*1 al. 283 Sheriff, Co. v. et 1927 C., 341; 501; 84 36. Cases distinguished: S. S. C., 427. 1928.

January 25, Court was delivered Chief Watts. Mauldin, