III. SUNDAY OBSERVANCE LAWS LIMITED TO PARTICULAR OCCUPATIONS

Where the statute is directed against particular occupations, prohibiting the following of those occupations only, or where after a general prohibition an exception of certain occupations and callings from the operation of the statute is made, the decisions are not always in accord. Statutes of this character have been almost without exception attacked as class legislation and violative of the fourteenth amendment to the Constitution. A great many of these statutes have been directed against the occupation of barbering. (See, for example, Michigan, act No. 148, Laws of 1893; California, sec. 310% Penal Code, 1895; Rev. Stat. Colorado, 1908, secs 1844, 1845; New York, Session Laws 1926, ch. 835, p. 1556.)

A Supreme Court case which at first glance would seem to be authority against the constitutionality of such statutes is the case of Lochner v. New York (1905) (198 U. S. 45), in which the Supreme Court declared invalid a statute of the State of New York fixing the hours of labor in the occupation of a baker. It is submitted that, as hereinafter indicated, that case is no longer controlling. The court in that case declared that the statute in question could not be supported either as a labor regulation or as a health measure and was an unreasonable, unnecessary, and arbitrary interference with the right and liberty of the individual to contract. Several observations may be made with respect to the Lochner case. In the first place, although it was cited with approval in Adkins v. Children's Hospital (1923) (261 U. S. 525, 550), overthrowing the minimum wage act of the District of Columbia, the court was content to comment on the Lochner case somewhat mildly as follows:

"Subsequent cases in this court have been distinguished from that decision, but the principles therein stated have never been disapproved."

Immediately following that statement the court cited the case of Bunting v. Oregon (1917) (243 U. S. 426), in which case the court, without citing the Lochner case, upheld a statute of the State of Oregon prohibiting the employment of labor in any mill, factory, or manufacturing establishment more than 10 hours a day.

As said by Mr. Chief Justice Taft, in his dissenting opinion in the Adkins case (p. 564), it is difficult to "suggest any constitutional distinction between employment in a bakery and one in any other kind of a manufacturing establishment which should make a limit of hours in the one invalid and the same limit in the other permissible." It may be noted that in both of the dissenting opinions in the Adkins case it was suggested that the Lochner case had been overruled by Bunting v. Oregon.

Prior to the case of Lochner v. New York, the Supreme Court had held in Holden v. Hardy (1898), 169 U. S. 366, that a Utah statute limiting the hours of labor in mines and smelters was a legitimate exercise of the police power. That statute was sustained on the ground that the legislature "had determined that these particular employments, when too long pursued, were injurious to the health of the employees, and that, as there were reasonable grounds for supporting this determination on the part of the legislature, its decision in that respect was beyond the reviewing power of the Federal courts." The court in the Lochner case attempted to distinguish the statute involved in Holden v. Hardy from the statute there under review pointing out that the latter, limited as it was to bakers, was purely arbitrary, unreasonable, and unnecessary. The court said:

"There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health or the health of the individuals who are following the trade of a baker. * * * To the common understanding, the trade of a baker has never been regarded as an unhealthy one. * * * It might be safely affirmed that almost all occupations more or less affect the health" (pp. 58, 59).

The decision in the Lochner case has been severely criticized for the lack of consideration given the legislative determination of the necessity for the regulation.

In Radice v. New York (1924) (264 U. S. 292) the Supreme Court upheld a New York statute prohibiting employment of women in restaurants in cities of the first and second class between the hours of 10 p. m. and 6 a. m., justifying the statute as a nondiscriminatory health measure. Commenting upon the argument that the exclusion of restaurant employees of a special kind and of hotels and employees' lunchrooms brought about an unreasonable and arbitrary classification the court said:

