The citizen. (Frederick City, Md.) 1895-1923, 1910-11-11
OPINIONS IN UNDERTAKER'S S
TEST CASE.
No License Required and De-
murrer Sustained.

In decision handed down on Satur
day last, the 5th inst, the Undertakes
Act, requiring license from those en-.
gagged in the practice of undertaking
and embalming was declared unconsti
tutional. The decision in part is as
follows:
The question to be determined under
the demurrer to the indictment, whose
formal sufficiency has not been ques.
toned, is whether the statutory require
ment of license, in view of the condi-
tons imposed, is constitutional
1T is within the police power of the
State to regulate the business of under
taking TO the end that it may be con-
Quoted to observe in its prosecution such
precautions as may be requisite for
| the protection of public health. ANY
restriction or regulation that can be
regarded as reasonably necessary to ac-
complish this purpose may be validv
prescribed by the Legislature, but be-
| yond the reasonable necessities of the
public welfare, no interference with the
ordinary right of the individual to pursue
legitimate vocation can be constitu-
tionally extended
The reasonableness of the qualifca-
tons prescribed by the Undertakers
Act as originally enacted is obvious.
No one can doubt the propriety of re-
qulring of the licensee skill and knowl-
edge of the business and a reasonable
knowledge of sanitation, disinfection,
etc. The relation of this provision to
the public health is plainly apparent.
But there is no such relation to be dis
covered in the requirement, added by
amendments, that the applicant shall
have been employed for two years prior
to his application by a practical under
taker. Except in those cases where
embalming is desired for a special rea-
son, we know of nothing connected with
the duties of an undertaken that calls for
the work of licensed embalmer.
We, therefore, hold that Section s, of
Chapter 100, OF the Acts of 1902, as
amended by the later acts to which we
have referred is unconstitutional and
void because it is in violation to the
Fourteenth Amendment of the Federal
Constitution and Article 23 of the Dec
laration of Rights of Maryland, which
protect the liberties and property rights
Of the citizen against undue legislative
interference.
1T now remains for us to consider
how far the Undertakers' Law, as orig
inally enacted and the amendatory pro-
visions other than those included in sec
tion 8, are affected by the invalidity of
that section, occasioned by the amend
ments under the repeating and re-enact
ing statutes. The rule has been settled
in our Court of Appeals, that when the
repeal of prior law is inserted in a
statnte repeating and amending it, and
the amending law is itself void, the pro-
vision for the repeal of the prior law is
in itself imperative. 1t therefore follows
that Section of the law, as enacted in
1902. which did not exact from the licen-
see skill and experience in the work OF
embalming has remained in force by
reason of the invalidlty of the repeating
and re-enacting statute, by which it
was sought to be amended. Can Sec
ton ID. as amended by the Act of 1908,
extending the law to Frederick and
other counties be given effect while Sec
tion s, as amended by the same Act,
must be nullifed?
''The Benzinger Case is authority for
the principle that whether one part of a
statute repeating and amending prior
laws will be allowed to stand, while an
other part is declared void, depends
upon the question whether by the amend
atory law it is apparent that the Legis-
lature intended both parts of the statute
to be inseparable portions of the same
system. In this instance we think that it
is perfectly clear that the Legislature
did not intend the provisions extending
the act to certain of the counties to be
operative independently of the provis-
ions of Section s, as amended.
Our conclusion. therefore, is that the
amendment extending the Undertakers'
Act beyond Baltimore City cannot be
sustained in view OF the invalidity of
Section s, as amended. For the reasons
stated, Section 7, also must be regarded
as being effective only in form in which
it was Incorporated in the Act of 1909.
Sections I, 2, 6, and II, as amended do
not appear to be in any way dependent
upon the validity of Section 8, as
amended and they are not affected by
this decision.
ut results that in our opinion the
traverser is not amenable to any pro-
vision of the law requiring license to
practice the business of undertaking,
and it is accordingly ordered this 5th
day Of November, A. d., 1910, that his
demurrer to the indictment be and is
hereby sustained"
Messrs. William c. Stockman and
Marion c. Rice were indicted by the
grand jury for not complying with the
provisions of the act
Mr.. H. Dorsey Etchison was counsel
for Messrs. Stockman and Rice.