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Eddy v. Board of Embalmers

December 31, 1917

EDNA T. EDDY, PETITIONER, V. THE STATE BOARD OF EMBALMERS, RESPONDENTS.


Young & Brown, for Petitioner.

Geo. B. Thatcher, Attorney-General, and E. T. Patrick, Deputy Attorney-General, for Respondents.

By the Court, Coleman, J.:

This is an original proceeding in mandamus, wherein petitioner seeks to compel the respondents, as members of the State Board of Embalmers, to issue to her a license to practice the profession or art of embalming.

It is alleged in the petition that petitioner is a resident of the State of Nevada, an that on the 2d day of October, 1916, the board of examiners of the state board of embalmers of the State of California, after submitting petitioner to a rigid written examination, issued to her a license to practice the profession or art of embalming in the State of California, pursuant to “An act to establish a state board of embalmers, defining the duties thereof, providing for the better protection of life and health, preventing the spread of contagious disease, regulating the practice of embalming in connection with the care

[40 Nev. 329, Page 333]

and disposition of the dead and providing penalties for the violation thereof,” approved April 16, 1915 (Stats. Cal. 1915, p. 80); that petitioner applied to respondents for a license to practice the profession or art of embalming in the State of Nevada, and tendered respondents the necessary fee therefor, but that respondents refused, and still refuse, to issue such license to her as requested.

To this petition a demurrer was filed, upon the ground that the petition did not state facts sufficient to entitle petitioner to the relief demanded. Later, and without waiving the demurrer, respondents filed an answer to the petition, in which certain issues of fact were raised. But since on the oral argument, as stated in respondents' brief, “it was virtually conceded that the decision in this case would turn upon the meaning of the word ‘shall' in the first line of section 9” of “An act to establish a state board of embalmers,” etc., approved February 20, 1909 (Stats. 1909, p.26; Rev. Laws, 4453), we will consider this matter upon the demurrer, as though no answer had been filed.

Section 9, above referred to, reads as follows:

“The state board of embalmers shall recognize licenses issued previous to the passage of this act, or at any other time by other state boards of embalmers, and state health authorities, and upon presentation of such licenses shall issue the regular license to holders of such license and certificate of competency.”

It is the contention of respondents that the word “shall” should be construed to mean “may,” and that when so construed it is in their discretion, pursuant to the rules adopted by them, to decline to issue a license when requested so to do, when such request is based upon an embalmer's license from the State of California.

A long list of authorities is cited in which the word “shall” was construed to mean “may.” Counsel for petitioner cites as many or more cases in which the courts have held the word “shall” to be mandatory. Whether or not the word “shall” should be construed to be mandatory or directory depends upon the intention of the

[40 Nev. 329, Page 334]

legislature in incorporating section 9 in the act, as such purpose may be gathered from the whole statute.

1. It is the contention of respondents that since, under our statute, all applicants for licenses, except those falling within the terms of section 9, are required to pass a rigid written examination and make actual demonstration on cadaver, section 9 should be so construed as not to require the respondents to issue a licence to an applicant holding a license from the State of California where, as it is contended, the passing of such a rigid examination is not a condition precedent to the obtaining of a license. Why should we presume that the legislature intended that such an interpretation should be placed upon section 9? If ...


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