"The statute does not present a case where some persons of a class are selected for special restraint from which others of the same class are left free (Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 564); but a case where all in the same class of work are included in the restraint. * * * Such classification must not be 'purely arbitrary, oppressive, or capricious.' (American Sugar Refining Co. v. Louisiana, 179 U. S. 89, 92.) But the mere production of inequality is not enough. Every selection of persons for regulation so results in some degree. The inequality produced, in order to encounter the challenge of the Constitution, must be 'actually and palpably unreasonable and arbitrary.' (Arkansas Natural Gas Co. v. Railroad Commission, 261 U. S. 379, 384, and cases cited.) Thus classifications have been sustained which are based upon differences between fire insurance and other kinds of insurance (Orient Insurance Co. v. Daggs, 172 U. S. 557, 562); between railroads and other corporations (Tullis v. Lake Erie & Western R. R. Co., 175 U. S. 348, 351); between barber-shop employment and other kinds of labor (Petit v. Minnesota, 177 U. S. 164, 168); between 'immigrant agents' engaged in hiring laborers to be employed beyond the limits of a State and persons engaged in the business of hiring for labor within the State (Williams v. Fears, 179 U. S. 270, 275); between sugar refiners who produce the sugar and those who purchase it (American Sugar Refining Co. v. Louisiana, supra, pp. 296, 297)."

The principle to be deduced from these cases is that once it is established that the regulation would normally fall within the sphere of the police power, it is no objection that the legislature may have singled out one or may have singeld out a dozen occupations or industries as special objects for legislative consideration. Directly on the question of constitutionality of statutes prohibiting barbering on Sunday, it appears that the weight of authority in State courts is to the effect that such statutes are valid police regulations and do not deny equal protection of the laws. (See for example, McClelland v. Denver (1906), 36 Colo. 486; People v. Bellet (1894), 99 Mich. 151; People v. Havnor (1896), 149 N. Y. 195; Ex parte Northrup (1902), 41 Oreg. 489; State v. Bergfeldt (1905), 41 Wash. 234; see also 15 L. R. A. (N. S.) 1908, pp. 646-50 and 20 A. L. R. 1114-17.) The cases cited, as well as many others, uphold the validity of State statutes prohibiting barbering on Sunday, notwithstanding the objections of counsel that the statutes were class legislation and denied barbers the equal protection of the laws.

But it should be pointed out that there are several State cases to the contrary. The case of City of Marengo v. Rowland (1914) (263 Ill. 531), for example, held invalid a Sunday closing law limited to barbers, basing its decision upon the ground, among others, that the statute singled out a particular business in which there was shown no particular need for regulation and thus violated the fourteenth amendment by a denial of the equal protection of the laws. (Ex parte Jentzsch (1896), 112 Cal. 468; State v. Granneman (1896), 132 Mo. 326; Armstrong v. State (1908), 170 Ind. 188; Eden v. People (1896), 161 Ill. 296; see also 20 A. L. R. 1115 for similar holdings.)

The Supreme Court of the United States has upheld a State Sunday observance law applying to barbers. In the case of Petit v. Minnesota (1900) (177 U. S. 163) there was before the Supreme Court a statute of the State of Minnesota which prohibited all labor on Sunday excepting works of necessity or charity and provided that barbering should not be deemed a work of necessity or charity. The Supreme Court upheld the statute against the contention that it was class legislation because the proviso made a distinction between barbers and other classes of labor. The court, assuming that the proviso had the effect of foreclosing any question as to whether the status of barbering as a work of necessity or charity under the original statute was to be decided as a question of fact, took the position that the classification was not purely arbitrary and that there was no adequate ground for interfering with the wide discretion necessarily exercised by the States in matters affecting the health, safety, comfort, and welfare of its people.

Moreover, the attitude of the Supreme Court has been to sustain statutes attacked upon the ground of discrimination unless the object of the regulation is so obviously irrational and arbitrary as not to be justified on any reasonable basis. Thus Lindsley v. Natural Carbonic Co. (1911), 220 U. S. 61 (cited with approval by the Supreme Court in O'Gorman & Young (Inc.) v. Hartford Fire Ins. Co.), decided January 5, 1931, laid down the following rules for testing whether a statute denies the equal protection of the laws:

"1. The equal-protection clause of the fourteenth amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary.

"2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality.

"3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.

"4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary" (pp. 78, 79).

In the O'Gorman case, Mr. Justice Brandeis, speaking of a New Jersey statute regulating insurance companies attacked as being unreasonable and as depriving the plaintiff of due process of law, said:

"As underlying questions of fact may condition the constituionality of legislation of this character, the presumption of constitionality must prevail in the absence of some factual foundation of record for overthrowing the statute. It does not appear upon the face of the statute, or from any facts of which the court must take judicial notice, that in New Jersey evils did not exist in the business of fire insurance for which this statutory provision was an appropriate remedy" (pp. 3, 4).

