Concurring Opinion
Lewis, C. J.I concur in the opinion of the Court; however, I feel there are several aspects of this case, which although not essential to the resolution of the appeal, necessarily should be discussed.
As early as 1908 programs designed to provide pre-paid funerals, then called “burial associations”, were being offered to the citizens of this State. The design of these associations was a simple one. With the death of a member, all remaining members were assessed a stipulated amount which represented both the amount necessary for the funeral and the profit of the association. Aside from the obvious fact that such a plan placed a premium on an early death, the overall experience in this and other States with such organizations was not a pleasant one. Inevitably, they were wrought with fraud and the financial instability which often accompanies get-rich-quick speculators. Many families found themselves paying for a funeral twice — once to the organization and once again at *707the time of death. As a result, the legislature sought to eliminate this evil through the exercise of the State’s police power. Part of our legislature’s reaction is reflected in Burns’ Indiana Statutes, Anno., (1961 Eepl.), § 63-727 (d), which, in part, provides for the funeral directors: • '
“If the holder thereof [of a funeral director’s license] shall he guilty of taking any undue advantage of his patrons or shall be guilty of any fraudulent act in the conduct of his business or has promoted or is promoting, or has participated in or is participating in any scheme or plan in the nature of a burial association or a burial .certificate or membership certificate plan [the license may be revoked]. . . .”
This, however, does not mean that a man may not make provisions for his funeral before his death. This Court stated in State v. Willett (1908), 171 Ind. 296, 301, 302, 86 N. E. 68:
“There is no doubt that a contract founded upon a legal consideration, whereby the obligor undertakes to furnish the obligee, or one of the latter’s near relatives, as the case may be, at death, a burial reasonably worth a fixed sum, would be a valid contract. If the citizen of small means, or for any other reason, desires to make a definite arrangement for the expenses of his funeral, and thus make certain of a sufficient amount to secure a respectable burial, the law will sustain him, if he will keep his contract within certain, well-defined limitations demanded by both the statute and public policy. . . .”
It is important, in the light of this public policy in favor of certain pre-need contracts (if within statutory limitations), that we consider the practical result of the ruling by the State Board of Embalmers and Funeral Directors in this case. Essentially, the result is that the contractual arrangement offered by the Pre-Need Muehlebach Corp. will not be available to the citizens of this State. The program sold by this corporation costs $735 and offers a specified funeral replete with the usual trappings (excluding a plot and stone), worth,something over $1,000 at’ today’s market price. While the contract does not in any way commit the obligee to any specific funeral *708home, the consent of funeral directors to co-operate in the program is essential. By express testimony, co-operation (possibly labeled “participation”) is what appellants, Burns and Owens, have offered. It was apparently found by the. Board, on what this Court must now rule as not being substantial, probative evidence, that a contract between appellants and Pre-Need Muehlebach existed. Either way, the Board’s ruling indicates that co-operation by a funeral director with a Pre-Need program can result in the revocation of the director’s license. Good sense indicates that only the foolhardy will be willing to co-operate, and without such co-operation, Pre-Need is without an effective program to offer.
Appellants, in their brief, raised three (3) basic contentions :
First Does the State’s police power extend far enough to sustain the statutes in question under which appellants lost their license?
Second. Was there sufficient evidence to sustain the administrative board’s determination?
Third. Was evidence obtained by complainant-appellee’s counsel (who had been imported from a foreign jurisdiction) by a knowing misrepresentation and hidden tape recorder, proper for the consideration of the Board?
Burns’ Indiana Statutes, Anno., (1963 Suppl.), §63-727, prohibits, by penalty of license revocation, any kind of contractual participation, and indeed, possibly merely participation of a funeral director in any organization “in the nature of a burial association.” The passage of this legislation is justified under the police power of the State in the statement of purpose for the embalmers and funeral directors legislation. Burns’ Indiana Statutes, Anno., (1961 Repl.), §63-717, declares :
“It is hereby declared that this act . . . shall be deemed an exercise of the health powers of the state for the prevention of the spread of infectious and contagious diseases; for *709the protection of the sanitation, health and welfare of the people of the state. . . .”
The power to exert the police power of the State is the legislature’s, and it rests with that branch of our government 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 stated in Mugler v. Kansas (1887), 123 U. S. 623, 31 L. ed. 205, 8 S. Ct. 273, 297.
