Since the filing of the opinion in this case, on the 25th of February, 1914, a petition or motion has been submitted on behalf of the appellant for a re-hearing and re-argument.
The case was submitted on the 8th of December, 1913, of the October Term, without oral argument upon full briefs filed on behalf of the State and on the part of the traverser.
In the opinion that was filed, we passed upon such of the pleadings as were necessary, and held the Act of 1902, Chapter 160, to be valid and free from the constitutional objections urged against it. The judgment of the Court below was affirmed.
It is now contended upon the part of the appellant and urged as reasons for a re-argument, first, that the affirmance of the rulings of the Court below, in sustaining the State's demurrer to the first and second special pleas "virtually reverses the decision of this Court in State v. Rice, 115 Md. 317," and secondly, the affirmance of the rulings on the *Page 687 third, fourth, fifth, sixth, seventh, eighth and ninth special pleas, in effect, holds "that the particular acts enumerated in these pleas, constituted such acts, as are within the letter and spirit of the law," and that the several persons or employees of a licensed undertaker named in these pleas would be required to license under the Act of 1902, Chapter 160.
It will be seen that the traverser pleaded to the indictment nine special pleas. The State demurred, and the Court sustained its demurrer to each plea. The single question here presented is whether these special pleas, as pleaded, were good pleas to the indictment, and, even if the facts set forth in them would have been a good defence, were they properly pleaded? The first plea was to each count of the indictment, and is as follows:
"(1) That the defendant is an employee of the said William Cook mentioned in the indictment, the said William Cook being a person engaged in the business of undertaking in Baltimore City and having a license from the State Board of Undertakers to engage in said undertaking business; that the defendant is a skilled embalmer, and as an employee of said William Cook, is engaged solely in embalming bodies for burial; that the defendant, during all the time mentioned in each count of the indictment, has performed no other acts connected with the business of undertaking except the said acts of embalming bodies as an employee of the said William Cook as aforesaid.
"The defendant further says, that undertaking and embalming are performed frequently by the same establishment, but that the business of undertaking is a separate and distinct business from the business of embalming. That an embalmer's duties require him to know the art of preserving the dead body both by arterial and cavity treatment; that he must generally be thoroughly familiar with anatomy, with the action of embalming fluids upon a body, and that the embalming business as such has nothing whatever to do with the conducting or managing of funerals. That *Page 688 an undertaker in order to be competent and qualified in the undertaking business, must have the following knowledge and be able to perform the following, being, among other things, the duties of an undertaker:
"He should be able to sell a casket, to trim a casket, put in the inner lining and put the handles on. He should have a knowledge of all kinds of men and women's various suits and dresses; where to purchase them and how to sell them and how to place them on a corpse. He should be able to place the corpse in a casket and close it up after the service is over. He should have a knowledge of measuring of bodies of the dead and fumigating the room in which the persons died. He should also know where all the cemeteries are located, in or near the city, and where all the steamboat and railroad stations in said city are located, and should also know how to purchase a ticket for a corpse. He should see that the body is placed on a train or boat in time for shipment. He should also know how to arrange for a funeral in a Catholic or Protestant church. He should have a knowledge of the Health Department rules regarding the removal of a body from a hospital or from house to house. He must be able to act as agent of the family in seeing the doctor for a certificate and notifying the cemetery to have the grave ready in time for the funeral. He should know the prices of carriages and hearses for funerals on week-days and Sundays, also for country funerals. He should notify the minister to serve at the funeral and he should see that the box is taken to the cemetery in time to have the grave dug. He should be able to conduct a funeral, such as to go to the house of the dead, set up chairs enough to seat the people; see that the hearse and carriages are in time and outside of the door to carry the people to the cemetery; indicate the appropriate time to begin the funeral services; after the services, instruct the pallbearers to carry out the body to the hearse; read the names from the list furnished by the family and load each carriage properly; *Page 689 sit in the pallbearers' carriage, or in a buggy half a block ahead of the hearse, and lead the funeral party to the cemetery. After arriving at the cemetery, deliver the body over to the cemetery officials, and remain to see that the body is lowered in the grave and the mourners are safely placed in their carriage to return home."
Each of the remaining eight pleas were to each count of the indictment, and each plea concluded as follows:
"And the defendant further says that the duties of a person engaged in the business of undertaking and those of an embalmer are as heretofore set out in the first plea, which statement of duties as therein set forth is made part hereof as fully as if set forth herein at length."
The Court below sustained the State's demurrer to these pleas and held the pleas to be bad and defective, and in this conclusion we concurred.
In Moses v. Allen, 91 Md. 50, it is said that the plea in the form in which it was tendered was prolix and argumentative. It could not have been traversed except by a replication of like faulty character and the demurrer to it was properly sustained.
In Fox v. State, 89 Md. 388, a somewhat similar state of pleadings was presented, and this Court said: "We need say but little in regard to the question presented by the demurrer. For the reasons already given, the facts set forth in the special pleas would have afforded a good defense to the first and second counts, if they had been properly pleaded. But the special plea was pleaded to each count, and therefore to the whole of each count and to the whole of the indictment. But, clearly, as we have already pointed out in discussing the question as presented by the exception to testimony, the facts set forth in the plea do not answer, as the plea professes to do, the whole indictment, nor even the whole of the third count. For this reason the plea is defective. But in addition to this objection the plea amounts to the general issue and is bad for this reason also." It was *Page 690 held that the demurrer to the special pleas were properly sustained by the Court below. There were eight pleas filed inFox's case.
