Ex parte Johnson

• Decision Date: 22 September 1943
• Docket Number: A-10423.
• Citation: 141 P.2d 599,77 Okla.Crim. 360
• Parties: Ex parte JOHNSON.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

141 P.2d 599

77 Okla.Crim. 360

Ex parte JOHNSON.

No. A-10423.

Court of Criminal Appeals of Oklahoma

September 22, 1943

Syllabus by the Court.

1. Under Constitution, city adopting home-rule charter is accorded full power of local self-government with power to enact, ordain, and enforce ordinances for purpose of protecting public peace, order, health, morals, and safety of inhabitants, notwithstanding that general statutes exist relating to same subject.

2. Such charter provisions do not supersede the general laws of the state of general concern, in which the state has a sovereign interest, but where the provisions of said charter do not conflict with, and are not repugnant to, the general laws of the state, the provisions of such charter will prevail.

3. Provisions of home-rule charter which conflict with general laws of state must give way and may not run counter to conflicting general laws of state although they may run current therewith.

4. The Legislature has power to set aside one day in seven as a day of rest for the purpose of protecting the public health, but it has no power to impose the observance of Sunday as a religious duty.

5. An ordinance of Oklahoma City prohibiting the carrying on of the business of barbering on Sunday, not being contrary to any general law of the state, held valid as being a proper exercise of the police power for the purpose of protecting the public health, peace, morals and safety of the inhabitants of the city.

6. Held, further, that said ordinance, being applicable to all barbers alike, is not invalid as class legislation because beauty parlors are not included.

7. Held, further, that said ordinance is not unconstitutional as taking property of petitioner without due process of law.

Original proceeding in habeas corpus by Art Johnson for release from a city jail, to which he was committed on conviction of violating a city ordinance by operating a barber shop on Sunday.

Petition denied.

Mathers & Mathers, of Oklahoma City, for petitioner.

A. L Jeffrey, Municipal Counselor, and Granville Scanland, Asst Municipal Counselor, both of Oklahoma City, for respondent.

JONES Presiding Judge.

The City of Oklahoma City is operating under a charter commission form of government. Under the general powers granted to it by its charter, it passed an ordinance pertaining to the barber business as follows: "8-27. Barber Shop. Closed on Sunday. It shall be unlawful and an offense for any person to keep open any shop or place of business in said city, for the purpose of carrying on the business of barbering, or to engage in such business, on the first day of the week commonly called Sunday."

On Sunday, May 30, 1943, the petitioner, Art Johnson, who operates a barber shop with a beauty parlor in the rear, was arrested while shaving a man in his shop. The beauty shop was in a separate room and the beauty operators did not work on Sunday. The facts disclose that petitioner did not observe any day of rest during the week but was attempting to perform barber work on all seven days with prices increased for Sunday work to seventy-five cents for a haircut and forty cents for a shave. Petitioner was charged and convicted in the municipal court of violating the above ordinance. He refused to pay the fine which was imposed and was committed to jail. This original proceeding in habeas corpus was instituted in this court asking that he be discharged and attacking the validity of said ordinance, contending as follows:

(1) That said ordinance is class legislation.

(2) That said ordinance is in conflict with and inconsistent with 21 O.S.1941 § 908.

(3) That said ordinance denies petitioner equal protection of the law and takes his property without due process of law and is therefore violative of the Constitution of the United States.

It is provided by statute in Oklahoma, as follows:

"The first day of the week being by very general consent set apart for rest and religious uses, the law forbids to be done on that day certain acts deemed useless and serious interruptions of the repose and religious liberty of the community. Any violation of this prohibition is Sabbath-breaking." 21 O.S.1941 § 907.

The following are the acts forbidden to be done on the first day of the week, the doing of any of which is Sabbath-breaking:

First. Servile labor, except works of necessity or charity.

Second. Trades, manufactures and mechanical employment.

Third. All shooting, horse racing or gaming.

Fourth. All manner of public selling, or offering or exposing for sale publicly, of any commodities, except that meats, bread, and fish may be sold at any time before nine o'clock in the morning, and except that food and drink may be sold to be eaten and drank upon the premises where sold, and drugs, medicines, milk, ice and surgical appliances and burial supplies may be sold at any time of the day." 21 O.S.1941 § 908.

In the cases of Ex parte Ferguson, 62 Okl.Cr. 145, 70 P.2d 1094, and Ex parte Hodges, 65 Okl.Cr. 69, 83 P.2d 201, this court held ordinances of the City of Ada and Shawnee were repugnant to the general statute.of our state, above quoted, for the reason that under the general statute meats, bread, and fish may be sold before nine o'clock on Sunday morning, and the municipal ordinances of the above cities prohibiting the selling of these commodities at any hour on Sunday, being contrary to the general statute, were invalid.

However, an examination of our general statute shows that there is no provision therein conferring the right to operate a barber shop or carry on the business of barbering on Sunday. The Legislature, having failed in the statutes hereinabove quoted, to specifically grant the right to barbers to engage in their business on Sunday, it was left open to cities, under their general powers of government, to pass ordinances prohibiting this work on Sunday so long as such ordinance applied equally to all within a class. Blackledge v. Jones, 170 Okl. 563, 41 P.2d 649; Ex parte Johnson, 20 Okl.Cr. 66, 201 P. 533.

The Oklahoma Legislature in 1937 enacted the "Barbers Unfair Trade Practices Law" (59 O.S.1941 §§ 91-105). The constitutionality of this statute has been upheld by this court. Ex parte Herrin, 67 Okl.Cr. 104, 93 P.2d 21, and by the Supreme Court of the state in Herrin v. Arnold, 183 Okl. 392, 82 P.2d 977, 119 A.L.R. 1471.

In sustaining the validity of this statute, this court held that the public health, safety and welfare was affected by the barbering business and therefore subject to regulation under the police power of the state.

In 20 A.L.R. 1114 it is stated: "Special laws prohibiting barbering on Sunday have been sustained by the courts in a majority of the cases." Following this quotation are a large number of citations of cases from various states which have sustained ordinances or general statutes prohibiting barbering on Sunday.

The minority view is also set forth in this annotation, but the cases therein cited do not rule the particular ordinance involved in each of them unconstitutional because the legislature or municipality was without constitutional authority to designate the Sabbath as a day of rest, but rather these statutes were held invalid because of the...