Commonwealth v. Waldman , 140 Pa. 89 ( 1891 )

Opinion,

Mr. Chief Justice Paxson:

The defendant is a barber, and was convicted before a magistrate, under the act of April 22,1794, 3 Sm. L. 177, for performing his worldly employment or business on the Lord’s day, commonly called Sunday. The magistrate imposed the usual penalty, and from his judgment an appeal was taken to the Quarter Sessions, under the act of April 17,1876, P. L. 29. The judgment was affirmed by that court, and tbe record brought up by a writ of certiorari.

The act of 1794 has now been in force for nearly one hundred years. It has been before this court in repeated, instances, and its constitutionality sustained. It would be a waste of time to refer to the cases. It is contended now, however, that the defendant was entitled to a jury trial, and that it is for a jury to say whether shaving a man’s face and cutting his hair, are works of necessity. If such questions were submitted to a jury we would have no rule at all; one jury would find one way, and another jury would decide the other way; so that the practical result would be that one barber would be compelled to close his shop on Sunday, while that of his rival would be open. The practical difficulty of the case cannot be met in this way, nor has any authority been shown for the claim to trial by jury. When the legislature shall decide that in every case of a petty summary conviction the defendant shall have the right to a jury trial, they will probably say so in language too clear to be misunderstood.

We are now asked to say that shaving is a work of “ necessity,” and therefore within the exceptions of the act of 1794. It is, perhaps, as much a necessity as washing the face, taking a bath, or performing any other act of personal cleanliness. A man may shave himself, or have his servant or valet shave him, on the Lord’s day, without a violation of the act of 1794. But, the keeping open of his place of business on that day by a barber, and the following his worldly employment of shaving his customers, is quite another matter; and, while we concede that it may be a great convenience to many persons, we are not prepared to say, as a question of law, that it is a work of necessity within the meaning of the act of 1794. We do not make the law; our duties are limited to interpreting it, and we feel ourselves bound by the construction which our predecessors have placed upon the act for nearly a century.

The judgment is affirmed.