State Ex Rel. Bigham v. State Board of Embalming , 297 Mo. 607 ( 1923 )

Relators prior to April 30, 1922, were licensed undertakers and embalmers engaged in business at Neosho, under the firm name of Bigham Undertaking Company. On May 22, 1922, they sent to the secretary of the State Board of Embalmers a check for six dollars to renew their license which had under the statute expired April 30, 1922. The fee was returned to them by the secretary with the statement that their license had expired May 1st, and a renewal of same required a re-examination and the payment of a fee of $10. Later the secretary notified relators that the board would meet at the Baltimore Hotel in Kansas City, June 26, 1922, "for the benefit of those whose license had been annulled through failure to renew the same within the time specified by law"; and that a return of their application filled out and accompanied by a $10 fee would indicate that the relators would attend for examination. The relators notified the secretary that they would not attend and again submit to an examination. To this was added a comment upon rule 6 of the board's regulations and a request that its action be reconsidered and that relators be permitted to pay the renewal fee required upon a timely application therefor. This communication was not answered, and thereafter the board did not recognize the relators as licensed embalmers.

Rule 6 of the regulations of the board is as follows: "On and after our regular meeting in May, 1917, all renewal fees shall become due and payable on the 1st day of May of each year, without regard to the date of the license and the failure to pay the renewal by May 1st shall act as an annulment of such license, and to procure another license such embalmer shall make written application to the board for a new license, accompany the same with a fee of $10 and present himself or herself for examination at a regular meeting of the board."

The board is authorized under the fifth subdivision of Section 5302, Revised Statutes 1919: "To adopt rules, regulations and by-laws from time to time, not inconsistent with the laws of this State or of the United States, whereby the performance of the duties of said board and the practice of embalming of dead human bodies shall be regulated."

Under Section 5303, Revised Statutes 1919, as amended, Laws 1921, p. 391, it is provided in effect that all persons now engaged or desiring to engage in the practice of embalming dead human bodies shall make a written application to the State Board of Embalming, accompanied by a fee of $10, for a license, and shall present himself or herself before said Board at such time and place as may be fixed for examination, and if it be found that the applicant possesses the requirements prescribed by the statute a license shall be issued.

While the foregoing section does not define the term for which the license shall be granted this limitation appears in the succeeding Section 5304, Revised Statutes 1919, as amended, Laws 1921, p. 392, as follows: "Every registered embalmer, who desires to continue the practice of his profession, shall annually thereafter, during the time he shall continue in such practice, on such date as said board may determine, pay the secretary of said board a fee of $3 for the renewal of registration."

After five or six years of compliance with rule 6 relators have reached the conclusion, as indicated by their petition, that the board has misinterpreted and misapplied said rule, in that, to employ relators' language, "the board interprets said rule to mean that said renewal license fees become due and payable for the ensuing year on the first day of May each year, and if not paid by that date the license of any embalmer failing to comply is at once annulled and the holder compelled to make application for new license."

Relators' contention is "that the reasonable and correct interpretation of said rule 6 is that said renewal license fees become due and payable on May first of each year, and if not paid by the first of May following, the holder thereof forfeits his license by annulment for failure to pay such fees, and must thereafter make application for a new license, if he wishes to practice the art of embalming in this State."

Whether the foregoing is a correct statement of the board's construction of its rule as well as the construction given to it by the relators must be determined by the facts. Although the rule may be invalid in part or as a whole, if it appears that the board, in this matter, did not act in conformity therewith and the statute under which it did act contains sufficient power and authority to support the board's action, and if by such action relators are deprived of no right to which they are entitled under the law, then the alternative writ must be held to have been improvidently issued and the prayer of the relators denied.

It is conceded that that the relators' license expired on the 30th day of April, 1922. They were required under the statute (Sec. 5304, supra) to make application for a renewal of same before its expiration. This they did not do. Whether the board formally annulled the license after its expiration is immaterial. It was thereafter, so far as it was able to confer any power upon or invest the relators with any privilege, as inert as the dust "in the tombs of all the Capulets." This being true under Section 5303, supra, relators were required to make written application to the board accompanied by the required fee, present themselves before it and if upon examination they were found to possess the qualifications required, they were to be licensed as embalmers. The facts do not show that in any particular the board exceeded these express statutory powers. On the contrary its conduct throughout is characterized as exceedingly fair in affording the relators ample opportunity to renew their license. In what manner, therefore, has any clear legal right of the relators been denied which it was the duty of the respondents to grant? Absent this essential and there is no substantial resting place upon which to base the application for this writ (State ex rel. Kern v. Stone, 269 Mo. 334; Adair Dr. Dist. v. Quincy Ry. Co., 280 Mo. 244; State ex rel. Pub. Service Comm. v. Mo. Pac. Ry. Co., 280 Mo. 456), which has been characterized as a "hard and fast unreasoning writ, reserved for extraordinary emergencies." [State ex rel. v. K.C. Gas Co.,254 Mo. 515.]

It is a mistaken conception of the nature of any calling, professional, commercial or industrial, that it is invested with such sanctity as to exempt it from reasonable legal regulations. The ever-expanding exercise of the police power manifested in the enactment of regulatory statutes, embracing every possible vocation, demonstrates the fallacy of this conception. The purpose of such statutes is in some instances to encourage efficiency and in others to promote sanitation, whereby in the first incompetency may be eliminated and in the second the public health preserved.

However much, therefore, we may decry the growing tendency to increase the number of the boards, commissions and bureaus as promotive of a system of paternalism destructive of individual effort, such legislation is immune from judicial regulation unless the power interferes with the inherent rights of the citizen.

It is not an issue in this case but, in passing, it may be said that the statutes defining the powers of the Embalming Board are not to be thus characterized. A re-examination of one who has permitted his license to expire is not an oppressive requirement or an invasion of an inherent right. It affords the board an opportunity to determine whether under that feeling of security afforded by a license renewable upon a mere application, the applicant has not become inefficient through mental inertia.

The fee required of a first applicant or of one seeking a license after forfeiture, is not unreasonable. It is necessary in the economical administration of public affairs that each department created by law should so far as reasonably possible be authorized to charge such fees for services rendered as will enable the department to be self-sustaining. The fee required in this instance does not accomplish more than this result. Furthermore it is not in excess of fees for like services charged by other departments.

Neither under the issues submitted therefore, or those which might have been submitted had the validity of the statute been questioned, is there any ground for the issuance of this writ and it is denied. All concur.