State v. Gateway Mortuaries, Inc.

MR. CHIEF JUSTICE CALLAWAY delivered the opinion of the court. The Gateway Mortuaries, Incorporated, a Montana corporation, and Pat R. Gagner, its agent, have appealed from a judgment of conviction on a charge of violating the provisions of Chapter 88 of the Laws of 1929. The first section of Chapter 88, hereafter referred to as the Act, reads as follows: “All written contracts or agreements hereafter made for the performance of personal services in connection with the preparation for burial or cremation, or the burial or cremation, of dead human bodies, made prior to the death of the persons whose bodies are to be buried or cremated, when said written contract or agreement is not made in contemplation of the imminent death of said persons, are hereby declared to be against the public policy of the State of Montana and to be unlawful and void.” Section 2 provides that the term “personal services” shall be held to include the embalming, or other preservation of dead human bodies, the cremation of the same, furnishing caskets, burial vaults, providing means of transportation to be used in connection with burials, or any other services in connection therewith that are usually performed by undertakers, and contains the proviso that the independent sale of caskets or burial vaults when not made in connection with a contract covering other services above mentioned shall not be held to be within the term “personal services.” Section 3 provides that one violating the provisions of the Act shall be guilty of a misdemeanor, and upon conviction, *234 shall be punished for each offense by a fine of not to exceed $1,000, or by imprisonment in the county jail for not more than one year, or both. After the Act became effective, defendants induced M. G. O’Malley of Butte to enter into a written contract for the burial of himself, his wife and his father-in-law, George Dimnent, the death of no one of whom was imminent, the consideration for the contract being the sum of $45 paid by O’Malley, and the future burial of each of the persons named, on the basis of “cost-plus ten per cent” for material furnished, and “a reasonable allowance for personal services rendered,” use of hearse and autos “together with estimated proportionate part of legitimate business and overhead expenses of the company.” Although, at the time the contract was executed, he was apparently in good health, two weeks thereafter Dimnent died. He was buried by the company pursuant to the contract. Prosecution followed, with the result indicated above. As counsel agree, a perfect ease is presented for testing the validity of the Act. Counsel for defendants argue that the Act is obnoxious to the Fifth and Fourteenth Amendments and section 27 of Article III of our state Constitution, which declare that no person shall be'deprived of life, liberty or property without due process of law, and that provision of the Fourteenth Amendment which guarantees the equal protection of the laws, and of section 3 of Article III of the state Constitution which provides that “all persons are born equally free, and have certain natural, essential, and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties, of acquiring, possessing, and protecting property, and of seeking and obtaining their safety and happiness in all lawful ways.” Essentially the main question is whether the legislative assembly in prohibiting the contracts described in the Act, and declaring the public policy of the state with reference thereto, transgressed its constitutional powers. The Act rests upon an *235 attempt to exercise the police power of the state. Does it bear a real and substantial relation to the public health, safety, morals or some other phase of the general welfare? (Liggett Co. v. Baldridge, 278 U. S. 105, 73 L. Ed. 204, 49 Sup. Ct. Rep. 57.) Public policy is that principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good. (Page on Contracts, Supp., sec. 672; Lawson v. Cobban, 38 Mont. 138, 99 Pac. 128; Spaulding v. Maillet, 57 Mont. 318, 188 Pac. 377.) What is the public policy of a state, and what is contrary to it, is not to be measured by the private convictions or notions of the persons who happen to be exercising judicial functions, but by reference to the enactments of the lawmaking power, and, in the absence of them, to the decisions of the courts. When, however, the legislature has spoken upon a particular subject and within the limits of its constitutional powers, its utterance is the public policy of the state. (Mr. Chief Justice Brantly in MacGinniss v. Boston & Mont. C. C. & S. M. Co., 29 Mont. 428, 75 Pac. 89, and Parchen v. Chessman, 49 Mont. 326, Ann. Cas. 1916A, 681, 142 Pac. 631, 146 Pac. 469.) An Act of the legislature is presumed to be valid; every intendment is in favor of upholding its constitutionality; it will not be condemned unless its invalidity is shown beyond a reasonable doubt; but when it appears that an Act manifestly violates a constitutional guaranty, the court will not hesitate to pronounce the Act void. (Gas Products Co. v. Rankin, 63 Mont. 372, 207 Pac. 993; Hale v. County Treasurer, 82 Mont. 98, 265 Pac. 6.) Unless there is a clear and palpable abuse of power a court will not substitute its judgment for legislative discretion. Local authorities are presumed to be familiar with local conditions and to know the needs of the community. (Allion v. *236 City of Toledo, 99 Ohio St. 