438

Krigbaum v. Southard et al.

terest at the time of his death." See, also, 2 Redf. on Wills, 475; 106 Pa. St., 268; 2 Eq. Cas., 456; 1 Reporter, 69.

In Kent v. Dunham, 105 Mass., 586, (where the legacy was general and drew interest after a year from the death of the testator,) these significant holdings were made.

1. The time from which interest is to be allowed on a legacy is not postponed by a testamentary provision that the legacy shall be paid "next after my lawful debts," nor by a provision that it shall be paid "as soon as the same can be conveniently done from sales and collections of my property without sacrifice."

2. Evidence offered to excuse the executors in not paying at an earlier date was properly rejected as immaterial.

3. Demand of payment is not requisite to entitle the legatee to interest.

The foregoing authorities show, I think, that a bequest in trust, to pay the income to a legatee for life, with principal over at his death, forms an exception to the general rule as to interest on legacies, and entitles the legatee for life to interest from the testator's death. Bartlett v. Slater, (Conn.), 21 Rep., 647.

The ratio of the cases seems to be, that such bequest is for the benefit of the legatee, and, in the absence of contrary provision, for his immediate benefit; that the testator is presumed to have had in mind the benefit of the legatee, rather than the benefit of the estate; and that interest follows as an accretion to the principal legacy, and is not imposed upon the estate for the neglect of the executor. A legacy carries interest, therefore, although payment be, from the condition of the estate, impracticable, and although the assets have been unproductive. 2 Williams on Ex., 1533.

This case does not fall entirely within the operation of the foregoing rule. The bequest is in fulfillment of an antenuptial contract, and both the contract and the bequest by their terms contemplate the lapse of "a reasonable time," in order to raise, out of the estate, this interest-bearing fund. This does not mean, however, such time as may, to a particular executor, seem reasonable, or such as may, in fact, be necessary. The bequest being to cut off dower, and being intended for the benefit of the legatee, must not be imperilled and impoverished by such uncertainty and indefiniteness.

These considerations entitle the plaintiff to interest, but forbid its allowance from the death of the testator. The only other rule to be drawn from analogy is, to defer interest for one year; and this rule will be applied in this case. Inasmuch as the right of plaintiff, arising from the facts stated in the petition is neither barred nor modified by the statements of the answer, the demurrer thereto, is sustained.

H. H. Greer, for plaintiff.

F. H. Southard, for defendant.

1. The keeping open by a barber of his shop on Sunday, and doing the common labor of a barber therein, cannot be said, as a matter of law, to be a work of necessity, or within the purview of the Ohio Statutes.

2. Whether shaving or hair cutting on Sunday by a barber is a work of necessity or charity, within the meaning of our act prohibiting common labor on that day, depends largely upon the circumstances and facts in any given case.

HAMILTON, J.

This case comes here on petition in error from the police court of this city. The petition is filed in behalf of state, with the view of obtaining the opinion of this court upon the correctness of the holdings of the police court upon the legal questions determined by it adversely to the state and which resulted in the discharge of the defendant.

The information in substance charges "that Charles Schuler being a person over the age of fourteen years, to-wit: thirty years of age, of said city of Cleveland, on the twenty-ninth day of December, 1889, at said city and county, was unlawfully found at the Weddell House Barber Shop, at common labor, to-wit: in shaving and cutting hair of one Harry Wilson, for hire, said common labor not being a work of necessity or charity, and the said twenty-ninth day of December, 1889, being the first day of the week, commonly called Sunday, and the said Charles Schuler not being a person who conscientiously observes the seventh day of the week as the Sabbath."

A general demurrer was filed to this information and overruled, and upon hearing to the court the evidence was in substance (as disclosed in the bill of exceptions): That the defendant had long since reached the age of majority-that on Sunday, December 29, 1889, the defendant, who was one of the barbers connected with and employed in the Weddell House Barber Shop, was engaged in his employment as such, the shop being open to the general public for business, as usual, and on that occasion did cut the hair of one H. Wilson, at his request, for and at the price of 25 cents.