The weight of authority in this and other jurisdictions seems to be conclusive in support of the proposition stated in Fox v.State, supra — 12 Cyc. 363; Moses v. Allen, 91 Md. 50;Spencer v. Patton, 84 Md. 414; 16 Enc. of Plead. andPractice, 549; Lake v. Thomas, 84 Md. 622; Hagerstown v.Klotz, 93 Md. 438.
Mr. Chitty, in his work on pleading, 1 Chitty, 236, says that pleadings must not be insensible or repugnant, nor ambiguous or doubtful in meaning, nor argumentative, nor in the alternative — Archbold, P. and E., in Criminal Cases, 49; 1 Poe, P. andP., sec. 549; Gott v. State, 44 Md. 341; Mitchell v.Williamson, 6 Md. 210; Gardiner v. Miles, 5 Gill, 100; 2Bouvier's Law Dictionary, 678.
The nine special pleas filed in this case by the traverser were therefore bad, defective and clearly demurrable for the reasons stated, and need not be further discussed.
The special plea of auterfois acquit, called by the appellant in his brief "a plea in the nature of a plea in abatement," and in his petition as "a plea in the nature of former jeopardy," was, on its face, so clearly without merit that we did not deem it necessary for the purposes of the case to discuss it, but affirmed the ruling of the Court sustaining the demurrer to it.
The plea is set out in the record, and shows on its face that "the name of the deceased and the date of the offense" in the indictment on the former trial were entirely different from those in the present indictment, consequently they were clearly different and not the same offenses. In the brief filed by the appellant, in dealing with this plea, it is said:
"Before filing the nine special pleas to the indictment, the defendant interposed a plea in the nature of a plea in abatement (Record, p. 10), putting upon the record the fact that he had been previously arraigned under an indictment, identical in terms with the present *Page 691 indictment, except as to the name of the deceased and the date of the offense; that, after full argument upon the defendant's demurrer to said original indictment and each count thereof, the Criminal Court of Baltimore (Gorter, J.) declared unconstitutional the law on which said indictment was based, sustained said demurrer to each count, and passed an order of final judgment discharging the defendant without day.
"Whatever may be the merits of such plea in technical law, it does seem, as a matter of principle and practice, that a defendant ought not to be harassed by a second indictment identical in terms with a prior indictment which, after full and fair argument, has been ruled insufficient and from which he has been discharged without day. The State had its right to appeal from the first judgment; failing to do so, it was bound in equity to let the subject-matter thereof rest as concluded by that judgment."
It is quite apparent, then, that under the defective special pleas filed in this case we were not called upon to decide, and we are not to be understood as deciding, that the statute in question applies in terms to every employee or to the various employees of an undertaker named in the special pleas. No such conclusion can be drawn from the opinion filed in the case. We regarded the validity of the Act as the substantial question presented by the record and discussed in the briefs of the respective counsel, and so dealt with the case.
In the brief filed by the learned Attorney-General on behalf of the State it is said: "The State understands the real contentions of the appellant to be that the Act of 1902, Chapter 160, is unconstitutional and void." And the appellant, in his brief, relied upon the invalidity of the Act as a bar to the prosecution under each plea. The pleas as filed were practically disregarded by the appellee in its brief, and only two were discussed or mentioned at all. *Page 692
But, apart from the objections just considered, it is contended that the Court, by the opinion filed herein, "virtually reversed the decision in Rice's case, 115 Md. 317." In what respect it is difficult to see, as we relied upon that case, quoted extensively from it, and said: "Under the statute now before us, and as it now stands, a person is not required in order to secure a license to qualify as an embalmer. The test relates to knowledge of undertaking, of sanitation, preservation of the dead, and disinfecting the bodies of deceased persons, apartments, clothing and bedding in case of death resulting from infectious or contagious disease.
"There can be no doubt, we think, that such requirements bear a close and reasonable relation to the public welfare, and to the preservation of public health. They are in themselves fair and reasonable and impose no restraint which may not be complied with by reasonable experience, and does not violate in any sense the constitutional rights of the traverser."
As to the technical objection to the statement in the opinion, "that the demurrer and pleas present the same question, namely, whether the Acts of 1902, Chapter 160, is a valid and constitutional exercise of the legislative power and will be considered together," we need only say that the pleas were so treated by the appellant in his brief as raising the question of the validity of the law. And in his petition for a hearing, now before us, it is stated that the pleas were drawn so as to ascertain:
a. Whether the law by reason of its supposed many infirmities was valid at all;
b. If valid, what acts would constitute a violation of it;
c. If, under Rice's case, no license for embalming is required by one working on his own account, is a law valid if it requires one for the same work if performed by an employee of a licensed undertaker.
Finding no reason for granting the motion for a re-argument in this case, the motion will be overruled.
Motion overruled, with costs. *Page 693