416, 6 A. L. R. 426, and exhaustive note, 124 N. E. 237.) The right to contract is vouchsafed to every citizen by the law of the land, if the subject of the contract is a lawful one, the persons making the same are competent to make it, and the exercise of the right does no injury to 1he public. (Pittsburg, C., C. & St. L. Ry. Co. v. Carmody, 188 Ky. 588, 12 A. L. R. 469, 222 S. W. 1070; 12 C. J. 949.) The right of private contract is no small part of the liberty of the citizen, as Mr. Justice Shiras said in Baltimore & O. S. W. R. Co. v. Voigt, 176 U. S. 498, 44 L. Ed. 560, 20 Sup. Ct. Rep. 385, 387, in which the learned Justice quoted the language of Sir George Jessel, M. R., in Printing etc. Co. v. Sampson, L. R. 19 Eq. 465: “It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice. Therefore jmu have this paramount public policy to consider,- — that you are not lightly to interfere with this freedom of contract.” Said Mr. Justice Pitney in Coppage v. Kansas, 236 U. S. 1, L. R. A. 1915C, 960, 59 L. Ed. 441, 35 Sup. Ct. Rep. 240, 243: ‘ ‘ Included in the right of personal liberty and the right of private property — partaking of the nature of each — is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, b3r which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense. The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no *237 other honest way to begin to acquire property, save by working for money.” The supreme court of Tennessee in Moyers v. City of Mem phis, 135 Tenn. 263, Ann. Cas. 1918C, 854, 186 S. W. 105, 112, declared: “The liberty of contract is one of the inalienable rights of a citizen. The right to pursue a lawful calling embraces the right to enter into all contracts proper, necessary, and essential to the carrying out of the purpose of such calling. * * * ” In Allgeyer v. Louisiana, 165 U. S. 578, 41 L. Ed. 832, 17 Sup. Ct. Rep. 427, the supreme court said that the “liberty,” mentioned in the Fourteenth Amendment, includes the right to enter into all contracts which may be proper, necessary and essential in carrying out to a successful conclusion a lawful calling. (And see Chas. Wolff Packing Co. v. Court of Industrial Relations of Kansas, 262 U. S. 522, 27 A. L. R. 1280, 67 L. Ed. 1103, 43 Sup. Ct. Rep. 630; People v. Holder, 53 Cal. App. 45, 199 Pac. 832; Hyatt v. Blackwell Lumber Co., 31 Idaho, 452, 1 A. L. R. 1663, 173 Pac. 1083 ; Hall v. State, 100 Neb. 84, L. R. A. 1916F, 136, 158 N. W. 362; Minnesota Wheat Growers’ Assn. v. Radke, 163 Minn. 403, 204 N. W. 314; People v. Chicago, Mil. & St. P. R. R. Co., 306 Ill. 486, 28 A. L. R. 610, 138 N. E. 155.) Nevertheless, the right to contract under any and all circumstances is not absolute. (Adkins v. Children’s Hospital, 261 U. S. 525, 24 A. L. R. 1238, 67 L. Ed. 785, 43 Sup. Ct. Rep. 394.) “While it may be conceded that, generally speaking, among the inalienable rights of the citizen is that of the liberty of contract, yet such liberty is not absolute and universal. It is within the undoubted power of government to restrain some individuals from all contracts, as well as all individuals from some contracts * * ÍS and, indeed, may restrain all engaged in any employment from any contract in the course of that employment, which is against public policy. The possession of this power by government in no manner conflicts with the proposition that, generally speaking, every *238 citizen has a right freely to contract for the price of Ms labor, services or property.” (Frisbie v. United States, 157 U. S. 160, 39 L. Ed. 657, 15 Sup. Ct. Rep. 586, 588.) Doubtless, Mr. Freund had in mind the law thus correctly stated, when he said: “But the liberty of contract, like all other civil liberty, is subject to restraint and regulation on behalf of the public welfare, and to speak of a constitutional liberty of contract without careful qualification is a vague and meaningless phrase. The liberty of contract yields readily to any of the acknowledged purposes of the police power, and it differs from fundamental constitutional rights, from the liberty of the body or person, from the rights of property (including the obligation of existing contracts), from the right of equality, and from political liberty, in that it is neither a vested right, nor right of definite content, nor a right protected by special constitutional guaranties.” (Freund on Police Power, see. 499.) In other words, the right to contract is subject to restrictions placed upon it in the proper exercise of the police power of the state in the interest of the general welfare. (12 O. J. 949.) “WMle no court or text-writer has assumed to define with accuracy the limits of the power, it may be said generally that the state may regulate or control every act or thing within its jurisdiction which tends to subvert the government, to injure the public, to destroy the moi’als of the people, or to disturb the peace and good order of society.” (Herlihy v. Donohue, 52 Mont. 601, Ann. Cas. 1917C, 29, L. R. A. 1917B, 702, 161 Pac. 164, 166.) The power, to exert what are known as the police powers of the state, belongs to the legislative branch of the government and it rests with that department, primarily, to determine “what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety,” as Mr. Justice Harlan said in Mugler v. Kansas, 123 U. S. 623, 31 L. Ed. 205, 8 Sup. Ct. Rep. 273, 297, but he continued, “It does not at all follow that every statute enacted ostensibly for *239 the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor of the validity of a statute (Sinking Fund Cases, 99 U. S. 700, 718 [25 L. Ed. 496]), the courts must obey the Constitution rather than the law-making department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed.” (Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60.) The police power of the state extends only to such measures as are reasonable, and the general rule is that all police regulations must be reasonable under all circumstances. (6 R. C. L. 236. And see Bettey v. City of Sidney, 79 Mont. 314, 56 A. L. R. 872, 257 Pac. 1007.) “This doctrine is being more and more emphasized as the number of police regulations multiply, evincing a tendency to fence in individual freedom as to matters not formerly so narrowed by legislative enactments. The writers declare that the supervision which courts widely exercise regarding the adjustment of means to ends in the protection of public interests as to ordinances extends to legislative enactments as to health and safety. (Freund, Police Powers, sec. 142.) ” (State v. Redmon, 134 Wis. 89, 114 N. W. 137, 143.) Reasonableness is one of the inherent limitations of the power. (Rideout v. Knox, 148 Mass. 368, 12 Am. St. Rep. 560, 2 L. R. A. 81, 19 N. E. 390.) For, as Mr. Justice Henshaw said in Ex parte Jentzsch, 112 Cal. 468, 32 L. R. A. 664, 44 Pac. 803, 804: “While the police power is one whose proper use makes most potently for good, in its undefined scope and inordinate exercise lurks no small danger to the republic; for the difficulty which is experienced in defining its just limits and bounds affords a temptation to the legislature to encroach upon the rights of citizens with experimental laws none the less dangerous because well meant,” *240 Freedom of contract is the general rule and restraints the exception; and the exercise of legislative authority to abridge it can only be justified by the existence of exceptional circumstances. (Adkins v. Children’s Hospital, supra.) A state may not, under the guise of protecting the public, arbitrarily interfere with private business, or prohibit lawful occupations, or impose unreasonable or unnecessary restrictions upon them. (Jay Burns Baking Co. v. Bryan, 264 U. S. 504, 32 A. L. R. 661, 68 L. Ed. 813, 44 Sup. Ct. Rep. 412; Liggett Co. v. Baldridge, supra; Meyer v. Nebraska, 262 U. S. 390, 29 A. L. R. 1446, 67 L. Ed. 1042, 43 Sup. Ct. Rep. 625; and see Weaver v. Palmer Bros. Co., 270 U. S. 402, 70 L. Ed. 654, 46 Sup. Ct. Rep. 320, in which Powell v. Pennsylvania, 127 U. S. 678, 32 L. Ed. 253, 8 Sup. Ct. Rep. 992, is distinguished and explained.) That the business is a proper subject of regulation to safeguard the public interest all concede; no citation of authority is required. After this somewhat extended review of the law we come to the inquiry whether the Act in question is a reasonable one, designed to serve the public welfare, or whether it is an unreasonable and arbitrary invasion upon the constitutional rights of the citizen. The business of disposing of the remains of the dead is a useful, essential and lawful one. It is as old as written history and will not perish until civilization ceases to exist. The Act prohibits written contracts for personal services in connection with the burial of a human body when the written contract is not made in contemplation of the imminent death of the person to be buried. Such a contract is denounced as contrary to public policy and void. “Imminent” is defined to be: “Threatening to happen at once, as some calamity; dangerous and close at hand; impending, as imminent peril. Imminent from the Latin, with a sense of projecting over, signifies liable to happen at once, as some calamity. Impending, also from the Latin, with the sense of *241 hanging over, is closely akin to imminent but somewhat less emphatic. Imminent is more immediate, impending more remote, threatening more contingent. An impending evil is almost sure to happen at some uncertain time; an imminent peril is one liable to befall very speedily; a threatening peril may be near or remote, but always with hope that it may be averted.” (Funk & Wagnalls’ New Standard Dictionary.) The effect of this statute may be illustrated by the following examples: (1) A, a prosperous merchant in a Montana city, is advised by his physician that his, A’s, health is in a precarious condition, and he should go upon a protracted ocean voyage at once. A determines to do so. A has been caring for B, an invalid, indigent cousin, who, while not in imminent danger of death, may pass away in A’s absence. A seeks out C, an undertaker, and enters into a written contract with him to the effect that if B shall pass away within three months C, for a specified sum of money, will furnish a casket, the necessary transportation, and perform all necessary services in connection with B’s funeral. Under the terms of the Act the contract is void and C is guilty of a crime. And it is not certain, under the Act, that A is not guilty also. (2) D, a man in moderate circumstances, is afflicted with cancer and is advised by his physician that while his death is not imminent, it may occur at any time within six months and beyond doubt will occur within one year. D knows that his wife, who is devotedly attached to him, unless the matter is taken in hand by D himself, will spend a much greater sum of money upon his funeral than D’s estate will warrant, and