Opposition Brief — Memorial Gardens Assn., Inc. v. Smith

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SEP 16 1959;

JAMES R. BROWNING, @

IN THE

Supreme Court of the United States

Ocroser Term, 1959.

No. 288

MEMORIAL GARDENS ASSOCIATION, INC., GLEN-

DALE MEMORIAL GARDENS, INC., ann EVER-

GREEN MEMORIAL GARDENS, INC.,

Appellants,

vs.

ELBERT S. SMITH, as Avupiror or Pusitic Accounts OF

THE STATE OF ILLINOIS, AND EUGENE M. PRATT, as

Srate’s ATTORNEY OF THE County oF PerortA, STATE OF

ILLINOIS,

Appellees.

ON APPEAL FROM THE SUPREME COURT OF ILLINOIS.

APPELLANTS’ BRIEF OPPOSING MOTION

TO AFFIRM.

C. Severin BuscHMANN,

900 Circle Tower,

Indianapolis 4, Indiana,

Counsel of Record for Appellants.

Roy P. Hutt,

First National Bank Building,

Peoria, Illinois,

Pavut J. DeVat tr,

Donaup A. SCHABEL,

900 Circle Tower,

Indianapolis 4, Indiana,

Attorneys for Appellants.

BuscHMANN, Kriec, DeEVauLtt & ALEXANDER,

Of Counsel.

BECOMES DERI OL BELLIES OOS EY IONE OI POLO OE, MIE or

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INDEX.

ae PAGE

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PI PPRDONORC Sooo ica vic retdevetssacvers 1

PA Seer Pete Leeee Gare e oasih es eked Ke hw 2

Conclusion ..... Se Nag er ee Pe a 7

(‘ITATIONS.,

C'ases.

American Federation of Labor v. American Sash &

Doer Co., 330 U. Sr 538, 542 (1949)... 0. ices 6

Daniel v. Family Security Life Ins. Co., 336 U. S.

- | eeerreeee oe EEE Sree er ere 2,3

Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421

(1952)... cece eee cece e eee ence cence ce eeeeeerens 4,6

Lincoln Federal Labor Union v. Northwestern Iron &

metal Ue., S50 U. &. 525 (1989) 2. icc ceeleese 4

Louis K. Liggett Co. v. Baldridge, 278 U. S. 105 (1928) 3

Morey v. Doud, 354 U. S. 457 (1957)................ 4

Nebbia v. New York, 291 U. S. 502 (1934)............ 3, 4

Rule.

Rule 16(1), Supreme Court of the United States...... 1

ae

e

IN THE

Supreme Court of the United States

Ocroser TERM, 1959.

No. 288.

MEMORIAL GARDENS ASSOCIATION, INC., GLEN-

DALE MEMORIAL GARDENS, INC., axyp EVER-

GREEN MEMORIAL GARDENS, INC.,

Appellants,

vs.

ELBERT S. SMITH, as Avpiror or Pusiic Accounts oF

THE STATE OF ILLINOIS, AND EUGENE M. PRATT, as

State’s ATTORNEY OF THE County oF Peoria, STATE OF

ILLINOIS,

Appellees.

ON APPEAL FROM THE SUPREME COURT OF ILLINOIS.

APPELLANTS’ BRIEF OPPOSING MOTION

TO AFFIRM.

In view of the provisions of Rule 16(1) of this Court, it

is apparent that the appellees should have filed a motion

to dismiss the appeal, since the appeal is from a state

court. A motion to affirm lies only when the appeal is from

a federal court. However, assuming that the Court will

treat the appellees’ motion to affirm as a motion to dismiss,

the appellants will now proceed to answer the points made

in the appellees’ motion.

ARGUMENT.

The appellees contend on page 2 of their motion that in

Daniel v. Family Security Life Ins. Co., 336 U. S. 220

(1949), this Court recognized that ‘‘ante mortem contracts |

for funeral merchandise to be delivered at death are in-

herently so liable to abuse and so likely to result in im- |

~——~position as to render constitutional legislation regulating

or prohibiting such-eontracts.’” _ The appellees, however,

read too much into that case, for it does not-support such

a proposition. Moreover, the case is distinguishable on its Tt

facts. oe

The Daniel case involved a South Caroling statute pro-

hibiting undertakers from serving as agents for life insur-

ance companies. Most of the agents of the insurance com-

pany which challenged the statute were undertakers, and

the insurance contract which the company sold contem-

plated use of the policy’s proceeds to pay funeral expenses.

