Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1907-12-31
TUOUP UPHOLDS SUNDAY LAW
Sustains Police Judge in Filming Bar
Der for Working on Sunday.
CASE GOES TO SUPREME COURT
City, Prosecutor Daniel Thinks Tie
VIII Cause No More Arrests
Until Higher TrIbunaI
Gives Decision.

Caldwell 81 and costs for running his
barber shop on Sunday and refused to
release him from custody on the writ
of habeas corpus
In substance Judge, Troup decided the
term common labor as used IN the law
means usual and ordinary labor and not
manual OF unskilled labor. He holds that
the law prohibits all form of labor. skilled
or unskilled. on Sunday, except that per-
mitted by express terms OF the law and
works of necessity, charity or mercy. He
did not decide just what forms of labor
could be included among works OF neces-
sity, but said that was a question OF
fact to be determined In each case from
the facts adduced by the evidence.
Jefferis & Howell, attorneys for Cald-
well, Indicated they would take an i'm
mediate appeal to the supreme court and
Judge Troup fixed the supersedeas bond
at $50 II is hoped the appeal can be
presented to the supreme court at the
January sitting and that decision can be
had without much delay
City Prosecutor Daniel said Monday that
If the validity of the blue laws" is taken
up to the supreme court for decision he
will not file any more complaints until a
decision has been rendered by that tribunal.
In the matter of the persons arrested at a
dance in the Creighton hall Sunday night
he said the prosecution Of them remains
with the county attorney, as the statute
provides Tor either fine OF Imprisonment
for sporting" However. as the supreme
court has decided that sport refers ex-
clusively to field sports he thought It
likely that the county attorney would not
prosecute.
New Turn of Testimony.
The efforts OF those who are opposed TO a
rigid enforcement of the Sunday law may
take a new turn since the attempt TO null
lfy the law itself has failed. Isidor Zieg-
Ter and Frank 7. Ransom, attorneys for
the theater and other interests, are con-
templating a test Of the statute which pre-
vents a defendant from demanding a trial
in police court. II this statute could be
nulllhed jury would be asked for in each
OF the Sunday closing cases and it is be-
leved the convictions would be few and
the efforts at q rigid enforcement of the
law nullifed.
The decision of Judge Troup was listened
to by a large number of attorneys and
business men interested in the outcome Of
the test case.
At the outset Judge Troup said he could
not take cogniEance of the charges made
by the attorneys that the enforcement OF
the law was not undertaken in good faith.
The question, or motives. he said. did mot
enter. He then went into a searching dis
cussion OF Sunday observance laws from
the giving OF the Ten Commandments down
to the present time.
''The law In this country" he said, "can-
not rest on religious duty or doctrine
Those who ask for the enforcement of the
law on the grounds of religious duty have
absolutely no ground for such demand.
But the several states have the right to
provide for the physical and mental well
fare of their citizens. As such these laws
were enacted and as such they have been
upheld by the courts from the earliest
times to the present. That these laws may
promote the cause of religion and induce
more general observance of religious
duties of the day is Incidental"
One Day of Rest fer All.
Quoting from the preamble of the first
Sunday law Judge Troup declared it was
evidently the intent TO require everybody
as far as possible to take one days rest
in seven.
THE legislature might have fixed Tues
day or Friday" he said but it did fix on
Sunday as the day most convenient to be
observed by the largest number Of people.
This is a Christian nation and Nebraska
is Christian state and the Christian Sab
bath is an institution thoroughly instilled
in our laws and customs
Continuing Judge Troup said the extent
of the law depended on the construction
of the phrase common labor"
TT was argued by counsel" he continued,
with some earnestness, that common labor
meant manual labor of the more menial
or servile kind, requiring no skill. with
all due difference to the counsel / must
say that am wholly unable to agree with
that construction. Can 1t be said that under
this law the legislature had centered all its
interest in hod carriers, coal beavers and
laborers on the streets with no interest
at all in carpenters, BARRIERS, bankers and
the factories and workshops teeming with
tired toilers? Can II be said that II was
the intent TO make the hod carriers abstain
from working for wage whether he wanted
to or not and not require the same of the
other kinds of laborers? To allow the fac
tories and shops and banks and stores to
keep their doors wide open. 1t seems TO
me that the argument carries with its own
condemnation"
Common Labor Means Ordinary.
Common labor means usual labor, or
dinary labor customary labor at which
one employs himself. But more than this,
II means the labor ordinarily carried on
in any community. II is not claimed in
this case that barber shop is a necessity.
and for more than seventy-five years the
courts have been deciding it is not.
What is necessary and what is not is
question OF fact 10 be determined in each
case. The law affects drug store the
same as 1t affects any other store. The
druggist can no more dispose OF articles
the sale of which is not necessary on Sun
day than can the dry goods merchant.
The only difference is that in the drug
business more articles are kept for sale.
that are Of such nature that it is a work
Of necessity. charity or mercy to dispose
of them. The dry goods merchant might
dispose OF a piece OF muslin TO bandage
up the wounds OF an injured man. 1t is
probable the courts will be liberal in inter-
pretiRg what is necessity and what is not
when convinced that the motives were
good
Judge TToup gave a further reason
for denying the argument that the law
was special legislation the fact that IL
was passed in 1873 under the old constitu-
tion of 1870. which did not prohibit spe-
eiaI legislation. The preseut constitution