Practice. In that case judgment was reversed, it appearing that the justice below had, by an oral agreement between himself and one of the parties, extended the time in which he was required to render a judgment, although a rule of the municipal court provided as follows: "A stipulation to extend the time of the court within which to render judgment or make a decision may be entered into between parties or their attorneys on the record in the minutes of the trial or in a written stipulation signed to that effect." It was said: "To hold that a justice may, by an oral agreement between himself and one of the parties, extend the time in which he is required by law to render a judgment, would lead to grave abuse and open the door to fraud and perjury, and cannot be countenanced." A contrary view appears to have been taken in Apel v. O'Connor (1886) 39 Hun, 482, wherein it will be noted that the trial court was a county court, and not a special term of the supreme court, as in all but one of the cases hereinbefore set out. In that case it was held to be proper for the county court to grant a motion to settle the issues, although the application was not made in the time provided by the rules of the supreme court. The order appealed from was said to be within the discretion of the court, it being pointed out that it "might produce a denial of justice to forbid resort to the wisdom of a jury." In Re Chauncey (1884) 32 Hun, 429, it was held that the appellants had waived their right to object to a violation of a rule as to time of submitting requests to find. This rule, it was said, could undoubtedly be waived by consent of parties and the approval of the judge who tried the case. It did not appear by whom the rule in question had been established, but the case was tried at a special term. R. S. STATE OF WISCONSIN EX REL. ALOIS KEMPINGER, Appt., V. W. F. WHYTE et al., Constituting the State Board of Health, etc., Respts. Wisconsin Supreme Court - June 6, 1922. (Wis. 188 N. W. 607.) Constitutional law police power requiring undertaker to have em balmer's license. 1. The police power does not extend to requiring every undertaker to have an embalmer's license. [See note on this question beginning -prohibiting ancient calling. 2. A police regulation restricting to the extent of prohibiting an ancient, honorable, and necessary calling must justify its validity on the ground that it is essential to the public health, safety, convenience, comfort, or morals. [See 6 R. C. L. 221; 2 R. C. L. Supp. 68.1 on page 71.] class legislation requiring issuance of license to those in business on certain day. 3. A provision of a statute requiring undertakers to have embalmers' licenses, that such licenses shall be issued to all undertakers in business on a specified date, is invalid as class legislation. APPEAL by relator from a judgment of the Circuit Court for Dane County (Stevens, J.) quashing the alternative writ in a mandamus proceeding to compel defendants to issue an embalmer's license to relator. Affirmed. On Statement by Vinje, Ch. J.: Action of mandamus. The relator was, on January 1, 1921, engaged in the business of undertaking in the city of Oshkosh. September 9, 1921, he applied to the state board of health for an embalmer's license under $ 1409-3, Stat. 1921, and complied with the requirements of the statute. The board refused to issue the license on the ground that §§ 1409-1, 1409-3, and 1409-5 of the Statutes of 1921, enacted by the passage of chapter 464, Laws of 1921, were unconstitutional. So far as material to the questions raised by the appeal that statute reads: "Section 1409-1. 1. The state board of health is hereby authorized and empowered to determine the qualifications necessary to enable any person to lawfully and properly embalm dead human bodies and disinfect the premises where such bodies may have been, and to adopt and enforce such other rules and regulations governing the education, examination, and licensing of funeral directors and embalmers as said board may consider necessary. The said board shall appoint a committee of examiners for the examining of embalmers, consisting of three licensed embalmers who, under the supervision of the state board of health, shall conduct all examinations and shall submit to the board its recommendations. The state board of health shall issue an embalmer's license to all persons who successfully pass such examination. No person shall embalm any dead human body, unless he or she shall hold a valid, unrevoked and unexpired license from the Wisconsin state board of health authorizing him or her to practise the art of embalming. It shall be unlawful for any person not a licensed undertaker, funeral director or embalmer, as herein provided, to act as an embalmer, assistant embalmer, undertaker or funeral director, or to prepare dead human bodies for burial, cremation, or transportation, except under the immediate and personal direction of a licensed embalmer, and any person practising the art of embalming, or advertising or holding himself out to the public as an embalmer, or undertaker, or funeral director, or using any other title intending to imply or designate him or her as an embalmer, undertaker or funeral director by card, sign, solicitation or otherwise without first obtaining a license from the state board of health, shall be deemed guilty of a violation of this section. Nothing in this section shall prohibit a person from caring for and burying the deceased members of his own family or caring for and burying the dead without compensation. The "2. The term 'embalming' as used in this section shall be taken to mean the disinfection or preservation of the dead human body, entire or in part, by