remitted to the court below to the end that the sentence be carried into effect.