Wilson also testified "that the character of his business, that of keeping a cigar stand, was such that it was necessary he should have his hair frequently cut, and that to allow his hair to assume or acquire an unkept appearance would be prejudicial to his business, that it is further necessary that his hair should be cut every two weeks, and that it had been his practice for some time past to have his hair cutting done on Sunday; that his hair had been cut two weeks previous to that day; that on the day previous, Saturday, he had spoken to Schuler, anticipating that possibly there might be some trouble in having his hair cut on the Sunday following, on account of the Sunday closing ordinance, asking him (Schuler) if it would be possible for him to have his hair cut on that day, and was advised that it would be; that he was at the time in good health, and there was no necessity that he should have his hair cut on that day, except for the reason given, viz.: that it would be prejudicial to his business to present an untidy appearance.'

Defendant testified that "it was necessary for him to work on Sunday, because his earnings were necessary for the support of his family;

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that he received $14 per week, and that he had one-half day off during the week."

On this state of facts the police court held that the work done on that Sunday by defendant was, notwithstanding it was "common labor" in the meaning of the statute, a work of necessity, and hence did not fall within the inhibitions of the law, and "that the keeping open of barber shops and shaving and cutting hair therein on Sunday did not all within the penalties of this statute," because of the necessity that such work be done on that day to keep mankind clean and in a decent presentable condition. It is not claimed that the necessity is absolute, for the work might be wholly omitted, or performed on some other day of the week. But so might the work of the ferryman, the landing of passengers by waterman, the travelling of emigrants, be suspended on the Sabbath, yet the statute permits all these to be done on that day. The argument is that although the statute prohibits all "common labor" on Sunday, (works of necessity or charity excepted) and by a proviso therein declares that it shall not be construed to prevent the doing of certain things on that day, and among them does not enumerate the work of the barber, yet the fact that the act does not expressly exempt the work of the barber from its operation ought not to be construed as intending to prohibit it because it fails to exempt it, for the reason that many other things which are not by name exempted in the act are nevertheless "common labor" and are conceded by every one to be necessary and not inhibited, such as cooking meals, etc., on Sunday.

The state, on the other hand, by its representative, insists that the work of the barber on Sunday is no more a necessity than that of the merchant or tailor, and that the construction of the statute by the police court in this case is unsound and unwarranted. I think it will hardly be seriously contended that there was any imminent or overwhelming necessity for a man who had his hair cut two weeks before to have it cut again on a Sunday rather than on Saturday before or the Monday following, or any other day of the week, there appearing nothing to prevent it being done on any other day as well as on Sunday; and no cause for doing it on Sunday is assigned except the rather esthetic reason that his hair should be cut at the precise interval of every fourteen days, in order that his personal appearance should not interfere with the successful prosecution of his business, to-wit, the sale of cigars.

Neither can the statement of defendant, that it was necessary for him to work at barbering on Sunday to support his family, make a case of necessity that the law can recognize. 1st. It is difficult to see how such necessity under the proof can in fact be said to exist; but if it did, it is manifest that it would be equally necessary for him to work, whatever nature of his employment, whether merchandizing, tailoring or riveting steam boilers, providing the wages were no greater in the one case than the other. But this ground of necessity, viz., to support him'self and family, is not seriously claimed, and forms no basis of the decision in the police court.

The question is therefore narrowed to the single proposition, whether the work of the barber on Sunday is a necessity to the public generally, without reference to the question of exceptional cases of necessity to the individual in any given case. What then is a work of necessity in the purview of our statute?

Our statute reads as follows: Section 7033. "Whoever being over fourteen years of age, engaged in common labor on Sunday (works of

necessity and charity excepted), shall, on complaint made within ten days thereafter, be fined not more than five dollars, this section does not extend to those who conscientiously observe the seventh day of the week as the Sabbath, nor shall it be construed so as to prevent families emigrating, from travelling, waterman from landing their passengers, superintendents or keepers of toll bridges or toll gates, from attending the same, or ferry men from conveying travellers over waters."

This act was passed in 1831 in obedience to what was conceived to be an enlightened public policy, to-wit: that man and the brute creation, employed in laboring for him, should, as far as practicable, enjoy one day of rest out of seven.

I propose to briefly review the decisions of our Supreme Court upon the proper construction of this statute.

In Swisher's Lessees v. Williams' Heirs, Wright's Report, 754, two of the supreme judges on the circuit, the question being as to the validity of a deed exccuted on Sunday, held: "The objection that the deed was executed on Sunday will not avail you. Both parties partook equally of the sin of violating the Sabbath, and the law does not require of us to enable either party to add to the sin by breaking the faith pledged on that day and commit a fraud, out of assumed regard for the Sabbath day."

This case seems clearly to recognize that the execution of the deed on Sunday was a violation of the statute, but holds that the defendant, being in "pari delicto" was estopped from setting that up as a defense.