the use of chemical substance, embalmer's fluids or gases on the body, or by the introduction of the same into the body, by either arterial or cavity embalming or hypodermie injection of fluid ordinarily used in embalming. finding of any such chemical substance, fluid or gas, ordinarily used in embalming, or any trace, evidence or appearance thereof upon a dead human body, the use of which is prohibited by law, except by a licensed embalmer, or the placing thereof upon a dead human body by any person who is not a holder of a valid, unrevoked and unexpired. embalmer's license from the state board of health, shall constitute prima facie evidence of the violation of the terms of this section: Provided, that nothing in this section shall apply to any assistant embalmer who prepares dead human bodies for burial or cremation under the personal supervision of a licensed embalmer. Any undertaker or funeral director who on January 1, 1921, was engaged in the undertaking business shall be licensed by the state board of health without examination upon the payment to the state board of health of the fee required by § 1409-3.” (— Wis. —, 188 N. W. 607.) The relator thereupon petitioned for a writ of mandamus to compel the board to issue him a license. An alternative writ was issued, and the board, through the attorney general, moved to quash the writ. From a judgment quashing the writ the relator appealed. Messrs. Bouck, Hilton, Kluwin, & Dempsey, for appellant: Chapter 464 of the Laws of 1921, as enacted, is constitutional. People v. Ringe, 197 N. Y. 143, 27 L.R.A. (N.S.) 528, 90 N. E. 451, 18 Ann. Cas. 474; Cream City Bill Posting Co. v. Milwaukee, 158 Wis. 86, 147 N. W. 25; State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis. 468, 107 N. W. 500; Wyeth v. Thomas, 200 Mass. 474, 23 L.R.A. (N.S.) 147, 128 Am. St. Rep. 439, 86 N. E. 925. Messrs. William J. Morgan, Attorney General, and Ralph M. Hoyt, for respondents: The so-called "waiver clause" of the law in question, which provides that "any undertaker or funeral director who, on January 1, 1921, was engaged in the undertaking business, shall be licensed by the state board of health without examination," is invalid. Wyeth v. Thomas, 200 Mass. 474, 23 L.R.A. (N.S.) 147, 128 Am. St. Rep. 439, 86 N. E. 925; People v. Ringe, 197 N. Y. 143, 27 L.R.A. (N.S.) 528, 90 N. E. 451, 18 Ann. Cas. 474; State v. Rice, 115 Md. 317, 36 L.R.A. (N.S.) 344, 80 Atl. 1026, Ann. Cas. 1913A, 1247; Watson v. Maryland, 218 U. S. 173, 54 L. ed. 987, 30 Sup. Ct. Rep. 644; State v. Whitcom, 122 Wis. 110, 99 N. W. 468. Regardless of the validity of the waiver clause, taken by itself, the act, as a whole, is invalid. Smith v. Texas, 233 U. S. 630, 58 L. ed. 1129, L.R.A.1915D, 677, 34 Sup. Ct. Rep. 681, Ann. Cas. 1915D, 420; Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; People v. Ringe, 197 N. Y. 143, 27 L.R.A. (N.S.) 528, 90 N. E. 451, 18 Ann. Cas. 474; Wyeth v. Thomas, supra; State v. Rice, 115 Md. 317, 36 L.R.A. (N.S.) 344, 80 Atl. 1026, Ann. Cas. 1913A, 1247; Keller v. State, 122 Md. 677, 90 Atl. 603. Vinje, Ch. J., delivered the opinion of the court: The appeal raises the question of the constitutionality of chapter 464 of the Laws of 1921, appearing in the Revised Statutes of 1921 in chapter 76cc, under the title, "Practice of Embalming." Chapter 464 declares the act to be one "relating to the licensing of embalmers." It is argued by the appellant that the words "undertaker" and "embalmer" are used synonymously in the statute, that both may be regulated and licensed, that the practice of embalming has become practically universal, and that the public interest is promoted by the statutory regulation of undertakers. If it be conceded that the words "undertaker" and "embalmer" are used interchangeably, then it follows that an undertaker cannot carry on his business as such without an embalmer's license; and, if they are not used interchangeably, it likewise follows that an undertaker must have an embalmer's license before he can conduct an undertaker's business. So the question is presented: Can the legislature require an embalmer's license from an undertaker as a condition for pursuing the latter calling? For the purposes of the present case it will be assumed that both undertakers and embalmers can be required to be licensed under reasonable regulations. But the precise question for determination is whether the business of an undertaker is so like unto or identical with that of an embalmer as to permit of them being put under one classification, so that one cannot be an undertaker without also being an embalmer. The statute itself defines embalming as: "The disinfection or preservation of the dead human body, entire or in part, by the use of chemical substance, embalmer's fluid or gases on the body, or by the introduction of the same into the body, by either arterial or cavity embalming or by hypodermic injection of fluid ordinarily used for embalming." If we turn to dictionaries, we find that the Century defines an undertaker as "one whose business is to make preparations for the burial of the dead and manage funerals;" Webster's International, as "one whose business is to prepare the dead for burial and take charge and management of funerals;" and the Standard, as "one whose business it is to arrange for burying the dead and to oversee funerals." It is apparent from these definitions of an undertaker and the statutory definition of embalming that the two are vitally different. An embalmer, as such, does not bury the dead; he does not take charge of funerals; he does not dress the body, procure the coffin, or do the many other things that an undertaker does. His sole function as an embalmer is to so treat