The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1899-12-04
JUDGE ALIENS OPINION.
The Sunday Closing Law Is Not Applicable
to Barber Shops
tue SHOPS ARE WORKS OF NECESSITY
He Discusses the statute and Itr
Application TO the Barber shop.
A Number of Authorities.


criminal district court OF Galveston
county:
The defendant In this case stands charg-
ed with violation OF the Sunday law in
that he cut customers hair at his bar
Der shop in Galveston 90 Sunday.
A demurrer to the complaint is urged by
the defendant, who contends there exists
no law in Texas against exercising the
ordinary business OF barber on Sunday.
The criminal code of Texas, article 1876
(willson's Statutes), provides: Any per-
sons who shall hereafter labor, or compel,
force or oblige his employees. workmen
or apprentices to labor on Sunday, or any
person who shall hereafter hunt game OF
any kind whatsoever on Sunday, WITHIN
one-half mile of any church, school house
or private residence shall be fined not
less than $40 nor more than $50"
This is followed by article 1917 of said
code (Willson's Statutes) which provides;
THE preceding article shall not apply to
household duties. works of necessity OF
charity; nor to necessary work on FARMS
or plantations in order to prevent the loss
boats or other water crafts, rail cars,
wagon trains, common carriers, nor TO the
delivery of goods by them, or the re-
ceiving or storing of said goods by the
parties or their agents 10 whom said goods
are delivered; not to stages carrying the
United States mail, or passengers, nor
TO foundries. sugar mills or herders VINO
have herd OF stock actually gathered
and under herd; nor to persons travelling;
II tfNlt
keepers of hotels. boarding houses and
restaurants and their servants; nor to
keepers of livery stables and their serv-
ants; nor to any person who oonscien-
tiously believes that the seventh or any
other day Of the week ought to be OBJ
served as the Sabbath. and who actually
refrains from business and labor on that
day for religious reason"
This last article permits and enumerates
certain things that may be done on sun
day, among them. works OF necessity or
charity. 1t is evident that for the S;4si
ness of barber 10 be lawful on Sunday.
it must come within and be included as
work ..of necesSit ".-.A. - ----I
What are works of necessity has SSen
construed by courts of high authority.
but the question here presented namely
as TO whether the business OF barber
is work of necessity has never been de-
cided by the court of criminal appeals
Of this State thus RELOCATING the lower
courts to outride authorities,
The supreme court OF Tennessee in State
VS.. Lolry, 9TH Bakers Rep, page 95 in
an opinion by the chief justice, expressly
held under a statute similar TO the stat
ute of Texas in its exemption OF works. of
necessity that one charged as tor-ap Of
Tense, because conducting his business as
barber on Sunday was not by reasonable
construction guilty of any offense under
that statute and holding that shaving,
etc., on Sunday was work of necessity.
In the case of Richmond VS.. Moore.
reported in 107 H., page 1873. most ey-
haustiNe opinion on the question of the
validity of contract made on Sunday
first deals with the question by stating
The first test 10 be: Is any provision OF
the criminal law violated ana could any
one be punished criniinally for the max 4
ing, or attempted to making OF such a
contract on Sunday? and . full discussion
is there made by the supreme court Of
Illinois on Sunday laws and 1t specially
says that 1t would be reductio ad ah-
surdum 10 say, that a person must be Grim
inally punished for writing letter to a
friend on Sunday or barber for shaving
his customer; and while obiter dictum in
the case 1t is none the less ain expression
from a most learned court as to construc-
tion OF Sunday statutes
Cases have been cited that SEEM to
hold contrary doctrine, but on examina-
ton most of them Will be found based on
statutes materially different from the
Texas statutes, Again, other Of the cases
seem to rest the decision on the facts of
the particular case. that is whether the
individual shaved really needed a shave
or really needed his hair cut.
In Stone vs.. Groves, i45 Mass. 1858. Mas.
sachusetts supreme court, where an old
and infirm man, was shaved in his own
house by barber on Sunday, it was held
no offense. But it is scarcely to be con
sidered that a man would waste his time
and spend his money at a barber shop
unless he needed shaving, or needed his
hair cut. The law would not presume a
man TO do such foolish thing, +
Some OF the decisions on the subject of
bath houses and barber shops refer to the
Injunction, that cleanliness is next to
Goodness" and that anything apperta!n-
ing 10 making man cleanly and present
ably and more tit 10 go to church. or TO
associate with his fellow-man can not, in
the nature OF things, be violative of such
statutes as the Texas Sunday law stat
utes.
What are works of necessity under the
Texas sunday statutes have been literally
and broadly construed as will be lounu In
the case OF Hennerdorf VS.. State by the
curt OF Appeals OF TexeS, ;. w. Rep,
'2b in which It was held that to operate
an ice factory on Sunday was no sHense.
because the temperature in the brine
watts would be so disturbed by csasing TO
perate on Sunday MS TO require more
time and labor to recover proper temp
erature again. In the same opinion ii
said mill may grind on Sunday, gas J
company may supply gas on Sunday. a
water company water. and dairyman I
milk.
In Nelson VS.. State. s S. w. 9a7, the
curt OF appeals OF Texas held il no
violation OF the law for a horse belong
ns TO stage line 10 be shod on Sunday
In the absence OF any decision by the !
curt OF criminal appeals of this StSte
n the precise point. and In view OF the
decisions Of such eminent courts OF last
esort outside of Texas, furnishing con-
'ruction as to what are works Of neces-
NY together with the generally liberal |
instructions by the court OF criminal
appeals of this State on other phases OF
pc SUNDAY LAW, this court feels constrain-
% 10 hold that no oifense against the laws :
!, Texas appears from the complaint IN
n's case. and the demurrer is accord
nsly sustained. the prosecution dismissed I
md the defendant discharged Il
A. C. Allen.
Judge Criminal District Court Of Calves !
ton County.