And in Bunting v. Oregon, supra, the court said:

"We can not know all of the conditions that impelled the law or its particular form. * * *

"But we need not case about for reasons for the legislative judgment. We are not required to be sure of the precise reasons for its exercise or be convinced of the wisdom of its exercise. (Rast v. Van Deman & Lewis Co., 240 U. S. 342, 365.) It is enough for our decision if the legislation under review was passed in the exercise of an admitted power of government; and that it is not as complete as it might be, not as rigid in its prohibitions as it might be, gives perhaps evasion too much play, is lighter in its penalties than it might be, is no impeachment of its legality. This may be a blemish, giving opportunity for criticism and difference in characterization, but the constitutional validity of legislation can not be determined by the degree of exactness of its provisions or remedies. New policies are usually tentative in their beginnings, advance in firmness as they advance in acceptance" (pp. 437, 438).

And again in Radice v. New York, supra:

"Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what the facts establish to be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. The State legislature here determined that night employment of the character specified was sufficiently detrimental to the health and welfare of women engaging in it to justify its suppression; and, since we are unable to say that the finding is clearly unfounded, we are precluded from reviewing the legislative determination" (p. 294).

IV. SENATE BILL 6077

Two constitutional objections that might be raised to Senate bill 6077 should, perhaps, be briefly noted:

(1) It might be objected that such a law is merely a disguised religious law, requiring the observance of Sunday as a religious obligation, and therefore repugnant to the first amendment to the Constitution (“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof"). This same objection has been discussed and overruled by State courts in cases where a State statute has been attacked as a violation of a similar provision in the State constitution.

In Hennington v. Georgia, supra, the Supreme Court of the United States pointed out that there being nothing in the legislation to indicate that it was enacted with any other purpose than to prescribe a rule of civil duty for all within the State, it could not be presumed that the legislature had any other purpose in mind. The court in that case said further (at p. 304):

"It is none the less a civil regulation because the day on which the running of freight trains is prohibited is kept by many under a sense of religious duty. The legislature having, as will not be disputed, power to enact laws to promote the order and to secure the comfort, happiness, and health of the people, it was within its discretion to fix the day when all labor, within the limits of the State, works of necessity and charity excepted, should cease. It is not for the judiciary to say that the wrong day was fixed, much less that the legislature erred when it HR-71-3-VOL 2-54

assumed that the best interests of all required that one day in seven should be kept for the purposes of rest from ordinary labor. The fundamental law of the State committed these matters to the determination of the legislature. * * * The whole theory of our Government, Federal and State, is hostile to the idea that questions of legislative authority may depend upon expediency, or upon opinions of judges as to the wisdom or want of wisdom in the enactment of laws under powers clearly conferred upon the legislature.

""

It is also interesting to note that the court quoted with approval language of the Supreme Court of Georgia taking the position that if such legislation as that which it had before it were within the police power of the State, the known religious motives of the legislative body enacting it could not offset its validity

"That which is properly made a civil duty by statute is none the less so because it is also a real or supposed religious obligation; nor is the statute vitiated, or in any wise weakened, by the chance, or even the certainty, that in passing it the legislative mind was swayed by the religious rather than by the civil aspect of the measure. (Hennington v. Georgia, supra, at p. 307.) "

It is submitted that in view of these remarks of courts confronted with a problem almost identical with that presented by the bill under consideration there can be no sound basis for attacking it as a law imposing a religious duty.

(2) It might be further objected that such a law deprives the individual of the liberty guaranteed to him by the fifth amendment of the Constitution, which secures him against invasion of his "liberty" by the United States in the same manner as the fourteenth amendment protects him against such invasion by a State. Such "liberty" includes freedom of contract, as was brought out in the case of Allgeyer v. Louisiana (1896) (165 U. S. 578), the court there saying:

"The liberty mentioned in that amendment [the fourteenth] means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen * * * to pursue any livelihood or vocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned" (p. 589).

