The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1900-01-08
A DISSENTING OPINION.
Assistant Attorney General John Does mol
Agree with Judge Allen.
BARRIERS NOT EXEMPT FROM SUNDAY LAW
that View Of the Matter Now
in Contention.

clarlng the occupation OF barber not In
violation OF the Sunday law The opin-
ion caused comment over the State and
has been frequently discussed. The Bar
bers' union opposed the construction placed
upon the law by Judge Allen, aud A. r.
Maxwell OF Houston, prominent member
Of that organization, wrote Attorney Gener.
Ia It's. Smith asking for his opinion on the
matter The attorney general turned the
letter over to his first assistant Hon.
Robert A. John, with the request that no
answer Nr Maxwell.
MIR. John. who is in Dallas representing
the State before the court OF criminal APP
peas. has prepared an interesting opinion
In which he Joins Issues squarely with
Judge Allen. A copy of the opinion has
1 been forwarded to Mr.. Maxwell. 1t fol-
lows.
A. f. Maxwell. Houston, Texas.
Dear Sir: am requested by the attor-
me- general 10 write you in response to a
letter asking II It would be violation OF
4 the Sunday law for harper shops to opeu
and pursue their usual vocation on that
dsy You enclose an opinion from Judge
A. c. Allen OF the criminal district court
FL
Il thas Bremen, relative to this subject I
n recosuize the ability OF the Judge who
NJ rendered this opinion. and for that reason
~ | nave some hesitaucy in attempting to
81 rontrovert the same. Nevertheless, | am
ii forced to dissgree with him upon the gem
n ers proposition that there is no law for
n bidding BARRIERS from pursuing their ordi-
q nary business on Sunday in this state.
"a will first call attention to his opinion.
81 After citing the statute which is as fol-
III lows: Article 1856 provides: Amy per-
~ son who shall hereafter labor or compel
ia fore of oblige his employees worhmep or
"a operatives to labor on Sunday, or any per-
III son who shall hereafter hunt game of any
Isl character whatsoever on Sunday within
"a one ahlf mile of any church. school house
81 or private residence, shall be fined not less
III than $40 nor more than $50" He then
III quotes the exception, which is article 1871
III Of the Penal Code, which provides that
M the preceding article shall not apply to
W household duties, works of necessity OF
X charity" and then specially enumerates
n certain employments which are to be ex-
III empted from the provisions of article 1856
"a The opinion rendered by Judge Allen pre-
"a sents the Issue clearly upon the r'roposi-
~ tion that, II the occupation q. barber is
~ work OF necessity. II would not be a
"a violation Of the law for him TO pursue the
a. same on Sunday. under the exemptions
IN set forth in article 1877 The converse OF
this proposition is equally true that Il
II the business OF barber Is not work
tH Of necessity 1t would be violation of the
EX law for him to pursue that occupation or
M Sunday. lie then quotes two authorities
after stating that the exact question ha'
not been decided by our carts. The flrs
- OF these is State VS. Lorry. Baxt. Rep
% This case is reported In 80 Am. Rep
l. tS6 Upon a critical inspection OF the
E case II will be seen that the court did no
E& hold that the barber business or the EN-.
&# ployment OF shaving, shampooing, etc.
M ordinarily pursued In the barbershop wa!
& work OF necessity. quote the follow
M ing excerpt from that opinion 1T follows
M that, although defendant is prohibited from
M following his vocation Of barbering oil
W sunday, yet as the statutue fixes the pen
W atty for such violation. his violation of the
M prohibited law is not lndictable as a mis-
< demeanor." They sought to indict LORI!
M under article 1896 Of the Tennessee Code
1874 which reads: When the Performance
m of any act is prohibited by statute, an,
& no penalty for the violation of such stat
& ute is imposed, the doing OF such act IL
#M misdedenanor 1t seems that the prose
)&# cution in that case was cast upon tn,
&8 ground that keeping open a barber shol
by defendant Lorry was common nuts
anoe and for that reason stated In tn.
opinion the court held that it was not
nuisance, and therefore affirmed the de
cision of the lower court that quashed tn,
Indictment In that case.
The second case cited by the Learned
Judge Is the case Of Richmond vs. Moore
~. HI 4Ss. The Judge admits that this
case IS but dicta, and to show that 1t 1.
absolutely without eplication to the con
struction OF the two articles OF our Pena
code above quoted quote the followins
excerpt from the same: Must person
De criminaly punished for writing let
yer 70 friend on Sunday, or barber FOL
spaNlng a customer. or person for sell
Ing to another a cigar This dcta re
ie,rlns to the barber. also refers TO thu
tooacconist wherein II says: "or per
son for selling to another a cigar snc
ye' 1t has been recently held, in effect
T Sy our court In searcy vs., state. 81 S
W.. NE, that the sale Of cigars on Sun
oay is violation OF the law.
nave not access to the third case o
stone We. Grove, 145 Mass. $50: but tina
accession seems to have been cast upon TIT
sround that barber might shave an oil
ana lnhrm man on Sunday; and indee'
M thit case In all probability was sur
rounded by certain peculiar circumstance
wnich made 1t an exception to the genera
rue, which has been held by numerou
aatnorities; that the running of barbe
supp on sunday is not work OF neces
sny although an isolated act OF shaving
person on Sunday might under peculia
circumstances be work OF necessity.
! therefore accept the proposition lai
uown by the judge except / controver
snem by the assertion that 1t has bee
universally held that a barber pursuin
q nus ordinary vocation on Sunday is nc
pursuing a work, either of charity o
necessity; and is, therefore. violatin
article 1856 of the Penal Code.
ny an inspection of the American an
4 q nngiish Encyclopedia of Law, volum
\; - page 5ii, and the notes. the definition
4 given OF what constitutes a work o
necessity, which has been followed |
|. sshoelsdorf's case. 25 APP. 5s7. cited b
&c Judge. The definition is as follows
a work OF necessity is not meant
Y mystical necessity. but any labor. bushes
work which Is morally ht and prope
L. De done on that day Il. e. Sunday un
the circumstances OF the particula
y se The encyclopedia continues wit
o. ne following qualification: THE neces
ny must be a real and not a fancy on
v mere must not be merely an honest belle
me cart Of the defendant that the ne
!. sssly exists. but the actual existence {
ne necessity must be shown; nor does Oh
,cept 9 embrace work which Is merele
onVe7isnt but not necessary In sus
aa,nine this proposition. on page a4i, IN
4 otoWing unfc ana aufhnrittee arc cited