McClelland v. City of Denver

36 Colo. 486 | Colo. | 1906

Chief Justice Gabbert

delivered the opinion of the court:

Plaintiff in error wap convicted of violating an ordinance of the city of Denver, which prohibits all persons from keeping barber shops open on Snnday. He attacks the validity of this ordinance upon the constitutional grounds that it is obnoxious to the inhibition against special laws, that it deprives him of fundamental rights without due process of law, d denies to him the equal protection of the law. fThe experience of centuries has demonstrated the necessity of periodical cessation from secular labor. This rule of conduct with respect to secular pursuits is recognized by the entire civilized world as essential to the physical and moral welfare of society. Sunday ordinances are, therefore, generally sustained as constitutional upon the theory that for the purpose of promoting the general welfare of the inhabitants of a city it is necessary that their usual and lordinary avocations, except those of necessity or \ charity, should be suspended upon the Sabbath day, and that for this reason such ordinances are within the domain of the police power of the municipality ^enacting them. — Denver v. Bach, 26 Colo. 530; 27 Am. & Eng. Enc. Law (2d ed.) 390; Cooley’s Const. Lira., *p. 588. This is settled by a practically unbroken line of decisions. jThe only question upon which there may be said to be a conflict of authority in so far as constitutional questions are involved with respect to the ordinance in question, is the one relating to the inhibition against class legislation. — 27 Am. & Eng. Enc. Law (2d'"ed.) 391. This arises, not from a difference of opinion as to the law, but from a difference of views in construing the result of municipal legislation of the nature of the ordinance in question, when tested by the constitutional provisions invoked. This particular question, however, is not involved in this case. It has been the policy of this commonwealth since 1868 to inhibit all labor on Sunday, works of charity and necessity excepted. — § 1370, 1 Mills ’ Ann. Stats. As supplementing this, the general assembly, in 1893, made it a misdemeanor for any person to carry on the business of barbering on Sunday in any city of the first or second class. — Laws 1893, p. 125. Keeping open places of business, on Sunday, works of necessity and charity excepted, is a public and serious interference with the observance of the day. ■''Buell conduct is offensive to the. moral sense of the community. <[t disturbs the peace and good order of ’ society, and invites others to violate the law; on the subject. The stability of government, as well as the welfare and interest of society, render it necessary that the day of rest should be uniform, and that its observance should be compulsory, not by way of enforcing the conscience of. those upon whom the law operates, but by way of protection to those who desire, or are entitled to, the day, and who* unless protected by a law requiring usual secular pursuits to be suspended at regularly recurring’ intervals, would be deprived of the full benefits which the law contemplates shall result from the observance of Sunday as a day of rest.

The ordinance in question tends to afford the inhabitants of the city of Denver this protection, and is in entire harmony with the statutes of the state above referred to. The business of carrying on a barber shop is in every respect lawful and respectable; it is in no sense objectionable from any point of view, but these are not the tests to- be applied to the ordinance in question. The business is purely secular, and not a work of necessity or charity. It is distinct and the ordinance is general in its application to barbers, and does not attempt to classify them, but applies alike to all persons following- that particular occupation. By violating its provisions, plaintiff in error has violated the law of the state. The fact, therefore, that it embraces only barbers, and in the judgment of some does not go far enough, and should include all other avocations, or be general, is no reason why it should not he upheld to the extent it does go, when, though limited in its application, it affects alike all-persons following the particular avocation inhibited on Sunday. Such an ordinance is not unreasonable. In such circumstances, persons following the particular pursuit thereby inhibited will not be heard to say that constitutional rights have been invaded by a police regulation of the city in harmony with the general law and policy of the state which is violated by violating an ordinance relating to the same subject. — McPherson v. Village of Chebanse, 114 Ill. 46. In other words, the ordinance is not unreasonable as applied to barbers because it affects them all alike1, and a person following that occupation will not be permitted to attack it upon the ground that it is class legislation when, by violating its provisions, he violates the laws of the state.

It is contended by counsel for plaintiff in error that Denver v. Bach, supra, is decisive of this case. That case differs from.the one at bar in this: That the ordinance there considered was held invalid because it imposed upon dealers in clothing a restriction not imposed on dealers in other merchandise. In other words, it recognized that there were different classes of merchants engag’ed in practically the same business, and prohibiting one class and not another was obnoxious to the constitutional provisions against class legislation. The ordinance here considered-affects all barbers alike.

Again, the particular question upon which the decision in the case at bar is placed was not considered in that case.

In re Morgan, 26 Colo. 415, is also relied upon by counsel for plaintiff in error, but that is manifestly not an authority applicable to the case.at bar. The law there considered and declared invalid was so adjudged because it infringed tbe right of employer and employee to make contracts relating to purely private business, and unjustly and arbitrarily singled out a class of persons and imposed upon them restrictions which did not concert} the public, from which others similarly situated were exempt.

The cases relied upon from the court of appeals of our own state are clearly not in point.

Finally, it is urged on behalf of plaintiff in error that the ordinance is invalid because it covers a period from twelve o’clock Saturday night until five o ’clock Monday morning following. If the municipal authorities have no power to inhibit the keeping open of a barber shop from twelve o’clock Sunday night to five o’clock the morning following, the ordinance is not for that reason invalid. Eliminating that part of the ordinance which it is contended is illegal, enough remains which is in no manner dependent upon the alleged illegal portion to effectuate the purpose of the municipality in passing the ordinance, namely: To require barber shops to be closed for the period of twenty-four hours, beginning at twelve o’clock each Saturday night.

In the opinion of the writer tbe judgment of the county court should, therefore, be affirmed.

The writer is authorized to state that Mr. Justice Campbell concurs in this conclusion; that Justices Gunter, Goddard, Maxwell and Bailey also concur in the affirmance of the judgment, but are of the opinion that § 1370,1 Mills’ Ann. Stats., and the laws of 1893, supra, are not involved, and therefore express no opinion as to the construction of such laws; but in their judgment the ordinance is not subject to the objection of class legislation, basing their conclusion on this proposition on Robertson v. People, 20 Colo. 279, and the following authorities: State v. Bergfeldt, 83 Pac. 179; State v. Sopher, 25 Utah 318, 60 L. R. A. 471; People v. Bellet, 99 Mich. 151, 22 L. R. A. 696, 57 N. W. 1094; Liberman v. State, 26 Neb. 464, 42 N. W. 419; State v. Petit, 177 U. S. 164; Barbier v. Connolly, 113 U. S. 27.

Tbe judgment of tbe county court is affirmed.

Decision en banc.

Affirmed.