rison, and State v. Rice (Md.) supra; Keller v. State (1914) 122 Md. 677, 90 Atl. 603.

In the case of Keller v. State (Md.) supra, the court upheld the validity of a statute which required that all who practised, or thereafter intended to practise, the business of undertaking, must register with the board of undertakers, and must obtain from the board a license for such practice, which license would be granted them on the payment of a fee, provided that, on examination, they should be found possessed of the character, skill, and knowledge deemed requisite for the business. The court, quoting from the decision in the case of State v. Rice (Md.) supra, said: "The requirements that the applicant for a license shall be possessed of skill and knowledge in undertaking as well as a reasonable knowledge of sanitation, preservation of the dead, disinfecting the bodies of deceased persons, apartments, clothing, and bedding in case of death resulting from infectious and contagious disease, are all within the proper exercise of the police power because of their relation to public health."

The requirement of the giving of bond in a moderate amount to secure the performance of the duties of undertakers is not objectionable. Com. v. Goodrich (Mass.) supra.

Likewise, a requirement that undertakers shall obtain permits for the burial of bodies is not unreasonable. Yeadon v. White (Pa.) supra.

In State v. Norvell (1916) 137 Tenn. 82, L.R.A.1917D, 586, 191 S. W. 536, the court upheld the validity of a statute which imposed on an undertaker the duty of obtaining certain information concerning the deceased person for whom he sought a burial permit, such information to be filed as a death certificate, as a condition precedent to the granting of the permit. The statute was said to impose no undue burden on the undertaker. Admitting that these duties might put the undertaker to some trouble, the court said: "Organized society is entitled to demand such services of any citizen, however, for the

health and safety of all, just as, for the same reasons, the property of any citizen may be destroyed without compensation. The undertaker is in a position to render this service to the state in most cases without special effort. His charges are ordinarily sufficient to cover this additional labor imposed by the statute, if he were entitled to compensation for it."

The case of Miller v. Johnson (1921) 110 Kan. 135, 202 Pac. 619, involved a statute which provided for the adoption, by the state board of embalming, of rules and regulations relating to the practice of embalming dead human bodies and the transportation thereof. Of this statute the court said: "No extended discussion is necessary on the question whether the legislature may create an official board and clothe it with power to make reasonable rules for the accomplishment of the purposes of its creation, and prescribe that the violation of such rules, to be afterwards formulated by the board, shall constitute a misdemeanor. That matter is settled."

But a statute in effect forbidding any person from performing the ordinary duties of an undertaker without first having obtained a license as an embalmer is invalid as being an unreasonable restriction on the liberties of the people of the state; for the public health does not require the regulation of the business of embalming, and that business has no necessary connection, so far as concerns the public health, with the business of undertaking. State v. Rice (1911) 115 Md. 317, 36 L.R.A. (N.S.) 344, 80 Atl. 1026, Ann. Cas. 1913A, 1247; Wyeth v. Board of Health (1909) 200 Mass. 474, 23 L.R.A. (N.S.) 147, 128 Am. St. Rep. 439, 86 N. E. 925; People v. Ringe (1910) 197 N. Y. 143, 27 L.R.A. (N.S.) 528, 90 N. E. 451, 18 Ann. Cas. 474. And see the reported case (STATE EX REL. KEMPINGER V. WHYTE, ante, 67). In the last-named case, the court, citing the three cases preceding, declares that such a statute can find no sanction as being essential to the public health, safety, convenience,

comfort, or morals. A clause of the statute which provided 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 further held to be void for the reason that an undertaker-a person in one business was thereby declared to be qualified for another business unrelated thereto; viz., embalming.

In the case of People v. Ringe (1910) 197 N. Y. 147, 27 L.R.A.(N.S.) 528, 90 N. E. 451, 18 Ann. Cas. 474, it was provided by the act under consideration that no person should be licensed as an undertaker unless he had been employed as an assistant to a licensed undertaker continuously for a period of at least three years. Holding the act to be invalid, the court said: "The provisions of the statute requiring that the service must be continuous, and arbitrarily prohibiting the issuing of a license to a person to engage in the business of undertaking unless such person has been an assistant to a licensed undertaker for the time therein specified, unnecessarily interferes with the common-law right to engage in a lawful business. It makes a particular form of acquiring skill and knowledge essential, and forfeits the right to count the time so engaged in that particular education at each time when there is a break in the continuity of the service."

