DRUMMEY v. STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS

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District Court of Appeal, First District, Division 2, California.

DRUMMEY et al. v. STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS et al.†

Civ. 10476.

Decided: September 20, 1937

Bianchi & Hyman and A. B. Bianchi, all of San Francisco, and Tinning & DeLap, of Martinez, for petitioners. Frank J. Barry, of Los Angeles, for respondents.

This is an appeal by the State Board of Funeral Directors and Embalmers and the members thereof from a judgment of the trial court ordering that a peremptory writ of mandamus issue commanding said board to dismiss certain proceedings against petitioners and to the use and enjoyment of their respective licenses. Another appeal was taken by petitioners from certain orders of the trial court with respect to their petitions for a writ of certiorari and a writ of prohibition. The appeal of petitioners may be dismissed as they have expressly abandoned said appeal. For the sake of clarity and brevity we will refer to parties as the petitioners and the board throughout this discussion.

Petitioner William P. Drummey was a duly licensed embalmer. Petitioner Aubrey Wilson was a duly licensed funeral director doing business under the name of Wilson & Kratzer. Petitioner Aubrey Wilson was also a duly licensed embalmer. Their licenses had been issued under the provisions of the Funeral Directors and Embalmers Law (Deering's General Laws Supp. 1933, Act 2318). Three separate complaints were filed with the board charging petitioners with unprofessional conduct as defined in said act and praying for the suspension or revocation of their respective licenses. Each complaint contained several counts in which the professional conduct was alleged to consist of solicitation under section 15 of said act. Said section provides in part: “The board shall also have the power to suspend or revoke licenses after proper hearing and notice to the licensee, upon such licensee being found guilty of any of the following acts or omissions: * * * 2. Unprofessional conduct which is hereby defined to include: * * * (c) Solicitation of human dead bodies by the licensee, his agents, assistants or employees, whether such solicitation occurs after death or while death is impending; providing, this shall not be deemed to prohibit general advertising.” After notice to petitioners, a hearing was had on all three complaints. Petitioners appeared at the hearing and while they were not represented by counsel, they were apprised of their right to be so represented. They expressed no desire to exercise that right, but proceeded to act for themselves and to cross–examine the witnesses. At the conclusion of the hearing, they were found guilty of several of the counts set forth in the respective complaints. An order based upon written findings was entered as to each complaint. The embalmer's license of each of petitioners was suspended for one year. The funeral director's license of petitioner Wilson was suspended for one year with a proviso that after ten days of said suspension, the licensee should be restored to good standing but should be immediately suspended for the remaining portion of the year upon the violation within two years of any of the provisions of the act.

Thereafter petitioner Drummey filed a petition for a writ of review seeking to review the proceedings whereby his embalmer's license was suspended. Petitioner Wilson filed a petition seeking to review the proceedings whereby his embalmer's license and also the funeral director's license of Wilson & Kratzer were suspended. The writs were issued and return was made. During the pendency of the proceedings, the Supreme Court handed down its decision in Standard Oil Co. v. State Board of Equalization, 6 Cal.(2d) 557, 59 P.(2d) 119. The proceedings having been consolidated for hearing in the trial court, petitioners filed an amendment to their petitions seeking to invoke the remedies of either review, prohibition, or mandamus. Demurrers were interposed to the petitions as thus amended. The trial court sustained the demurrers to the petitions for writs of review (Standard Oil Co. v. State Board of Equalization, supra), and to the petitions for writs of prohibition (Whitten v. California State Board of Optometry (Cal.Sup.) 65 P.(2d) 1296), but overruled the demurrers to the petitions for writs of mandamus and ordered that an alternative writ issue. Upon the subsequent hearing, the matter was submitted upon the record on file and the trial court ordered that a peremptory writ of mandamus issue as above indicated.

As findings were waived and none were made, we must look to the allegations of the petitions and to the points made in petitioners' briefs in an effort to ascertain the theory upon which the trial court ordered the issuance of the writ. In their petitions, the attack was directed both at the act itself and at the proceedings had thereunder. The same attack is made in the briefs on file.