In the 15th Ohio, page 225, the Supreme Court held that "the prohibition of 'common labor' on the Sabbath in our statute embraces the business of trading, bartering, selling or buying any goods, wares or merchandise," the case being City of Cincinnati v. Jacob Rice, and was for selling goods on Sunday in violation of an ordinance of the city.

In Sellers v. Dugan, 18 Ohio, page 489, our Supreme Court, in construing the Sunday law prohibiting "common labor," held: "A sale on Sunday of four hundred bushels of corn is void, and no action for damages can be sustained for the breach of such contract." This holding was by a divided court.

In Bloom v. Richards, 2 Ohio State, page 387, the action was to compel the specific performance of a contract made on Sunday for the sale of certain lands, and the Supreme Court held that "the mere making of a contract on Sunday is not prohibited by the statute of Ohio." In the opinion given in that case, the court, among other things, said: "Numerous cases may be found in which contracts entered into upon a Sunday have been declared invalid, but it will be seen by an examination of the statutes under which the decisions were made, that they are, in every instance, much more comprehensive than the Ohio enactment. Their prohibition is not like that of the Ohio law, of common labor simply, but of any manner of worldly business, save acts of necessity or charity."

"Neither in common parlance nor in its strict philological sense, does the expression 'common labor' embrace the simple making of a bargain."

Again the court says, "It is difficult to see why the word 'business' was dropped by our legislature (from the statutes of England and other states of the union from which ours was framed) and the word 'labor' alone retained with the qualifying adjective 'common' prefixed to it, unless we suppose that by the phrase 'common labor' was meant ordinary

manual labor as contra distinguished from intellectual. The word 'labor' is usually employed to signify manual exertion of a toilsome nature. This is its ordinary popular signification, the meaning that must be given to it wherever it occurs in a statute, unless it is plainly used in a more enlarged or restricted sense. That it is not used in a more enlarged sense in our statutes is obvious. Earnest thought, long continued, may be laborious, but no one would think of punishing a man simply for thinking. To compose and write an ordinary letter of friendship is no small task to many persons, but surely it is not common labor, though it is a very common occurrence. There is a limit, then, and what better limit can be found than that furnished by the common understanding of the phrase common 'labor?' ''

"It is not to be understood that because a Sunday contract may be valid, therefore business may be transacted upon that as upon other days; as, for instance, by a merchant not of the excepted class. To wait upon his customers and receive and sell his wares is the common labor of a merchant, and there is a broad distinction between pursuing this avocation and the case of a single sale out of the ordinary course of business."

This last case expressly overruled the case cited from the 18 Ohio, and also the other two supra, so far as they hold that a contract made on Sunday is thereby rendered invalid, and established a construction of our statute which has been recognized ever since, viz.: that the mere making of a contract on Sunday is not prohibited by the law of this state. I have cited these cases mainly to show that for a number of years this statute was held to inhibit even the making of contracts or bargains on Sunday, and that this ruling was finally overthrown because it was held that contracts were not included in the prohibition of "common labor," and hence could be lawfully made on Sunday, and not because they fall within the exceptions of "necessity or charity."

But the following cases directly pass upon what constitutes a work of necessity or charity:

In McGatrick v. Wason, 4 Ohio St., page 566, which was a case that arose in this county, the defendant Wason requested his hired man, the plaintiff, to assist him in placing certain railroad cars and trucks (which he had sold and agreed to ship from Cleveland to Toledo) on a vessel, to which it was necessary to raise them from the dock by the use of machinery and manual effort. Plaintif consented. The work was to be done the next day, which was Sunday, November 15th, as the vessel was about to sail, and her master would not take the cars, etc., unless shipped on that day, and "it was a matter of great necessity that they should be shipped as speedily as possible, as navigation was about closing." While raising one of the trucks a part of the machinery gave way, owing to which the truck fell upon the plaintiff, breaking both his legs. To recover damages for this injury he brought suit, charging that it was owing to defendant's neglect that the machinery was insufficient. One of the defenses relied upon was, that when the injury happened plaintiff was in the commission of an unlawful act, to-wit, doing common labor on Sunday, and so being in fault himself, could not maintain his action.

On his part, plaintiff contended that it was a work of necessity, and hence within the exceptions of the statute.

Speaking to this question, the court said: "Was the shipping of the freight under the circumstances mentioned, a work of necessity.