Lane v. State

• Citation: 150 S.W. 637
• Parties: LANE v. STATE.
• Decision Date: 23 October 1912
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

150 S.W. 637

LANE v. STATE.

Court of Criminal Appeals of Texas.

October 23, 1912.

Appeal from Wichita County Court; C. B. Felder, Judge.

E. A. Lane was convicted of violating the Sunday law, and he appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of violating the Sunday law; his punishment being assessed at a fine of $10.

The information and complaint contain quite a number of counts, presenting the case in the allegations in every conceivable form. The facts show there was a contract for the erection of a certain building. Among other stipulations in that contract is this: "It is further agreed that, should the contractors fail to finish and complete the work embodied in their contract by the time agreed upon, they shall pay to or allow the owners by way of liquidated damages the sum of $50 per day for each and every day the said work shall remain uncompleted. It is further agreed that, should the contractors complete the work embodied in their contract before the time agreed upon, the owners shall pay to the contractors as a premium the sum of $50 per day for each and every day the said works are completed prior to the time agreed upon. In either event, the penalty or premium shall be computed after all credits of time lost are allowed as provided for in article 7." Article 7 provides that, "should the contractor be obstructed or delayed in the construction or completion of the work by the act, neglect, or delay of the owner or the architects, or by any other contractor employed by the owners upon the work, or by any damage which may be done by fire, lightning, earthquake, or cyclone, or by an abandonment of the work by the employés through no fault of the contractor, then the time herein fixed for the completion of the work shall be extended," etc. This contract was dated April 25, 1910. The building was to be completed on January 1, 1911.

The evidence shows beyond any question, and is not a disputed fact, that the party had not been able to complete the building by the 1st of January, 1911, according to the contract, and that the work was not completed at the time appellant was charged with working on the building, which was January 1, 1911, it being Sunday. On that day appellant was working on the building under order of his superior to complete the contract, at the time he was arrested for working on said Sunday. At the time of the trial, which was in the latter part of January, 1911, the work on the building was still incomplete, and the parties were still at work trying to finish it. It is further part of the evidence that, through the supervisor of the building, appellant was called to work by the party in charge of the building, and that was the occasion of his working on this Sunday, and that they were losing $50 a day for every day they failed to complete the building, and that the owners were pushing it to get the building completed as they were losing $100 a day rent in addition to the $50 loss by the other parties. The contract was between the Texas Building Company on one hand and Kemp & Kell on the other. Mr. Tidwell, the above-mentioned assistant supervisor, testified as a state witness, and stated, among other things, that appellant was working as carpenter, doing various jobs about the building, and they were trying to rush the building in every way possible, and that it was absolutely necessary that the Western Union Company should move in. He further stated: "If it had not been for the fact that my company, the Texas Building Company, was losing $50 a day, that the conditions were extraordinary, I would not have put the defendant, E. A. Lane, at work on that day, and the defendant, E. A. Lane, would not have been at work on that day. It is a fact that, in order to close this contract and comply with the terms of the contract, we had been working the men at nights on this job." He further states: "We worked the men at night all along during the construction of the job. I said that all along, while the job was in course of construction, that we worked the men at night—not every night, but off and on. I did not work the men the next Sunday after this occurrence. We had not finished the building next Sunday." It is further shown the reason they were not at work the next Sunday was because the men had all been arrested for working on this particular Sunday, and were prosecuted; this conviction arising under one of the prosecutions. He also states this was not the first Sunday that work had been done on the building, but he could not say how many other Sundays they had worked, without looking the matter up, but several Sundays; that they worked a night shift during the month of September, off and on, and had worked overnights ever since, and worked at nights all during the month of October, and through the month of November, and also worked at nights during the month of December. The deputy sheriff testified that he saw the parties working, and arrested them on the evening of this particular Sunday, when and where he saw them working.

It is not thought necessary to go into a detail of all this testimony. It is clear that the parties regarded it as a work of necessity, under the facts stated—that is, that they were losing $50 a day, and $100 rent; and it is also a fact uncontradicted that the parties who had rented the building were put to a great inconvenience, and were pushing the builders in order to get in and occupy the house. It seems to have been a large building, and was to be occupied by banking concerns, and telegraph and other concerns of that character. Appellant's contention, under this state of facts, was that this was a work of necessity, which exempts him from prosecution under the statute. The statute provides that any person who shall hereafter labor or compel or force or oblige his employé, workmen, or apprentice to labor on Sunday, etc., shall be fined not less than $10 nor more than $50.

This statute by the succeeding article exempts from punishment those who do work of "necessity or charity." There are quite a number of other exemptions mentioned, which are made statutory necessities. The Legislature did not see proper to define what is meant by the term "necessity" or "charity"; that is, that body did not define the word "necessity." It mentions quite a number of things which are regarded as necessities, but did not give a definition of the general term itself. What is "necessity" under the Sunday law has been the subject of many decisions, and they are not altogether harmonious. It has been said that the word "necessity" means (1) irresistible force; (2) inevitable consequence. It has been further held that these are not the true meanings, when used in a law touching the voluntary conduct of men. In that sense it means being necessary; something that is necessary. In Carver v. State, 69 Ind. 61, 64 (35 Am. Rep. 205), it was said, in giving a definition of "necessity," that it means: "The necessities of our nature; the necessaries of life. Habit and desire create necessities; but nature requires only necessaries. Sometimes the word `necessity' means no more than `occasion,' or that which gives rise to something else. Worcester. We are not to seek the physical, metaphysical, philosophical, scientific, moral, or theological meaning of the word `necessity,' but its legal meaning, as applicable to the rights, duties, and conduct of men. Sailing ships, running steamboats and railroad trains, carrying the mails, operating telegraph lines, keeping up waterworks and gasworks, carrying on distilleries, breweries, and running flouring mills, are not prohibited on Sunday, we believe, anywhere in the civilized world, and seldom regulated any differently on Sunday than on a week day; and large manufactories, blast furnaces, salt works, oil wells, and other pursuits wherein heavy machinery is used, and where a stoppage is attended with loss or inconvenience, are seldom interfered with in their operations on Sunday by legal restriction."

In Words and Phrases, vol. 5, p. 4729, we find this: "The term `necessity,' as employed in the Sunday statutes, is generally given a liberal rather than a literal interpretation by the courts. It is not an absolute, unavoidable, physical necessity that is meant, but rather...