With respect to the act, petitioners claim that said subdivision (c) relating to solicitation is unconstitutional. It is contended that (1) it is uncertain, vague, and indefinite as to the language and purpose; and (2) it is arbitrary and has no reasonable relation to the protection of public health, safety, or welfare. We find no merit in these contentions. We start with the settled rules that all presumptions are in favor of the constitutionality of the act; that all doubts are to be resolved in favor of and not against its validity; and that the conflict with the Constitution must be clear before it will be declared invalid. 5 Cal.Jur. 628, and cases cited. We find nothing uncertain, vague, or indefinite in the language or purpose of the act relating to the solicitation of human dead bodies. The main purpose of the act is expressed in the title, which reads, in part, “An act regulating funeral directors and embalmers and the transportation of and traffic in human dead bodies.” It provides for the licensing of funeral directors and embalmers and for the suspension of such licenses when the licensee is found guilty of unprofessional conduct including the “solicitation of human dead bodies by the licensee, his agents, assistants or employees, whether such solicitation occurs after death or while death is impending; providing that this shall not be deemed to prohibit general advertising.” The purpose of this portion of the act is obvious and the language is sufficiently certain to carry out such purpose. It is not aimed at preventing general advertising, but it is aimed at preventing the direct solicitation of particular dead human bodies by overzealous funeral directors and embalmers in the conduct of their business. It covers the period while death is impending as well as the period after death. Any person of ordinary intelligence may readily ascertain the meaning of said provision, and there appears to be no difficulty in giving the language a reasonable and practical construction. As was said in County of Tulare v. City of Dinuba, 188 Cal. 664, at page 677, 206 P. 983, 988: “A statute cannot be held void for uncertainty, if any reasonable and practical construction can be given to its language. Mere difficulty in ascertaining its meaning, or the fact that it is susceptible of different interpretations will not render it nugatory. Doubts as to its construction will not justify us in disregarding it.” See, also, Pacific Coast Dairy v. Police Court, 214 Cal. 668, 8 P.(2d) 140, 80 A.L.R. 1217.

Nor do we find anything arbitrary about said provision of the act. On the contrary, it appears to be a reasonable regulation bearing definite relation to the public welfare. The business of both funeral directors and embalmers is subject to regulation under the police power and we are of the opinion that the Legislature acted within its province in providing for the protection of the public from the annoyance of direct solicitation of the bodies of their loved ones during the time of anxiety and sorrow. Prata Undertaking Co. v. State Bd. of E. & F. Directing, 55 R.I. 454, 182 A. 808, 104 A.L.R. 389. See, also, People v. Ringe, 197 N.Y. 143, 90 N.E. 451, 27 L.R.A.(N.S.) 528, 18 Ann.Cas. 474. State ex rel. Bigham v. State Board of Embalming, 297 Mo. 607, 250 S.W. 44.

Petitioners further contend that they “were not afforded due process either by law or by the board.” The first portion of this contention constitutes a further attack upon the constitutionality of the act. But the act provides that a license may be suspended or revoked only “after proper hearing and notice to the licensee.” This was sufficient “for it is well settled that due process does not require any particular form or method of procedure. It is sufficient if reasonable notice and reasonable opportunity to be heard and to present any claim or defense are afforded; due regard being had to the nature of the proceedings and the character of rights which may be affected by it.” Eley v. Gamble (C.C.A.) 75 F.(2d) 171, 173; see, also, Enterprise Irr. District v. Tri–State Land Co., 92 Neb. 121, 138 N.W. 171; Ramsay v. Shelton, 329 Ill. 432, 160 N.E. 769.

The second portion of said contention relates to the actual proceedings before the board. It appears, however, that petitioner Drummey was personally served with notice and that petitioner Wilson had actual notice by receiving a copy thereof which was left at his place of business. These notices were received at a date which gave notice a reasonable time before the hearing was held and both petitioners actually appeared at the hearing. Both were given the opportunity to be heard and present any defense to the complaints. We are therefore of the opinion that the contention that they were not afforded due process by the board may not be sustained.

Further attacks are made by petitioners upon the proceedings before the board. They contend that the complaint in each instance did not state facts sufficient to show a violation of the act. This contention appears to be likewise without merit. Each complaint contained several counts and in each count it was alleged that the person charged did, on or about a specified date and at a specified place “solicit for preparation for burial and for burial the dead body of ––––– (naming the person), the said ––––– (naming the person) being then dead.” Conceding the rule that proceedings before administrative boards are not ordinarily governed by technical rules of pleading and practice, petitioners nevertheless state that “it is required that the complaint be sufficient to fully advise on its face what the charge is.” Assuming that petitioners correctly state the requirement, it appears that said requirement was met by the complaints here.

The only remaining contention of petitioners is that there was “no competent evidence to support action of board.” In treating this contention, we will confine the discussion to the action of the board in suspending the embalmer's license of petitioner Drummey and in suspending the funeral director's license of petitioner Wilson, doing business under the name of Wilson & Kratzer. We do this for the reason that the parties are agreed that all of the acts alleged in all counts of the complaints, other than the so–called Shannon count, occurred before the provision in question was written into the act. It is further agreed that the Shannon count was not included in the complaint seeking the suspension of the embalmer's license of petitioner Wilson. It was therefore conceded by the board in the trial court and it is conceded here that “in so far as the embalmer's license of Aubrey Wilson is concerned, the charges against him may be deemed to be dismissed.”

