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The defendant himself testified it was. But was it a work of necessity, within the meaning of the act?

"In answering this question, we must always keep in mind that it is no part of the object of the act to enforce the observance of a religious duty. The act does not to any extent rest upon the ground that it is immoral or irreligious to labor on the Sabbath any more than any other day. It simply prescribes a day of rest, from motives of public policy, and as a civil regulation, and as the prohibition itself is founded on principles of public policy, upon the same principles certain exceptions are made, among which are works of 'necessity' and 'charity.' In saying this I do not mean to intimate that religion prohibits works of necessity or charity on the Sabbath, but merely to show that the principles upon which our statute rests are wholly secular, and that they are none the less so because they happen to concur with the dictates of religion." "But it is a task of much difficulty, and one that a court ought not unnecessarily to attempt, to draw a line that shall clearly distinguish works of necessity from those that are not. It is easy to say that to feed the hungry, attend the sick, rescue a fellow being from danger, and also to take care of and preserve a dumb brute, are all works of necessity and charity. The care and preservation of property, though inanimate, may also be a work of necessity. If a house should take fire on Sunday it would obviously be lawful to save it by labor. It would be equally so to save a crop from the effects of bad weather, when to omit doing so would result in its loss or material injury; or for a merchant to save his goods, a manufacturer or mechanic his wares, a seaman his vessel, or, in a word, any man his property, in danger of destruction or injury, on the Sabbath day. Nor will it do to limit the word 'necessity' to those cases of danger to life, health, or property, which are beyond human foresight or control. On the contrary, the necessity may grow out of, or be incident to, a particular trade or calling, and yet be a case of necessity within the meaning of the act. It has been held that it is lawful to keep a blast furnace at work on Sunday, because to extinguish the fires would destroy the furnace, and the necessity of keeping it going was of course foreseen when the fires were started, but the necessity, though foreseen, could not reasonably have been prevented."

And in conclusion, the court held that there was a necessity for the loading of the cars and trucks on that day, resulting from natural causes and the general course of trade and commerce. The cars were shipped on Sunday, because the vessel-the only one that could be obtained-was to sail on that day, and delay was perilous, the navigation being about to close from the severity of the weather.

In Nagle v. Brown, 37 Ohio St., 7., the court held: "It is not unlawful in this state to travel upon public highways for pleasure merely, upon the Sabbath day. In addition to common labor (works of necessity and charity only excepted) the statute makes it unlawful for any person of fourteen years or upward to be found on the first day of the week, commonly called Sunday, sporting, rioting, quarreling, hunting, fishing or shooting. Beyond these inhibitions the observance of the day is left to the conscience and religious convictions of the citizen, and in our judgment the innocent and healthful exercise of riding or driving is not within the meaning of the terms of inhibition. The only possible doubt is as to the meaning of the word 'sporting'; but whatever may be included within the meaning of that word, we do not believe that the legislature intended to inhibit the quiet, peaceful and invigorating exer

cise of either walking or riding upon the Sabbath day, although no urgent necessity or charity may prompt the exercise."

In Hastings v. Columbus, 42 Ohio St., 585, the Supreme Court, by a majority of three to two, held that "publication of the preliminary and other ordinances with respect to a street improvement, in a newspaper, of general circulation in accordance with the terms of the statute, is a valid and legal publication, although such newspaper is published only on Sunday.'

In that case the court held that the prohibition of common labor by the statute had no relation to official acts, and that it was lawful to serve process or notice on Sunday through a ministerial officer or by publication in a newspaper issued on that day, and the judge delivering the opinion said: "and the fact that the persons engaged upon the publication of that Sunday newspaper may have violated the statute against 'common labor' in preparing and circulating it, no more affects the validity of the notice than the fact that the sheriff may have committed some offense at the time he served a summons, would affect the validity of the service."

So far as I have observed, the foregoing are all the cases in which our Supreme Court have construed our statute prohibiting common labor on Sunday.

In England, and in other states of the Union, there have been decisions under like statutes, but none where the act reads exactly as ours does. Yet, so far as they undertake to define what constitutes works of "necessity and charity," they are more or less pertinent in determining what the same word means in our act. To a few of these cases 1 refer:

In 4 Clark & Finnelly, p. 234, the case was an appeal from the decision of the Scotch Courts to the English House of Lords, and was brought by a barber as master against his apprentice and his surety on bond of indenture for damages, because the apprentice had absented himself from his master's shop on Sunday mornings without leave, and had failed and refused to shave his master's customers on that day. The Scotch law provided that "no handy laboring or working be used on the Sunday, except the duties of 'necessity and mercy.' The English act contained the like prohibition of work on Sunday, "works of necessity and charity only excepted."

