Opinion
12-28-1905
STATE v. BERGFELDT.
James F. O'Brien, for appellant. [41 Wash. 235] Charles O. Bates and Walter M. Harvey, for the State. [41 Wash. 236] Cutts & Dorety, amici curiae.
Appeal from Superior Court, Pierce County; W. H. Snell, Judge.
Alfred Bergfeldt was convicted of carrying on the business of barbering on Sunday, and appeals. Affirmed.
Rudkin, J., dissenting.
James F. O'Brien, for appellant.
Charles O. Bates and Walter M. Harvey, for the State.
Cutts & Dorety, amici curiae.
PER CURIAM.
The defendant was informed against for the crime of carrying on the business of barbering on Sunday, in violation of the act of March 7, 1903 (Laws 1903, p. 68, c. 55). A demurrer interposed to the information was overruled. Thereafter the case was submitted to the court on agreed statement of facts. The agreed statement admitted facts constituting a violation of the act, and set forth by way of defense that the defendant is a Seventh Day Adventist and conscientiously observes the seventh day of the week, commonly called Saturday, and performs no labor of any kind on that day; that he believes the right is guarantied him to work six days of the week, and to refrain from work on the seventh; that he further believes that it is impossible for him to make a living in his business without keeping his place of business open six days of the week. The court adjudged the defendant guilty, and from the judgment and sentence pronounced against him this appeal was taken.
The only ground of demurrer, aside from the question of the validity of the statute, is that it does not sufficiently appear from the information that the acts complained of were committed on Sunday. The information recites that the appellant is accused of the crime of carrying on the business of barbering on Sunday, and charges that on the 10th day of April, 1904, the appellant unlawfully carried on the business of barbering on Sunday. While the information does not charge in direct terms that the 10th day of April, 1904, was Sunday, yet the court will take judicial notice of that fact, and this, coupled with the further allegation that the appellant carried on the business of barbering on Sunday, on that day, shows with sufficient certainty that the acts complained of were committed on Sunday. The first objection urged against the validity of the statute under which the information was filed is that the act is amendatory of section 7251, Ballinger's Ann. Codes & St., and that the object of the act is not set forth in the title, and the act as amended is not set forth at full length, as required by our Constitution. This question was decided adversely to the appellant in Re Dietrict, 32 Wash. 471, 73 P. 506.
The next contention is that the act violates section 12 of article 1 of the state Constitution, which provides that 'no law shall be passed granting any citizen, class of citizens, or corporation, other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens and corporations,' and also section 1 of the fourteenth article of amendment to the Constitution of the United States, which provides that 'no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.' It is further contended that the act is unconstitutional as to those who conscientiously believe in the observance of the seventh day of the week. The power of the Legislature to enact a general law prohibiting all labor on Sunday, excepting works of charity or necessity, is now conceded on every hand. It is likewise conceded that such regulations are civil in character, and apply to all persons within the state--to those who believe in the observance of the first day of the week, or the seventh day of the week, as a religious duty, and to those who believe in no religious observance whatever. These propositions are so well settled that it requires no citation of authorities to sustain them. 27 Am. & Eng. Enc. of Law (2d Ed.) 390, 391. There is, however, a sharp conflict of authority as to the power of the Legislature to enact a law prohibiting the carrying on of a particular occupation such [83 P. 178.] as barbering on Sunday. Such laws have been sustained by the courts of New York, Michigan, and Oregon. People v. Havnor, 149 N.Y. 195, 43 N.E. 541, 31 L. R. A. 689, 52 Am. St. Rep. 707; People v. Bellet, 99 Mich. 151, 57 N.W. 1094, 22 L. R. A. 696, 41 Am. St. Rep. 589; Ex parte Northrup, 41 Or. 489, 69 P. 445. On the other hand, their validity has been denied in Illinois, California, and Missouri. Eden v. People, 161 Ill. 296, 43 N.E. 1108, 32 L. R. A. 659, 52 Am. St. Rep. 365; Ex parte Jentzsch, 112 Cal. 468, 44 P. 803, 32 L. R. A. 664; State v. Granneman, 132 Mo. 326, 33 S.W. 784.
The arguments in favor of and against the validity of such statutes are fully set forth in the decisions referred to, and will not be repeated here. Petit v. Minnesota, 177 U.S. 164, 20 S.Ct. 666, 44 L.Ed. 716, is also cited in support of such laws. The law of Minnesota involved in that case prohibited all Sunday labor, excepting works of necessity or charity, and provided that Sunday barbering should not be deemed a work of necessity or charity. The Supreme Court of the United States held, first, that the proviso took nothing from the statute, as barbering was not a work of necessity or charity; and, second, that the classification was not so palpably arbitrary as to bring the law in conflict with the Constitution of the United States. The question has been twice before this court, first, in the case of Tacoma v. Krech, 15 Wash. 296, 46 P. 255, 34 L. R. A. 68, where an ordinance prohibiting barbers from pursuing their ordinary calling on Sunday was declared unconstitutional, following the cases above cited from Illinois, California, and Missouri; and, second, in State v. Nichols, 28 Wash. 628, 69 P. 372, a prosecution for the violation of the Sunday closing law, found in section 7251, Ballinger's Ann. Codes & St. In the case last cited the case of Tacoma v. Krech was declared overruled. It was contended in argument before this court that State v. Nichols was based on a different statute, and that the point decided in Tacoma v. Krech was not involved. However that may be, a majority of the court is now of opinion that the act in question is constitutional, and that Tacoma v. Krech was properly overruled.
This leads to an affirmance of the judgment.
RUDKIN, J., does not concur in this conclusion.
He thinks the act in question, without right and without reason, denies to an inconsiderable portion of our population the right to pursue their ordinary calling on Sunday, while that privilege or immunity is enjoyed by every other laborer and artisan in the state, and that while, in a technical sense, the act applies to all persons within the state, yet in its practical operation it affects barbers alone and denies to them that equality before the law which our Constitutions were established to maintain. He does not consider these views in conflict with Petit v. Minnesota, supra, as no such discrimination appeared there.