Com. v. Dextra

• Decision Date: 12 November 1886
• Citation: 8 N.E. 756,143 Mass. 28
• Parties: COMMONWEALTH v. DEXTRA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 28

8 N.E. 756

COMMONWEALTH v. DEXTRA.

Supreme Judicial Court of Massachusetts, Worcester.

November 12, 1886

COUNSEL

J.E. Sullivan, for defendant.

OPINION

The only question which arises is, is the keeping open a barber-shop on the Lord's day, by the owner, for the purpose of cutting hair and shaving beards, a work of necessity or charity. By a work of "necessity" is not meant a physical and absolute necessity; but any labor business, or work which is morally fit and proper to be done on the Lord's day, under the circumstances of the particular case, is a work of necessity within the statute on which the above complaint is founded. Flagg v. Millbury 4 Cush. 243; Com. v. Knox, 6 Mass. 76. It is morally fit and proper to shave one's self on the Lord's day, and the requirements of society seem to demand it as a matter of neatness and cleanliness. Whatever is fit and proper for a man to do for himself, he may properly have done for him by some one else. Some persons are not able to shave themselves, or cut their hair, owing to inexperience, want of practice, nervousness, and in some cases it is impossible for them to do it. In such cases those persons have a right to hire some one else to do it for them, and a barber who keeps open his shop on the Lord's day for that purpose performs a work of necessity or charity. The necessities of modern society seem to require the keeping open of barber-shops on the Lord's day, as they require the running of horse cars, the printing of papers, the keeping open of apothecary stores, the cooking of food, blacking boots, brushing clothes, bathing, etc. A shave on a Saturday or on a week-day is not, and does not answer the purpose of, a Sunday shave, and the necessity for a shave is greater on a Sunday than on a Saturday or week-day; so with hair cutting.

E.J. Sherman, Atty. Gen., for the Commonwealth.

Section 2 of chapter 98 of the Public Statutes is substantially section 1 of chapter 84 of the General Statutes. The complaint in the present case is brought on said section 2. It has been decided that this section provides for the punishment of two distinct offenses as violations of the Lord's day. These are: (1) Keeping open a shop, warehouse, or work-house; (2) doing any manner of labor, business, or work, except works of necessity or charity. These offenses are distinct. The keeping open of a shop on the Lord's day is an offense. By keeping open is meant open for ordinary traffic with the public, indiscriminately. The defendant was properly convicted of unlawfully keeping open shop. Com. v. Nagle, 117 Mass. 142; Com. v. Has, 122 Mass. 40; Com. v. Wright, 12 Allen, 187; Com. v. Lynch, 8 Gray, 384; Com. v. Crowther, 117 Mass. 116; Com. v. Hyneman, 101 Mass. 30; Com. v. Collins, 2 Cush. 556; Com. v. Harrison, 11 Gray, 308; Com. v. Joselyn, 97 Mass. 411; Com. v. Sampson, 97 Mass. 408; Crim. Law Mass. (Heard,) 748. As bearing upon the point of whether the question is one of law for the court, or one which should be decided by the jury, see Davis v. Somerville, 128 Mass. 598; Aldrich v. Blackstone, 128 Mass. 148; Perkins v. O'Mahoney, 131 Mass. 546; Hamilton v. Boston, 14 Allen, 476; Horne v. Meakin, 115 Mass. 329-331; Com. v. Anthes, 5 Gray, 188 et seq.

GARDNER J.

The laws of the Massachusetts colony prohibited both the transaction of any business and the indulgence in diversions on the Lord's day. See Revision Mass.Col.Laws 1672, p. 132. By the Province Laws of 1692-93, c. 22, the justices of the peace, constables, and tything men were to take effectual care, and endeavor to restrain all persons from "keeping open their shops, or following their secular vocations and recreations, in the evening preceding the Lord's day, or on any part of said day or evening." The act made no reference to works of necessity or charity as limiting the prohibition of the statute. In the Province Laws 1760-61, c. 20, the several acts then in force relating to the observance of the Lord's day were repealed, and more effectual provision was made for the due observance of the day: Section 2 enacted "that no person whatever shall keep open their shops, warehouses, or work-houses, nor shall, upon the land or water, do or exercise any labor, business, or work of their ordinary calling, nor any sport, game, play, or recreation, on the Lord's day, or any part thereof, (works of necessity and charity only excepted,) upon pain," etc. Section 9 of the same chapter provided "that no person shall keep open any shop, warehouse, or work-house, or have or sell any provisions in the streets or lanes of any town or district, or be present at any concert of music, dancing, or other public diversion, on the evening next preceding the Lord's day, on pain," etc. In this section there is no exception. The prohibition is made absolute as to keeping open shops, warehouses, and work-houses on Saturday evenings. It was not contended that the evening preceding the Lord's day was more sacred than the time called in some of these statutes the "Christian Sabbath." The preamble to section 9 recites the reason of its enactment as follows: "And whereas, many persons are of the opinion that the Sabbath, a time of religious rest, begins on Saturday evenings, therefore, to prevent all unnecessary disturbance of persons of such opinion, as well as to encourage in all others a due and seasonable preparation for the religious duties of the Lord's day," be it enacted, etc.

Looking at the two sections together, it would seem that the exception of works of necessity and charity did not refer to keeping shops open on the Lord's day, but that it was limited, in accordance with its own language, to work and labor. If the qualification in section 2 extended to keeping open shops on the Lord's day, we should expect to find the same qualifications in section 9, as to keeping open shops on Saturday evenings. Not finding it in section 9, the inference is strong that the phrase, "works of...