With respect to the last–mentioned contention, it may be noted that it is not claimed that the evidence was insufficient. The record contains ample evidence to show that petitioner Drummey was a licensed embalmer and was also the manager of petitioner Wilson, doing business as a licensed funeral director under the name of Wilson & Kratzer, and that at the time and place mentioned he did, following the death of Ada M. Shannon, solicit for preparation for burial and for burial her dead body. The gist of petitioners' contention is that there was no competent evidence to support the action of the board. It appears that the main evidence offered in support of the Shannon count was the record of a prior investigation held when no charges were pending against either of the petitioners. At that prior investigation, petitioner Drummey was present but petitioner Wilson was not present. Petitioner Drummey was sworn and testified at said prior investigation and gave a detailed account of his dealings with the relatives of Ada M. Shannon following her death. When the hearing was had upon the complaints in question, both petitioners were present. Witnesses were examined on all counts and both petitioners took the stand and testified. The record here shows that the first witness sworn was the shorthand reporter who had transcribed the record of the prior investigation. She identified the transcript of the proceedings on the prior investigation and it was read to the board and introduced in evidence as an exhibit without any objection by either of the petitioners. Neither petitioner Drummey nor petitioner Wilson raised any question as to its competency before the board and neither gave any testimony at the hearing which was in conflict with the testimony which had been given by petitioner Drummey on the prior investigation. In fact, the correctness of that testimony seems to have been tacitly conceded by petitioners, petitioner Wilson merely stating at the opening of the hearing, “There are extenuating circumstances, perhaps, that would also throw light on the question.”

In the absence of any objection before the board, it was too late to raise the question of the competency of said evidence on the application to the trial court for the writs which petitioners sought. The right of petitioners to raise the question of the competency of said evidence on said applications was certainly no broader than the right of an appellant to raise such questions on a direct appeal from a judgment. The rule on direct appeal is set forth in the recent case of People v. One forth in the recent case of People v. One Ford V. 8 Coach (Cal.App.) 69 P.(2d) 473, at page 474, where the court said: “It is well settled that in determining the question of the sufficiency of the evidence to sustain a trial court's decision, the appellate court will consider all proper evidence embraced in the record, including incompetent evidence admitted without objection; that the question of its competency is not before the court where it is admitted without objection, and that failure to object precludes the right subsequently to complain thereof (2 Cal.Jur. 804); furthermore, that incompetent evidence admitted without objection is legally sufficient to establish a fact (Mercantile Trust Co. v. Sunset Road Oil Co., 176 Cal. 461–466, 168 P. 1037), and is likewise sufficient to support a finding based thereon. (Powers v. Board of Public Works, 216 Cal. 546–552, 15 P.(2d) 156).” As we are of the opinion that there was sufficient evidence to sustain the findings and judgment of the board suspending the embalmer's license of petitioner Drummey and the funeral director's license of petitioner Wilson, doing business as Wilson & Kratzer, and that the question of the competency of the evidence introduced without objection before the board could not be raised in the trial court on the application of petitioners for said writs, we conclude that the order for the issuance of the peremptory writ of mandamus directing the dismissal of said proceedings cannot be justified upon the ground stated in the last–mentioned contention. We are further of the opinion that, except as hereinafter noted, the order for the issuance thereof cannot be justified upon any other ground stated in the petitions or in the briefs of petitioners.

It appears, however, that we must still consider the propriety of the order for the issuance of the writ in its application to the dismissal of the proceedings on the complaint seeking the suspension or revocation of the embalmer's license of petitioner Wilson. For the reasons above set forth, the board conceded in the trial court and concedes here that said complaint “may be deemed to be dismissed.” It nevertheless appeared to the trial court that there was an existing order of the board suspending said embalmer's license of petitioner Wilson. As there was admittedly no justification for said order of the board, it was a clear abuse of the board's discretion to enter said order. We are therefore of the opinion that petitioner Wilson was entitled to have said proceeding dismissed and that the portion of the trial court's judgment ordering that a writ of mandamus issue for that purpose must be affirmed. The propriety of invoking the writ of mandamus for such purpose was clearly indicated in Whitten v. California State Board of Optometry, supra, where the Supreme Court said at page 1297 of 65 P.(2d): “Under this theory the order of state–wide agencies such as the Board of Optometry would not be subject to review in response to the writ of certiorari, but their discretion could be confined within legal limits either by the procedure heretofore suggested or by the use of the writ of mandamus.”

The appeal of petitioners is dismissed. The judgment of the trial court ordering a peremptory writ of mandamus to issue is affirmed in so far as it directs the dismissal of the proceedings seeking the suspension or revocation of the embalmer's license of petitioner Wilson and further directs the admission of said petitioner Wilson to the use and enjoyment of his said embalmer's license. In all other respects said judgment is reversed. The parties will bear their own costs on this appeal.

SPENCE, Acting Presiding Justice.

We concur: STURTEVANT, J.; GRAY, Justice pro tem.