Appeal from the Circuit Court of McLean County; the Hon. R.
BURNELL PHILLIPS, Judge, presiding. Decree dismissing complaint
Rehearing denied and opinion modified October 28, 1966.
Harold Bathe, plaintiff, appeals from a decree of the Circuit Court of the Eleventh Judicial District, McLean County, Illinois, dismissing his complaint for declaratory judgment and injunctive relief against two groups of defendants and the Director of the Department of Registration and Education of the State of Illinois.
This cause was first directly appealed to the Supreme Court of Illinois, and was transferred to this court under the following memorandum order:
"Appellant contends that the validity of certain statutory provisions is involved in this appeal. From the order of the trial court it appears that the court dismissed appellant's complaint on the grounds that no actual controversy existed and that appellant lacked standing to challenge the validity of said provisions. The alleged constitutional issue is not directly involved and on the Court's own motion the cause is transferred to the Appellate Court for the Fourth District."
The complaint charges that Carl Stamper and other licensed funeral directors in McLean County, who are labelled Group I Defendants, filed a suit in the Circuit Court of McLean County, Illinois, alleging that plaintiff is in fact engaged in the practice of funeral directing, without being licensed as required by chapter 111 1/2, §§ 73.1 to 73.30 (Ill Rev Stats), and praying an injunction against such practice. The suit against plaintiff also sought to state an action in quo warrantor against another party to the suit, East Lawn Memorial Gardens, Inc., alleging it was soliciting the furnishing of funeral and embalming services, and otherwise exceeding its charter powers.
The complaint, here, charges Funeral Directors Services Association of Greater Chicago, Illinois Funeral Directors Association and others labelled Group II Defendants, with fostering and financially assisting in the foregoing litigation against plaintiff, and with commencing a proceeding against one Marian Ward before the Department of Registration and Education of the State of Illinois, to revoke the license of said Ward, complaining inter alia, that said Ward employed the plaintiff to perform the services of a registered funeral director, when, in fact, plaintiff was not a licensed funeral director or embalmer.
The plaintiff, here, charges that Art I and Art III of an Act in relation to the regulation of persons engaged in the practice of funeral directing and embalming, chapter 111 1/2, §§ 73.1-73.10a and §§ 73.21-73.30, each inclusive (Ill Rev Stats), are unconstitutional and void, and that said statute is the basis of the foregoing suit against plaintiff and of the license revocation proceeding.
He further charges Group I defendants and Group III defendants with an unlawful conspiracy to deprive plaintiff of his business, but such issue is not discussed under points and authorities in his brief, nor considered in his argument.
Plaintiff, in this case, states the fact to be that plaintiff incorporated East Lawn Memorial Gardens, Inc., a memorial garden type cemetery which sells burial spaces and "related merchandise." The complaint states that plaintiff built a building through a corporation owned by plaintiff named Memorial Chapels, Inc., and leased said building to Marian Ward, an Illinois licensed funeral director, and that said Marian Ward operated a funeral home in said building, called East Lawn Memorial Chapel, until the operation became unsuccessful due to the unlawful course of conduct of Group I and Group II defendants.
The complaint, as noted, states that the suit of Group I Defendants against him charges that he is individually conducting the business of funeral director, and that the complaint before the Department of Registration and Education so charges him. It does not state whether plaintiff is, in fact, conducting, or, in fact, seeks to conduct the business of funeral directing himself.
The complaint does not state that plaintiff has sought a license as a funeral director, but does state that the statute requires as a prerequisite to licensing, the completion of one year in a professional school or college teaching the practice of funeral directing, that there was only one school in Illinois, to-wit: Worsham College of Mortuary Science, which taught such curriculum, that he applied to said school and was arbitrarily refused admission. The complaint alleges that he could clearly never obtain a license because the licensing process is under the arbitrary and monopolistic control of licensed funeral directors and embalmers. It is alleged that Art I and Art III of the Funeral Directors Licensing Act establishes a monopolistic economic hierarchy of existing licensed funeral directors.
The trial court held, inter alia, that plaintiff lacked sufficient interest to maintain the complaint, that plaintiff is not affected by the provisions of Art I, §§ 73.1 to 73.10a, and Art III, §§ 73.21 to 73.30 of chapter 111 1/2 (Ill Rev Stats), that no actual controversy exists between plaintiff and defendants upon which a declaratory judgment might be rendered, and that the said statute is constitutional. The court dismissed the complaint.
First, it should be noted that as to the charges that certain defendants are engaged in a conspiracy to destroy plaintiff's business, such a combination could exist or fail to exist irrespective of the constitutional status of the statute. The question regarding the statute is whether it is inherently defective, not whether ...