A ‘‘facility of payment’’ clause might justify payment of

proceeds to an undertaker for the insured’s funeral. The ‘

Court concluded that it could not say that South Carolina

was not entitled to call the funeral insurance business an

evil. In support thereof it mentioned the bene3ciary’s

tendency to deliver the policy’s proceeds to the agent-

undertaker for whatever funeral the money would buy, \

whether or not an expensive ceremony was consistent with

the needs of the survivors. There was also the likelihood

of overreach on the part of the insurance companies, and

the possibility of monopoly control.

Thus, contrary to the appellees’ contention, the Daniel

case did not involve pre-need contracts for sale of funeral

merchandise to be delivered at death. Moreover, such pre-

need contracts protect the purchaser against the evils at

pate

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which the South Carolina statute was directed. A person

who purchases funeral merchandise under a pre-need con-

tract knows what he wants and how much he is willing to

pay for it. The sale is transacted in a calm and dispassion-

ate setting. On the other hand, in the case of the purchase

of funeral merchandise and services at the time of death,

the undertaker usually makes the sale to a bereaved pur-

chaser under circumstances of great emotional stress.

Where the undertaker is also the insurance agent, a real

; ossibility of imposition exists, since the undertaker will

attempt to make a sale involving the entire proceeds of the

insurance policy.

~— This Court properly held in the Daniel case that South

Carolina was entitled to calt the funeral insurance business

an evil, and that the statute banning it had a relation to

the elimination of the evil. But the present appeal does

not involve funeral insurance or undertakers or any facts

comparable to the situation in the Daniel case. The Daniel

case, therefore, does not affect the substantialness of the

question presented by the instant appeal.

The appellees at page 3 of their motion also quote lan-

cuage from the Daniel case regarding the pronounced shift

of emphasis in the-view of this Court which has deprived

the words ‘‘unreasonable’’ and ‘‘arbitrary’’ of the content

which formerly was accorded them. The appellants, how-

ever, are well aware of this change in the view-point of this

Court. It was for this reason that the appellants in their

jurisdictional statement relied on language from Nebbia

v. New York, 291 U. S. 502 (1934), rather than on the case

of Louis K. Liggett Co. v. Baldridge, 278 U. S. 195 (1928),

in connection with the due process requirement that a law

shall not be unreasonable, arbitrary or capricious, and that

the means selected shall have a real and substantial rela-

tion to the object sought to be attained.

A good statement of the current due process philosophy

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of this Court is contained in Lincoln Federal Labor Union

v. Northwestern Iron & Metal Co., 335 U. S. 525 (1949),

where Mr. Justice Black, in delivering the opinion of the

Court, stated:

‘“‘This Court beginning at least as early as 1934,

when the Nebbia case was decided, has steadily re-

jected the due process philosophy enunciated in the

Adair-Coppage line of cases. In doing so it has con-

sciously returned closer and closer to the earlier con-

stitutional principle that states have power to legislate

against what are found to be injurious practices in

their internal commercial and business affairs, so long

as their laws do not run afoul of some specific federal

constitutional prohibition, or of some valid federal law.

See Nebbia v. New York, supra, and West Coast Hotel

“o. v. Parrish, supra, and cases cited. Under this

constitutional doctrine the due process clause is no

longer to be so broadly construed that the Congress

and state legislatures are put in a strait jacket when

they attempt to suppress business and industrial con-

ditions which they regard as offensive to the public

welfare’? _(335 U.S. at 536-7.)

Thus, while the recent decisions of this Court ‘leave de-——

batable issues as respects business, economic, and social

affairs to legislative decisions,’’ Day-Brite Lighting, Inc. v.

Missouri, 342 U. S. 421, 425 (1952), such decisions do not

repudiate the principle that the guaranty of due process

demands that a ‘‘law shall not be unreasonable, arbitrary

or capricious, and that the means selected shall have a

real and substantial relation to the object sought to be

attained.’’ See Nebbia v. New York, 291 U. S. 502, 525

(1934).

