State v. Murray

• Decision Date: 15 December 1919
• Docket Number: 20556
• Citation: 175 N.W. 666,104 Neb. 51
• Parties: STATE OF NEBRASKA v. EDWARD K. MURRAY
• Court: Nebraska Supreme Court

175 N.W. 666

104 Neb. 51

STATE OF NEBRASKA v. EDWARD K. MURRAY

No. 20556

Supreme Court of Nebraska

December 15, 1919

ERROR to the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.

AFFIRMED.

Brown Baxter & Van Dusen, for plaintiff in error.

Willis E. Reed, Attorney General, Orville L. Jones, Mason Wheeler and George A. Magney, contra.

DEAN J. ROSE, J., dissents.

OPINION

DEAN, J.

Edward K. Murray was convicted and fined $ 10 and costs in police court under a complaint charging that, in Douglas county, he, "being a barber, working as such in the barber shop of the Hotel Fontenelle, did then and there on Sunday, July 29, 1917, barber one John Doe, * * * the said John Doe, real name unknown, being at the time of said barbering a guest at the Hotel Fontenelle."

On appeal a jury was waived, and the case being tried to the court on a stipulation of facts, the judgment was affirmed by the district court. Defendant prosecutes error.

The stipulation follows: "(1) The defendant, Edward K. Murray, is a barber by profession, and as such was on Sunday, the 29th day of July, 1917, in the employ of the Interstate Hotel Company, then operating the Hotel Fontenelle in the city of Omaha, Douglas county, Nebraska; that the said defendant on said day and time and place, and in the barber shop owned and operated by said hotel company in said hotel company's building, did barber one Harry C. Lefler under direction of said hotel company.

"(2) That said Lefler at said time was a guest of said Hotel Fontenelle, having arrived late the night before from some distant point in another state; that when said Lefler, guest of said hotel, came into the barber shop and demanded services, he was in necessary need of barbering in order to be comfortable and healthy and in order to make himself presentable in appearance and acceptable to the other guests of the hotel in the dining room and lobby thereof; that said Hotel Fontenelle has a capacity to entertain more than 300 guests at a time, and on or about the date mentioned above there were several hundred other guests in said hotel; that in the city of Omaha and in the state of Nebraska, there are a great many other hotels of large capacity maintained and operated on the same high plane as the Hotel Fontenelle and which are patronized by the traveling public especially in large numbers, who likewise maintain and operate in connection with said hotel business barber shops for the accommodation, comfort and health of their patrons; that the traveling public stopping at said hotel expect and demand on Sunday, as well as week days, tonsorial attention and service as well as bed and board accommodations; that a very large per cent. of said patrons are commercial travelers and solicitors, who, during the week, have pursued their business in other parts of the state, and who are in the habit of coming to Omaha to spend Sunday at the Omaha hotels, and who usually arrive on the late Saturday night or early Sunday morning train, and whose health as well as comfort requires tonsorial care and attention; that a very large per cent. of said patrons are without proper equipment for shaving themselves, and of course are physically unable to cut their own hair or treat themselves with either electric or other massage."

Defendant argues that the barber act, namely, chapter 234, Laws 1917, is not applicable to the facts; that it is "class and special legislation," that "it discriminates against barbers and in favor of other common laborers by imposing on barbers a severer penalty than that imposed by the general Sunday act on other common laborers, and is therefore unconstitutional." The "general Sunday act" referred to imposes a fine "not exceeding $ 5 nor less than $ 1" for working on Sunday "at common labor, work of necessity or charity only excepted." Rev. St. 1913, sec. 8802.

Section 1 of the act in question, so far as applicable, provides "It shall be unlawful for any person," his agents or servants, "to conduct, carry on or to perform any of the services of a barber on the first day of the week, commonly called Sunday, provided that the services of a barber shall be defined as common labor and shall not be construed as being a work of necessity or charity, provided that where such services...