The magistrates of Dundee gave judgment for the master, saying that "it appears very obvious that if workingmen who are not accustomed to shave were forbidden the aid of the barbers in their shops on the Sunday mornings, many decently disposed men would be prevented from frequenting places of worship, and from associating in a becoming manner with their families and friends through want of personl cleanliness, and the attempt to reduce the minor evil might lead to some more serious."

The Lord Ordinary of the Scotch courts however reversed this holding of the magistrates, and in doing so said: "This is the first instance in which a court of law has directly and positively ordained a handicraftsman without any pretense of necessity or serious urgencey to work at his handicraft on Sunday.

"The cases of apothecaries' shops being open, and of Sunday traveling, and other cases that were cited in the argument, are quite inapplicable. These exceptions have been admitted on the ground that they may frequently be requisite for the purposes of necessity and mercy, and

that it would be impracticable to investigate cases of occasional abuse. But it is ridiculous to speak of a public shaving shop as an establishment of such necessity as not to admit of interruption for a single day in the week. If the advocator had refused to shave the head of a lunatic or some one whose skull had been fractured, the cases would have been parallel."

And in this decision of the Lord Ordinary the House of Lords concurred. The Lord Chancellor saying: "If the act in question be held to come under the exception in the law of Scotland as to the observance of the Sabbath, it is impossible to say where the exceptions will stop. This is not a work of necessity, nor is it a work of mercy. It is one of mere convenience and if your lordships were to act upon this case as a precedent for other cases founded upon no more than convenience, you would, I apprehend, be laying down a rule by which this law of Scotland would be repealed.

This case was decided in 1835.

The Indiana Statute on this subject is very similar to our own, and punishes those found at "common labor" on Sunday (works of necessity and charity only excepted). Under that act of the Supreme Court of that state in 1889, (119 Ind. p. 377), held: "Whether the shaving of a customer by a barber on Sunday is a work of necessity within the meaning of the exception contained in the statute is a question of fact for the determination of the jury under proper instructions from the court." A conviction before the mayor, of a barber for shaving a customer was in that case sustained. The court said: "It is earnestly contended that the matter of shaving is a work of necessity, and hence, that no criminal prosecution will lie for peforming that work of necessity on Sunday."

"Many legal definitions of the word necessity are to be found in the authorities, but the following from the Chicago Legal News seems to give the result of all the authorities on the subject: The law contemplates that the community has a general need that all should rest on Sunday. Most of the affairs and doings on week days are less important than this need of a rest day, but some few are superior. To keep the body physically sustained by food; to provide the facilities for worship during some hours of the day, and for restful mental occupation during others, to nurse and heal the sick; to provide prompt burial of the dead, these and some other objects are superior to the need of repose. Necessary work includes all that is indispensable to be done on Sunday in order to secure attainment of whatever is more important to the community than the day of rest."

"The question in each case must be decided according to the circumstances, and is therefore more a question of fact than of law."

In 45 Arkansas, 347, the Supreme Court of the state said, "It would take judicial notice that the shaving of his customers by a barber is a worldly labor, or work done by him in his oridnary calling, and not within the exceptions of the statute.

In Common wealth v. Jacobus, 1st Pa. Leg. Gaz., 491, and in Same v. Williams, 1 Pears, 61, it was held that a barber who shaves persons in a public shop on Sunday is guilty of Sabbath breaking.

There are one or two decisions where shaving on Sunday has at least incidentally been upheld. A case in 145 Mass. p., 353, has been cited by counsel; but that case, we think, was exceptional in its facts. A shoemaker, who was a neighbor of an old man, an invalid, unable to shave himself, had for a long time shaved the old man at his request on

Sunday, and subsequently brought suit against the invalid's estate for that service, and against the objection that the work was done on Sunday, was allowed to recover compensation. I need hardly say that that case presents no similarity to the case at bar. Indeed, Massachusetts with its scores of decisions which I will not stop to enumerate, upholding with almost rigorous severity the prohibitions of labor on Sunday, can not successfully be cited as sustaining any liberality on the Sunday labor question.

I have said more that I intended, and my only apology is, my respect for the opinion of the acting police judge who decided this case below, and the great interest recently evinced in the question, especially among a large number of the barbers who keep a shop, and their employees. After a careful examination of the authorities and much thought, I can perceive no reason to declare that the facts of this case bring it within the exception of necessity or charity, within the meaning of the statute, or to hold that barbering generally on Sunday is lawful in this state.