“. . . It does not at all follow that every statute enacted ostensibly for 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, 501), the courts must obey the Constitution rather than the law-making department of government. . . .” Mugler v. Kansas, supra.
The “test” for the legitimate exercise of the State’s police power is not a readily definable one. However, it is clear that the United States Supreme Court has abandoned the Lochner-Adair-Coppage philosophy. Lincoln Federal Labor Union v. Northwestern Iron and Metal Co. (1949), 335 U. S. 525, 69 S. Ct. 251, 93 L. ed. 212. The burden has shifted from the State to the challenger of the legislation who must now demonstrate that no reasonable relation to the police power exists. However great an obstacle this may present, it must be remembered, as often it is not, that there is no such thing as “far-fetched reasonableness”. It must be frankly stated that the legislation which the appellants are charged with violating stands on a rather shaky foundation of reasonableness. It is significant to note that out of several hundred purchasers of the Pre-Need plan, not one came forth or was presented at the hearing to claim that any fraud or questionable tactics were practiced. Nor was any other evidence of any nature sub*710mitted which might cast a questionable shadow on the ethics or good faith of either the appellants or the Pre-Need corporation. In fact, it is fairly .clear from the record that the contract plan was well within the laws of this State which regulate such agreements. It is significant to note that it was not a swindled citizen who brought this complaint, but a private association of funeral directors. It is clear that where fraud or other wrongdoing is involved, the power of the State to regulate is inherent; but, such is not the situation here. It would be an embarrassment in logic for this Court to assert that there is some reasonable relation between the co-operation of a funeral director with an organization selling what is essentially burial insurance and “. . . the prevention of the spread of infectious and contagious diseases.” Burns’, § 63-717, supra. The underlying scheme of Burns’ Indiana Statutes, Anno., (1963 Suppl.), § 63-717 et seq. is more clearly reflected in the following provision of Burns’, § 63-727, supra:
... Conduct of such nature tends to reflect upon or discredit the profession of embalming and funeral directing [also may be cause for revocation of license].”
Competition is the mainstay of the economic system. There are, of. course, a substantial number of occasions when the State must invoke its power to limit competition in the interests of public health, safety or welfare. However, considering the rising and sometime oppressive costs of a funeral, can the interests of the citizens of this State truly be served by the broad interpretations of an administrative tribunal which limits the ability of a man to protect his family from an emotional extravagance in a time of grief?
The Board in this cause found the Pre-Need Muehlebach Plan to be in the nature of a burial association. This was, of course, necessary to the determination that appellants had participated in such a burial association. Such a determination, to say the least, is a curious one in light of recent statutes. The legislature, in 1963, shortly after this cause was brought *711before the Board, enacted a series of provisions designed to regulate “pre-need funeral plans”. See Burns’ Indiana Statutes, Anno., (1963 Suppl.), §31-1001 et seq. Aside from the obvious similarity in name, the Pre-Need program, which the Board found the appellants participating in, meets substantially both the definable scope and provisions of those statutes. The legislature has chosen to distinguish such plans from the burial associations affected in Burns’, § 63-727, swpra. To rule otherwise would contravene the manifested intent of the legislature.
The majority opinion of this Court overrules the decision of the Newton Circuit Court because there is insufficient evidence in the record to sustain the action of the Board. Suffice it to say that while administrative hearings in this State are not bound by the strict common-law rules of evidence, substantial evidence of probative value is still required to sustain a finding of such a body. Burns’ Indiana Statutes, Anno., (1961 Repl.), § 63-3008, reads, in part, as follows:
“Such agency is hereby authorized to conduct such hearing in an informal manner and without recourse to the technical common-law rules of evidence required in proceedings in judicial courts, and such manner of proof and introduction of evidence shall be deemed sufficient and shall govern the proof, decision, and administrative or judicial review of all questions of fact if substantial, reliable and probative evidence supports such agency’s determination. . . .” (emphasis added).
Finally, I approve thoroughly of the ruling in the Majority Opinion by Judge Jackson which removes the stamp of judicial approval from the manner in which certain alleged evidence was obtained by a hidden microphone.
NOTE. — Reported in 238 N. E. 2d 663.