In People v. Harrison (1915) 170 App. Div. 802, 156 N. Y. Supp. 679, affirmed in (1916) 219 N. Y. 562, 114 N. E. 1076, the difference between the provisions of the statute under consideration and the provisions as they existed when the case of People v. Ringe (N. Y.) supra, was decided, was the elimination of the provision to the effect that no person could be granted a license as an undertaker unless he held a license as an embalmer, the amendment of the provision with respect to firms, "and the substitution for the provision requiring three years' consecutive service as an apprentice of the provision requiring two years' service in the aggregate

in that capacity." It was contended that these changes in the law met the criticism of the court in People v. Ringe (N. Y.) supra, but the court held that they did not, for the statute still required that the skill and knowledge requisite should be acquired in a particular manner. It was said: "I am unable to perceive any theory upon which the public health or welfare requires, as a condition precedent to carrying on the business. of an undertaker, not involving the embalming of dead bodies, service as a registered apprentice with an undertaker for a period of two years. The public health and welfare may require, as the legislature has required, an examination of applicants for such licenses with respect to sanitation, disinfection, and the preparation and care of bodies for burial or transportation; and the examination might well be extended to the laws and health regulations applicable to the care and interment of the dead, depending upon the cause of death; but it is, I think, manifest that the knowledge essential to qualify one to enter an examination for a license as an undertaker might be acquired in a medical or other school for such purpose, or by special training and observation, without actually serving as an apprentice; and, in any event, the requirement of two years' service in such capacity is unreasonable."

In Miller v. Johnson (1921) 110 Kan. 135, 202 Pac. 619, the court, while upholding the power of the legislature to create a board of embalmers clothed with authority to make reasonable rules to accomplish the purpose of its creation, declared to be unreasonable and void a rule requiring that a body, before it might be transported, must have been embalmed for at least twelve hours, must have been tagged with a yellow paster, and that an embalmer's certificate must have been prepared and forwarded to the state board of embalmers. There was also other clerical work to be performed in connection therewith. Another rule of the board provided for the revocation of the license of a licensed embalmer as

a penalty for the violation of any of the rules of embalming. It was said: "For the purposes of respectful treatment and decent interment there is vested in the relatives of a dead person, primarily in his next of kin, a quasi property interest in the body of the deceased, . and what the relatives might do themselves they might lawfully authorize the plaintiff to do for them. While the transportation of the dead bodies for considerable distances, or by rail, or through populous centers, where there is danger of infection or contagion, and the like, wherever the public health or safety may demand it, may be properly subjected to reasonable rules of some official body like the state board of health or the state board of embalmers, yet the rule applied here-requiring Mr. Archibald's body to be embalmed for twelve hours, and to be tagged with a yellow paster, and that a permit for its removal be obtained, etc., before it could be brought home-was clearly unreasonable and was an undue interference with the rights of the relatives of the deceased and of the plaintiff, their employee. Disregard of such an unreasonable rule gave no just ground to cancel his license to practise his profession."

A provision of a municipal ordinance requiring undertakers to procure licenses is invalid if it is intended merely to secure the enforcement of an invalid prohibition against the introduction of dead bodies into a municipality. Austin v. Murray (1834) 16 Pick. (Mass.) 127.

In Smith v. Perkins (1916) 112 Miss. 870, 73 So. 797, the court had before it a statute which required the payment of a privilege license by "each dealer in coffins . . . in all cities, if dealer be an undertaker, $100," and provided further as follows: "If any dealer in coffins

is an embalmer, or employs an embalmer in connection with his business, in that event, he shall pay an additional tax of $10. None of the foregoing provisions shall apply to a merchant who carries coffins in stock and pays a privilege tax on the stock. But such merchant who car

