Stratman v. Commonwealth

• Decision Date: 08 March 1910
• Citation: 125 S.W. 1094,137 Ky. 500
• Parties: STRATMAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

125 S.W. 1094

137 Ky. 500

STRATMAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 8, 1910

Appeal from Circuit Court, Jefferson County; Common Pleas Branch Second Division.

"To be officially reported."

Penal action by the Commonwealth against John Stratman. From a judgment for plaintiff, defendant appeals. Reversed.

Kohn Baird, Sloss & Kohn, Edwards, Ogden & Peak, Herman Morris Jas. G. Denney, and Geo. C. Webb, for appellant.

James Breathitt, Atty. Gen., Jos. M. Huffaker, O'Neal &amp O'Neal, C. H. Morris, Tom B. McGregor, and Pryor, Sapinsky & Castleman, for the Commonwealth.

LASSING J.

This appeal involves the constitutionality of section 1322 of the Kentucky Statutes (Russell's St. § 3665) in which it is made unlawful to open a barber shop on Sunday and engage in the business of barbering. A penalty different from that fixed by section 1321, which is the general Sunday law, is provided. Appellant was proceeded against by penal action for the recovery of fines aggregating $55 for violating this section of the statutes on 11 different counts. He filed a general demurrer to the petition, which was overruled. He thereupon declined to plead further, and judgment was rendered against him.

The act in question was passed March 27, 1893, and is as follows: "That any person who engages in the business of barbering on Sunday shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than five dollars, and upon a second conviction for a like offense, shall be fined not less than ten dollars, and not more than twenty-five dollars, or imprisoned in the county jail for a period of not less than five days nor more than ten days, or be both fined and imprisoned, at the discretion of the court." Laws 1891-93, c. 170.

Two grounds are relied upon for reversal: First, that the act is unconstitutional, because it violates subsection 29 of section 59 of the Constitution, which provides, "In all other cases where the general law can be made applicable no special law shall be enacted;" and, second, that it is violative of subsection 4 of section 59, which prohibits the General Assembly from passing any local or special acts concerning various subjects, among which there are enumerated in subsection 4 the following: "Punishment for Crimes--Remission of Fines. To regulate the punishment of crimes or misdemeanors or to remit fines, penalties or forfeitures." Section 1321 of the Kentucky Statutes, which makes it unlawful for one to pursue his usual vocation on Sunday, and provides a penalty for so doing, is as follows: "No work or business shall be done on the Sabbath day, except the ordinary household offices, or other work of necessity or charity, or work required in the maintenance or operation of a ferry, skiff or steamboat, or steam or street railroads. If any person on the Sabbath day shall be found at his own, or at any other trade or calling, or shall employ his apprentices, or other person, in labor or other business, whether the same be for profit or amusement, unless such as is permitted above, he shall be fined not less than two nor more than fifty dollars for each offense. Every person or apprentice so employed shall be deemed a separate offense. Persons who are members of a religious society, who observe as a Sabbath any other day in the week than Sunday, shall not be liable to the penalty prescribed in this section, if they observe as a Sabbath one day in each seven, as herein provided."

It is most earnestly urged that, inasmuch as by this general law all persons are prohibited from doing any work or business on the Christian Sabbath, with certain exceptions, it applies with as much force to barbers as to those engaged in any other vocation, calling, or trade, and that therefore, as this general law covers the subject and provides a penalty for its violation, the enactment of section 1322 is violative, first of subsection 29, above referred to, and also of subsection 4, in that it provides a penalty or punishment for barbers who violate the Christian Sabbath different from that which is provided by law for the punishment of others who violate the Sabbath. It is not contended that the Legislature is without authority to visit upon a certain class or character of violations of the Sabbath a higher or greater penalty than that visited upon other violations; but the ground upon which such higher or more excessive punishment is justified is that the acts punished are especially hurtful, obnoxious, or injurious to society, and that, as the business of barbering could not be so considered, the Legislature was without authority to single it out and provide for it a penalty different from that which might be imposed upon the baker, or the merchant, or the bootblack, or the grocer, who should be found guilty of following his usual vocation on the Sabbath.

In the case of Commonwealth v. Porter, 113 Ky. 581, 68 S.W. 622, 24 Ky. Law Rep. 366, in construing subsection 4 of section 59, this court said: "In the more recent case of Richardson v. Boske, 111 Ky. 893, 64 S.W. 919, 23 Ky. Law Rep. 1209, it was decided that numerous special laws relating to the fiscal affairs of Kenton and Campbell counties were repealed by the adoption of the general law with reference thereto. When the case of Commonwealth v. Cain, 77 Ky. 525, was decided, the Constitution did not prohibit special legislation, like that embodied in the charter of the gas company and the Warren Deposit Bank, and, as a result, innumerable special laws were enacted, prescribing different penalties for the same offense when committed in different counties of the state. And the constitutional convention intended by the enactment of section 59 and the schedule of the Constitution to prohibit this character of legislation, and that they should be superseded by the adoption of general laws uniform in punishment and application throughout the commonwealth. As was well said in McTigue v. Commonwealth 35 S.W. 121, 17 Ky. Law Rep. 1418: 'Within the spirit of the Constitution, if not within its very letter, the law must inflict like penalties for the offenses. *** We may well denounce as a delusion the crowning boast of the Constitution that systematic uniformity in the administration of the law had been provided for with proximate perfection, if this monument of local inconsistencies shall continue to mar the symmetry of our statutes. *** Even without legislation, all laws not consistent with its spirit, which are not in terms repealed or made consistent in the meantime, stand repealed at the expiration of six years after the adoption of the Constitution."'

There is nothing in the business of barbering that is dangerous hurtful, or injurious to society, and the reason for singling out this business and putting it in a class by itself, and visiting upon those who make their living by following it a more severe punishment than is imposed upon others who violate the Christian Sabbath by following their usual vocations, is wanting. In fact, instead of being hurtful to society, there is no trade, perhaps, that lends so much to the comfort, convenience, cleanliness, and good looks of the male portion of our citizenship. By many the barber is not looked upon as a luxury, but as a necessity, and there is much to be said in favor of the position of those who hold that it is as necessary that the barber shop should remain open a reasonable time on Sunday, for the accommodation of those absolutely in need of the barber's services, as it is that the livery stable, the drug store, the news stand, or the restaurant should be kept open for the accommodation and convenience of the public. While we do not subscribe to the idea that the work of barbering on Sunday may be classed as a necessity, still we are of...