Beatty v. State Bd. of Undertakers , 352 Pa. 565 ( 1945 )

The opinion of the Court states that "In the present case neither the jurisdiction nor the regularity of the proceedings is challenged." As I understood the oral argument of appellant's counsel and read his brief, his entire attack consists of his contention that the statute under which the State Board of Undertakers operates confers no jurisdiction on the Board to enter an order such as the one which gave rise to the proceeding now under review. As I agree with the appellant's contention, I have no alternative but to dissent from the action of the Court.

The pertinent statute is the Act of June 10, 1931, P. L. 485,63 P. S. § 478a et seq. which, as its title states, requires and regulates "the examination, licensure, and registration of persons, and registration of corporations, engaging in the care, preparation, and disposition of the bodies of deceased persons; and providing penalties." The administration of the Act is committed to the State Board of Undertakers. As defined by the Act, the term "board", as used therein, "mean[s] the State Board of Undertakers of this Commonwealth" which was created by the Act of June 7, 1895, P. L. 167, 71 P. S. § 1161.

The appellant was registered under the Act of 1931, cit. supra, with the State Board of Undertakers as a "student apprentice". That term is specifically defined by Sec. 1 (d) of the Act as meaning "any person operating under or with an undertaker for the purpose of learning such business or profession to the end that he may become a licensed undertaker." (Emphasis supplied). Section 4 of the Act provides for the registration and licensing of undertakers.

Section 8 of the Act provides that "The board, by a majority vote thereof, may refuse to grant, refuse to renew, suspend or revoke a license of any applicant or licensee for the following reasons:. . . ." (Emphasis supplied). Then follow eight lettered paragraphs, each of which specifies grounds for an exercise by the Board of the power conferred upon it by Section 8 for the performance of the duty therein imposed.

The Board proceeded against the appellant under Section 8 for the revocation of his registration as a "student apprentice", charging him specifically with offenses specified in sub-paragraph (e) of Section 8 as follows: "Gross incompetency, negligence or misconduct in the carrying on of such business or profession." The appellant did not hold nor had he ever held alicense from the Board as an undertaker.

A reading of Section 8 at once discloses that the power thereby conferred upon the State Board of Undertakers is a power to refuse to grant or renew or to suspend or revoke alicense which, under the Act, only a qualified undertaker may hold. Nowhere does Section 8 make any reference to the registration applicable to the case of a "student apprentice". Nor is there any express authority elsewhere in the Act for the revocation of the registration of a "student apprentice". The majority opinion perceives this but holds that "the authority to 'revoke a license of any applicant or licensee' impliedly extends to such a registration." (Emphasis supplied). But, Section 8 is penal and, being so, we may not extend it by implication beyond its precise meaning:Commonwealth ex rel. v. Krickbaum, 199 Pa. 351, 355-356,49 A. 68; Trainer v. Wolfe, 140 Pa. 279, 289, 21 A. 391.

It is wrong for a court, by construction, to amend and thus extend a statute. And, that is particularly so where the statute involved is penal. No matter how desirable it may be, as a matter of governmental policy, to have registrations of student apprentices to undertakers made subject to cancellation or revocation for cause at the instance of the State Board of Undertakers, any provision to that end is for the legislature to supply when it sees fit so to do. It seems clear that it did not do it by Section 8 of the Act of 1931, cit. supra, under which the Board purported to act in this case.

I should, therefore, reverse the order of the court below and direct that the order of the State Board of Undertakers, revoking the appellant's registration as a student apprentice, be vacated.

Mr. Justice PATTERSON joins in this dissent.