the body by means of chemical substance, embalmer's fluids, gases administered either externally or internally, or both, as to disinfect and preserve the body. Embalming is not required by any law of the state. It is not essential to public health, safety, convenience, or comfort under present conditions of burials and cremations. It is not universally practised, especially in rural communities. Just what proportion of buried bodies are embalmed in the state there is no evidence to show. But it is a matter of common knowledge that the number of unembalmed bodies annually buried in this state is large. Some have religious scruples against embalming because it mutilates the body of man, made in the image of God, just as others have religious scruples against cremation. Since embalming is not compulsory, since it is not universally practised, why require every undertaker to have an embalmer's license before he can bury the dead? The qualifications required for obtaining an embalmer's license would add nothing to his fitness for burying an unembalmed body. It would add nothing to public health, safety, convenience, comfort, or morals. A police A police regulation restricting to the extent of prohibition an law-prohibiting ancient, honorable, ancient calling. and necessary calling must justify its validity on the ground that it is essential to the Constitutional -police powerrequiring under taker to have embalmer's public health, safety, convenience, comfort, or morals. This statute has no such sanction. It was beyond the power of the legislature to make it a valid enactment. State v. Redmon, 134 Wis. 89, 14 L.R.A. (N.S.) license. 229, 126 Am. St. Rep. 1003, 114 N. W. 137, 15 Ann. Cas. 408. As was aptly stated by the supreme court of Massachusetts in Wyeth v. Board of Health, 200 Mass. 479, 23 L.R.A. (N.S.) 147, 128 Am. St. Rep. 439, 86 N. E. 927, decided in 1909: "Except in those cases where embalming is desired for a special reason, we know of nothing connected with the duties of an undertaker that calls for the work of a licensed embalmer. When such work is desired, a proper person can be procured to perform it. In cases generally, it is not an essential part of the duties of an undertaker, and it has no relation to the public health." The same view is also held by the court of appeals of New York in People v. Ringe, 197 N. Y. 143, 27 L.R.A.(N.S.) 528, 18 Ann. Cas. 474, 90 N. E. 451, decided in 1910, and by the court of appeals of Maryland in State v. Rice, 115 Md. 317, 36 L.R.A. (N.S.) 344, 80 Atl. 1026, Ann. Cas. 1913A, 1247, decided in 1911. -class legis license to those certain day. The provision of the statute that "any undertaker or funeral director who on January 1, 1921, was engaged in the undertaking business, . shall be licensed by the state board of lation-requiring health without ex- issuance of amination," is spe- in business on cially void for the reason that a person engaged in one kind of business, an undertaker, that bears no necessary relation to the qualifications of another business, an embalmer, is declared qualified for the latter. As has already been pointed out, an undertaker, as such, does not have to understand embalming. But the legislature said he must understand embalming, and then it said that, if (— Wis., 188 N. W. 607.) he was an undertaker on January 1, 1921, he was conclusively presumed to understand embalming, though he may not have been in the undertaking business but a single day; namely, January 1, 1921. Such attempted classification bears no relation to the subject-matter, and is void. It is first a declaration that something more than knowledge of the undertaking business is required, and then a declaration that this is not true, that not even a knowledge of the undertaking business is required, but merely the fact that the applicant for a license was in that business on a certain day. If the statute were one providing for an undertaker's license as an undertaker, and it declared that those who were in that business on a certain day, and had been in such business for a specified reasonable length of time, should be entitled to a license as an undertaker without examination, an entirely different question would be presented. In such case a presumption would arise that the prosecution of a business for a certain length of time would qualify one for a continuance in that business. But we have here no such case. We concur in the trial court's opinion, where he says: "It is ap- ANNOTATION. Validity of statute or ordinance in relation to undertakers or embalmers. Cases involving restrictions on the location of the business of undertaking will be found collected in the note in 3 A.L.R. 966. While the point has not been frequently passed on, there seems to be no question but that the business of undertaking is subject to statutory regulation. Com. v. Goodrich (1866) 13 Allen (Mass.) 546; Yeadon v. White (1908) 36 Pa. Super. Ct. 362. As was pointed out in People v. Ringe (1910) 197 N. Y. 143, 27 L.R.A. (N.S.) 528, 90 N. E. 451, 18 Ann. Cas. 474, the health and general welfare of the community justify the regulation of the business of handling dead bodies, by reason of the possibility of contagion. To like effect, see State v. Rice (1911) 115 Md. 327, 36 L.R.A. (N.S.) 344, 80 Atl. 1026, Ann. Cas. 1913A, 1247; Keller v. State (1914) 122 Md. 677, 90 Atl. 603; Wyeth Board of Health (1909) 200 Mass. 474, 23 L.R.A. (N.S.) 147, 128 Am. St. Rep. 439, 86 N. E. 925, and People v. Harrison (1915) 170 App. Div. 802, 156 N. Y. Supp. 679, affirmed in (1916) 219 N. Y. 562, 14 N. E. 1076. Thus, laws may be passed requiring an undertaker to procure a license before engaging in business. See People v. Ringe, People v. Har |