State v. Somberg

Decision Date01 July 1925
Docket Number24543
Citation204 N.W. 788,113 Neb. 761
PartiesSTATE OF NEBRASKA, APPELLEE, v. BEN SOMBERG, APPELLANT
CourtNebraska Supreme Court

APPEAL from the district court for Douglas county: L. B. DAY, JUDGE. Affirmed.

AFFIRMED.

Edward R. Burke and Monsky, Katleman & Grodinsky, for appellant.

Abel V Shotwell, Dana B. Van Dusen and A. F. Brungardt, contra.

Heard before MORRISSEY, C. J., GOOD and THOMPSON, JJ., REDICK and SHEPHERD, District Judges.

OPINION

SHEPHERD, District Judge.

The defendant was convicted and sentenced upon a complaint charging him with unlawfully opening his store in Omaha on Saturday and Sunday and selling and offering for sale groceries, meats and the articles ordinarily sold in grocery stores and meat markets, in violation of the Sunday closing ordinance of that city. He brings the case to this court, alleging in seven specific assignments what may be summarized as follows: The court erred in finding the defendant guilty of violation of ordinance No. 9805 of the city of Omaha; the court erred in not holding said ordinance unconstitutional and void; the court erred in excluding the evidence offered that fruit stands and cigar and tobacco stores are open seven days a week in Omaha, although they sell articles handled by practically all grocery stores.

The evidence was enough to sustain the court in finding that the defendant was opening his store, offering for sale, and selling on both Saturday and Sunday; also that he had there for sale and was offering for sale, not only meats, but articles which are ordinarily sold in grocery stores.

His two main contentions are that the ordinance is dependent upon section 9795, Comp. St. 1922, and that because it does not contain the exceptions of said statute it is absolutely void; and that by express terms and necessary operation it unlawfully delegates legislative power.

If it were true that said section 9795 confers the only authority that the city had to pass the ordinance in question, the argument of the defendant would be most persuasive. The pertinent part of the section referred to is as follows:

"If any person of the age of fourteen years or upward shall be found on the first day of the week, commonly called Sunday, at common labor (work of necessity and charity only excepted), he or she shall be fined in a sum not exceeding five dollars nor less than one dollar: Provided, * * * nothing herein contained in relation to common labor on said day of the week, commonly called Sunday, shall be construed to extend to those who conscientiously do observe the seventh day of the week as the Sabbath."

The pertinent part of the ordinance in question is under title, "An ordinance providing for the closing of all stores selling groceries and all meat markets on the first day of the week, commonly called Sunday, and providing a penalty for the violation of any of the provisions hereof," and reads in these words:

"It shall be unlawful for any person or persons within the corporate limits of the city of Omaha, on the first day of the week, commonly called Sunday, to open to the public, or to sell, or offer to sell, give away, or dispose of in any way, from any store or building where groceries are sold, any groceries or articles ordinarily sold from a grocery store, or to open any meat market, sell, offer to sell, or give away from such meat market, any meats or other products ordinarily sold or handled in meat markets, and all such stores and meat markets shall be closed on said day: Provided, however, that nothing herein contained shall extend to those who conscientiously observe the seventh day of the week as the Sabbath, and in pursuance of such observation shall close and keep closed their store or meat market on the seventh day of the week, commonly known as Saturday."

The ordinance does not contain the exception of the statute, "work of necessity and charity only excepted." The statute came from Ohio, where it received judicial construction prior to the time that it was adopted in Nebraska; that construction being that an omission of the exception vitiates the ordinance because otherwise such ordinance would make the citizens guilty of a crime or misdemeanor not contemplated by statute, merely because he had labored, without regard to whether what he had done was a work of charity or necessity. In other words, the ordinance without the exception makes a crime out of whole cloth, and without warrant or authority of law. City of Canton v. Nist, 9 Ohio St. 439, in which the court declared a similar ordinance void, is perhaps the leading case upon the point.

True, if by adjudicated cases in Nebraska a construction, prior to that of Ohio, has been adopted in this state, we would not be bound by the doctrine of the Nist case. But we are not aware of any such decisions dealing with this particular statute. It has long been held in this state, where the legislature adopts the statute of another state which has theretofore been construed by courts of that state, it adopts the settled construction along with the statute. Forrester & Co. v. Kearney Nat. Bank, 49 Neb. 655, 68 N.W. 1059; Coffield v. State, 44 Neb. 417, 62 N.W. 875.

Defendant takes the ground that his store-keeping, his opening and offering or his selling and disposing is common labor. W...

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