A further indication that the guaranties of the Four-

teenth Amendment are still applicable to state regulation

under the police power is found in the recent case of Morey

y. Doud, 354 U. S. 457 (1957). In that case the Court held

that the Illinois Currency Exchanges Act, which excepted

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the American Express Company from its operation, re-

sulted in a denial of equal protection of the laws to those

who were subjected to the requirements of the Act. The

Court found that the statutory classification was arbitrary

and had only a remote relationship to the Act’s purposes

or to business characteristics. While the case did not in-

volve the due process clause, it does demonstrate that a

state legislature can still transcend the limits of the Con-

stitution in purporting to legislate for the public welfare.

The appellees contend on page 6 of their motion that pre-

need selling of personal property, merchandise and services

in connection with the final disposition of head human

bodies is so precarious a venture that the State of Illinois

might have categorically prohibited the enterprise as one

in which the appellants have no constitutional right to en-

gage at all. The appellants, however, submit that the

record on the instant appeal contains no facts which would

entitle Illinois to call pre-need selling an evil. On the

contrary, an explication of the facts in the record, and of

which the court may take judicial notice, would demon-

_strate that pre-need selling of merchandise and services

for use in connection with the final disposition of dead

human bodies is a positive good and serves a real public

need.

Not only does the record not contain any evidence which

would support a legislative ban on pre-need selling, but the

statute itself does not purport to ban such activity but

only to regulate the manner in which it can be conducted.

The apparent legislative purpose in enacting the challenged

statute was not to prohibit pre-need selling but rather to

provide safeguards for the purchasers. However, the

means which the legislature selected to accomplish this end

utterly fail to safeguard such purchasers against fraud,

deceit, cheating and imposition. See pages 15-19 of the

jurisdictional statement. For example, the statute in

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question does not deal in terms of costs of performance.

Since sales of burial lots, markers and memorials are not

covered by the statute, the statute can be effectively cir-

cumvented by tying a sale of a burial vault to a sale of a

burial lot or marker and charging an inflated price for

the lot or marker and a nominal price for the vault. If

the seller then places the proceeds from the sale of the

vault in trust, he has fully complied with the challenged

statute, although the money deposited in the trust would

not be sufficient to complete theieontract when the time for

performance arrives.

The challenged statute was designed to hit directly at

the appellants’ way of doing business and at its form of

contract. The appellants’ way of doing business and form

of contract were formulated with a view of giving the

purchasers a maximum of assurance that the merchandise

and services sold will be delivered when the time for per-

formance arrives. What the statute actually accomplishes

is to drive the appellants and other honest and responsible

sellers out of the business of pre-need selling of burial

merchandise and services, but the way is left open for

unscrupulous sellers to practice fraud and deception on

unsuspecting purchasers. The statute is manifestly un-

reasonable, arbitrary and capricious in its operation, and

the means which it employs have no real or substantial

relation tc the object sought to be attained.

The present appeal does not call upon the Court to ‘‘sit

as a superlegislature to weigh the wisdom of legislation nor

to decide whether the policy which it expresses offends

the public welfare,’’ Day-Brite Lighting, Inc: v. Missouri,

342 U.S. 421, 423 (1952), but presents a justiciable question

which can be resolved by the application of rational stand-

ards. See Mr. Justice Frankfurter concurring in American

Federation of Labor v. American Sash & Door Co., 335

U. S. 538, 542 (1949), at page 557.

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Under no view of the record can it be said that the

question presented by this appeal is not substantial. It is

substantial because it has not been foreclosed by prior

decisions of this Court, and because there is a conflict of

decisions among the state courts of last resort which have

considered it, as shown at pages 10-11 of the jurisdictional

statement.

Conclusion.

For the foregoing reasons and the reasons contained in

the jurisdictional statement, the appellees’ motion to af-

firm the judgment appealed from should be denied, and the

Court should note probable jurisdiction,

Respectfully submitted,

C. Severin Buscumann,

Roy P. Hutu,

Pau J. DeVavtr,

Donato A. ScHaset,

Attorneys for Appellants.

BuscuMann, Kriec, DeVautt & ALEXANDER,

Of Counsel.

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