thereby his wife and children will be deprived of money of which they will be in sore need. D enters into a written contract with E, an undertaker, that E will furnish a designated casket and all necessary services incident to the funeral for a certain sum of money. Same result as in example (1). On the other hand: *242 (3) X, whose circumstances are similar to D’s, following a heavy dinner, is seized with a frightful paroxysm. His physician tells him the malady is angina pectoris, and his death is imminent, and it appears to be imminent. X immediately enters into a contract with Y, similar to the one D entered into with E, but X, under the skillful treatment of his physician recovers from the present attack and lives two years. The contract is good. These examples demonstrate conclusively, it seems to us, the unreasonable and arbitrary character of the Act. The Act prohibits a man, sound in mind and body, from making a written contract for the protection of his estate — ergo, for the protection of his wife and children. For all practical purposes, if declared valid, the Act will prevent written contracts respecting its subject matter (save as to that reserved in the proviso) altogether. Can any reason be given why the contracts illustrated in examples (1) and (2) should be prohibited? Example (3) may be deemed fanciful, for none but the exceptional person will think of such a contract under the dread circumstances, but it serves to illustrate the unreasonableness of this legislation. Any one of the contracts, if oral, is valid under the Act, notwithstanding that the wisdom of the ages has ever favored a written, over an oral contract. But it is said that the Act is only designed to regulate the business it affects; that the Act is designed to prevent frauds upon the public, and our attention is called to the fact that contracts similar to that entered into between Gateway Mortuaries, Incorporated, and O’Malley have been declared fraudulent and. contrary to public policy. The fact that unscrupulous men may enter into fraudulent contracts, respecting a lawful business, is not alone a sufficient ground for the legislature to prohibit lawful contracts respecting that business. “Certainly there is no profession, possibly no business, which does not offer peculiar opportunity for reprehensible practices; and as to every one of them, no doubt, *243 some can be found quite ready earnestly to maintain that its suppression would be in tbe public interest. Skillfully directed agitation might also bring about apparent condemnation of any one of them by the public. Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked.” (Adams v. Tanner, 244 U. S. 590, Ann. Cas. 1917D, 973, L. R. A. 1917F, 1163, 61 L. Ed. 1336, 37 Sup. Ct. Rep. 662, 664.) “It is not permissible to enact a law which, in effect, spreads an all-inclusive net for the feet of everybody upon the chance that, while the innocent will surely be entangled in its meshes, some wrongdoers also may be caught.” (Tyson & Bro.-United Theatre Ticket Offices v. Banton, 273 U. S. 418, 58 A. L. R. 1236, 71 L. Ed. 718, 47 Sup. Ct. Rep. 426, 432.) In the exercise of the police power, citizens may, for the pub-lie good, be constrained in their conduct with reference to matters in themselves lawful and right. (City of Butte v. Paltrovich, 30 Mont. 18, 104 Am. St. Rep. 698, 75 Pac. 521.) The argument that “it is only when no state of circumstances could exist to justify the exercise of the police power that the law will be declared void,” supposed to be the doctrine of some cases, manifestly is unsound, for abuses may be found in every business; and that doctrine carried to its legitimate conclusion would remove all restraints and permit paternalistic and arbitrary legislation without end, wiping out constitutional guaranties under the guise of an undefined power “outside and in a sense above the Constitution. (Donnelly v. Decker, 58 Wis. 461, 46 Am. Rep. 637, 17 N. W. 389.)” (State v. Redmon, supra.) “Our government was not designed to be paternal in form.” (Ex parte Jentzsch, supra.) As this court said, in Gas Products Co. v. Rankin, supra, the paternal theory of government is odious, and we should not treat lightly or disregard the sacred rights recognized and guaranteed by the Constitution. Were we to sustain the constitutionality of this Act, *244 there would be no limit to which the legislature might not go in depriving persons of the right to contract in a lawful way-concerning a lawful business. No similar Act has been called to our attention, and while some of the eases have gone to a great length in sustaining regulatory legislation, we have not found a ease which goes to the extreme called for to sustain this Act. The moving impulse is not to regulate the business; it is to prohibit written contracts relating to the very essentials of the business, except under circumstances practically prohibitive, by reason of human frailty, to the general run of mankind. How the Act reasonably can be said to regulate the business affected is beyond our comprehension. Having found the Act unreasonable, arbitrary and violative of the provisions of the Constitutions of the United States and of this state, it is our duty to declare it void and we do without hesitation. The judgment is reversed, with directions to the district Court of Silver Bow county to discharge the defendants, and dismiss the action. Associate ’Justices Galen and Angstman concur.