Even if it be assumed that Senate bill 6077 would invade this constitutional right of barbers (and any such assumption must be questionable), by preventing them from contracting for Sunday employment, the legislation would nevertheless be valid because the violation of such a right has been held to be justifiable if done in the reasonable exercise of the police power. As stated in Lochner v. New York, supra, at page 53, "if the contract be one which the State in the legitimate exercise of its police power has the right to prohibit, it is not prevented from prohibiting it by the fourteenth amendment." As above pointed out, Congress would have the same power in legislating for the District of Columbia notwithstanding the provisions of the fifth amendment.

Applying the principles discussed in this memorandum it is submitted that the bill under consideration, if enacted into law, must be sustained unless it be clearly established that the selection of the occupation of barbering as the object of the regulation is so irrational and arbitrary as not to be justified on any reasonable basis.

It should be emphasized that perhaps more than any other occupation, barbering has been singled out by the legislatures of the several States for special treatment in respect of Sunday closing. This at least indicates a quite widespread sentiment that the closing of barber shops on Sunday bears a vital relation to the public peace, health, safety, and welfare.

Nor may it be said that because of the absence of any general Sunday closing law the public policy of the District of Columbia is opposed to legislation of this character. As a matter of fact it appears that an act approved September 17, 1869, by the council of the corporation of the city of Washington, made it unlawful to open or allow to be opened any barber shop or place where such business is done on Sunday, and prescribed penalties, and inquiry at the office of the corporation counsel of the District of Columbia has disclosed that while this statute is perhaps considered obsolete, there is no evidence that it has ever been repealed.

The local courts have also upheld special Sunday regulations. In the case of Siddons v. Edmundson (1914) (42 Appeals D. C. 459), the Court of Appeals of the District of Columbia upheld a police regulation forbidding any owner, proprietor, tenant, or other person, on Sunday, to permit or take part in any public exhibitions, with certain exceptions, and in the course of its opinion the court emphasized that the regulation was not in conflict with, but rather in aid of, laws in force in the District, citing various statutes enacted by the Congress, and declared:

*

"It thus appears that Congress has recognized what all other legislative bodies have recognized; namely, that Sunday is a day of rest. * * that the commissioners, being in closer touch with local conditions, would be in a better condition to judge as to what police regulations would be necessary for the protection of the health, comfort, and quiet of the people of the District" (p. 466).

Finally, considering the measure purely from a health standpoint, can it be said that the occupation of barbering in the District of Columbia is so far removed from considerations of the health either of the persons engaging in such occupation or of the public with whom they come in contact that the Congress would be arbitrary and unreasonable in enacting this regulation? It is well known that barbers in the District of Columbia work long hours. The work itself is arduous and tedious. In all fairness to the barber it can not be denied that his occupation may, and often does, result in the impairment of health, and that the character of his business lends itself readily to acquiring and then to the communication of disease.

In arriving at its decision in Petit v. Minnesota, supra, the Supreme Court cited with approval the following language from the State supreme court:

"Courts will take judicial notice of the fact that, in view of the custom to keep barbers' shops open in the evening as well as in the day, the employees in them work more, and during later hours, than those engaged in most other occupations, and that this is especially true on Saturday afternoons and evenings; also that, owing to the habit of so many men to postpone getting shaved until Sunday, if such shops were to be permitted to be kept open on Sunday, the employees would ordinarily be deprived of rest during half of that day." (P. 168.)

Recognizing, as a court must, (a) that the barbering occupation has been peculiarly the object of Sunday observance laws in the States; (b) that so far from being against the public policy of the District such a statute would apparently be in line with that public policy as disclosed in decided cases and in statutes on the same subject; (c) that barbering is a particularly tedious and tiring occupation because of the long hours and the character of the work; and (d) that the intimate and frequent contact with other human beings often results in exposure to disease-the court would not seem to be justified in holding, as a matter of law, that the prohibition against barber shops being open on Sunday is so unreassonable and arbitrary as to condemn it.

It is therefore, the opinion of this office that Senate bill 6077, if enacted into law, would be upheld as a valid exercise of the police power.

Respectfully submitted.

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CHARLES F. Boots,
Legislative Council.