"It was held by the court below, that a man had a right to shave himself on Sunday, and having that right he had a right to employ another to do that which he himself might lawfully do. But assuming that a man may lawfully shave himself on Sunday, it does not follow that a barber may throw open his shop to the public and barber anybody and everybody, and thus continue on Sunday the common labor of every other day. If shaving, cutting and dressing hair, etc., is common labor on a week day, we suppose it is still common labor though done on Sunday, and if barbering is a necessity on Sunday, we suppose it is equally a necessity on every other day, and so the argument would run that the work of the barber, though common labor, is always a work of necessity. It is said that the human family very early in its existence was ordained to labor; that labor is a necessity, a law of man's being. I suppose in a general sense that all labor is a necessity, and barbering just as much so and no more than a thousand other employments. I suppose it is just as necessary to have a shirt, pants and coat, and to have them cleaned when soiled as it is to have the face shaved, mustache curled, or the hair cut or dressed. And just as necessary to have stores and laundries open and in operation on Sunday to supply the former, as barber shops to provide the latter."

The truth is, as I believe, that all these things, and many others, might be, at times, a convenience on Sunday, but cannot be held to be necessities within the meaning of our statute. To hold otherwise, and allow these conveniences to annul the statute, would, in my judgment, work a practical repeal of the act, and be a case of judicial legislation.

It is also urged that society has so changed from what it was when the act was passed, that what the authors of this law might hold not to be necessary, the present generation might think was so, and hence in construing the act, we should determine what is a necessity by our standard, and not theirs. But shaving, etc., is not a modern invention, and I had supposed that in every case, if we can ascertain what the framers of a law meant by it, that meaning always controlled.

This statute means now just what it meant when it was passed in 1831, and should be enforced by the courts as it now is. Whenever the legislative power shall be of the opinion that the work of the barber, and open barber shops on Sunday, is more important than one day of rest in seven for all who do common labor, it will, doubtless, change the law,

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whether prompted to do so by considerations of convenience or the changed conditions or requirements of society; but, until it does so, the courts are simply to construct it as they find it, unchanged by lapse of time or any supposed or real change in the desires or customs of society. Again, it is said that our statute on this subject is unconstitutional, because it is class legislation, inasmuch as it exempts from its operation "those who conscientiously do observe the seventh day of the week as a day of rest, "and a case cited from the Supreme Court of Texas seems to so hold. I have not examined the constitution of that state, for the reason that many of the states of the union contain the same clause in their statutes in this respect as our own, and because for nearly sixty years the present act has been recognized by all our courts as valid, and as early as the Cincinnati v. Rice, 15th Ohio, 225, our Supreme Court was asked to hold an ordinance of the city of Cincinnati unconstitutional and contrary to the policy of the state as declared by the statute, because it was supposed not to contain this very clause. But it was held that the ordinance when properly construed did exempt Jews, etc., and for that reason it was sustained. Indeed, the second syllabi of that case declares that an ordinance which did not contain such clause of exemption is invalid.

It follows that the exceptions to the holdings of the police court are sustained, and it is so ordered.

H. C. Bunts, for state.

Foran & Dawley, for defendant in error.

455

PLEADINGS EVIDENCE.

[Cuyahoga Common Pleas, April Term, 1890.]

WERTHEIMER ET AL. v. E. G. MORSE.

1. A general denial which is false in fact will be stricken off on motion as sham: such pleadings are an abuse of the privileges of the code of civil procedure.

2. The court will hear evidence in support of such a motion to determine whether the pleading was filed in good faith and is false in fact.

December 28, 1889, the plaintiffs, Wertheimer & Co., obtained judgment against E. J. Cole, in a justice court for $300 and costs. On the seventh day of January, the defendant E. G. Morse entered into an undertaking in appeal in the usual form prescribed by law. The appellant failed to file his transcript, and at the April term of the court the plaintiff appellee filed a transcript of proceedings in the court of common pleas, and April 7th judgment on appeal was entered by that court in favor of appellee, and subsequently petition was filed to recover the amount of the judg ment and costs from E. G. Morse, the defendant herein, as bondsman for the judgment debtor Cole. The petition contained four allegations, (1) judgment in the justice court, (2) undertaking in appeal, (3) judgment in appeal, (4) non-payment of the judgment. As an answer to the petition, the defendant E. G. Morse filed a general denial, whereupon the plaintiff files this motion to strike the answer from the files as sham and frivolous.

In support of the motion the plaintiff took the deposition of the defendant E. G. Morse, and in answer to interrogatories the defendant