ries coffins in stock and pays a privilege on the stock shall pay a tax of $5 in addition to the tax required of him as a merchant." The appellee had paid his privilege tax as a merchant and the $5 additional required by the statute, and therefore claimed to be free from further liability thereunder. The court said: "The business of an undertaker is a distinct business or profession. The undertaker takes charge of the corpse, prepares it for burial, and attends to its interment. If a merchant dealing in coffins as part of his stock may escape the undertaker's tax, it is easy to see that all undertakers could escape by supplying themselves with an insignificant stock of goods. It is difficult to imagine that the legislature intended to thus favor a selected class of merchants. If this is a proper construction of the statute, we find that an undertaker with a stock of coffins worth $500 would have to pay $100, while a merchant with a stock of coffins worth $1,000 would get off with his undertaker's business by the payment of $5. We are unable to attribute this sort of discrimination to the lawmakers. To make this statute a valid exercise of the legislative power a different construction must be found, if it can be reasonably done. We believe that it was the intention of the legislature to require the payment of $100 by all undertakers, without reference to whether the undertaker also sells merchandise or not."

The decision of the court in Smith v. Perkins (Miss.) supra, was followed in Johnson v. Long Furniture Co. (1917) 113 Miss. 373, 74 So. 283, wherein the court held to be void, as denying the equal protection of the law to people not merchants, that clause of the statute which undertook to except from taxation as undertakers a certain class who had paid a privilege tax as merchants. "This clause," said the court, "could be separated from the body of the act on the principle that where a part of a statute is unconstitutional, and can be separated from the main statute without impairing the act as a whole, it may be done.” R. S.

the 160 acres which he owned, and was a bona fide attempt on his part to comply with the law.

The assessor, in making up the rolls for the year 1908, did not copy exactly the return made by Schroeder, but entered an assessment against him for the "SW1, Sec.

Tp. 17, R. 5 E." Under this assessment Schroeder paid the taxes. levied, intending thereby to pay the taxes upon the 160 acres of land which he owned, and this payment was accepted by the treasurer of Bernalillo county.

The land described in this assessment would be located in Sandoval county, and not in Bernalillo county, in which the assessment was made.

For the year 1908 the assessor made an additional assessment against "unknown owners," and there correctly described and assessed the lands owned by Schroeder as the "S. W. 1, Sec. 17, Tp. 9, R. 3 E." Schroeder had no actual notice or knowledge of this assessment.

After Schroeder had paid the taxes under the assessment above set out, containing the incorrect description of his lands, the land was sold under the assessment to "unknown owners," and such proceedings were had that the tax title thus instituted became vested in the defendant A. E. McGlashan under a tax deed from the county. Later McGlashan and his wife conveyed the land by warranty deed to D. V. Wardall, who, with his wife, and likewise by warranty deed, conveyed the premises to J. J. Weisendanger, one of the appellees here. The assessment to "unknown owners," the sale made under it to McGlashan, and the subsequent conveyances to Weisendanger, all appear to be regular.

The tax sale was made during the year 1909, and is therefore governed by the provisions of § 25, chap. 22, Laws 1899, which has frequently been before this court, the latest case being Chisholm v. Bujac, N. M. 202 Pac. 126, decided

at this term. This section expressly permits a tax sale made under that law to be attacked on the ground that the tax had been paid before the sale. In this respect it is merely declaratory of the rule which would exist without it. Nonpayment of the tax is an essential foundation for every tax sale.

The question in this case is whether payment of the tax has in fact been shown; or, in other words, whether payment under this assessment, which improperly described the land, was good payment on the land he owned. It is conceded that appellant intended by this payment to pay the tax on his land, and believed that he was doing so. Since the treasurer of the county accepted the money, it must be assumed that he understood it was payment on the same land, for he certainly would not knowingly accept the payment of taxes upon land not within his county. We have, therefore, a case where the owner has paid money to the county as taxes on a certain piece of land, and the county has accepted it as payment on that land, although in fact the land was not properly described on the tax roll, and can only be identified by proof of circumstances wholly apart from the roll itself.

The assessment under which this tax was paid was not a valid one. It would not have supported the tax sale based upon it. On the record presented to us, the assessment to "unknown owners" was a valid assessment, and the tax sale based upon it was regular on its face. The conclusion that this assessment was valid necessarily follows from the decision of this court in Knight v. Fairless, 23 N. M. 479, 169 Pac. 312, in which this court held that an assessment of a specific piece of property to "unknown owners" could not be attacked by proof that the owner had attempted to include it in another assessment which did not describe it. We see nothing in the present record to differentiate that case from this one in that regard. But Knight v. Fairless did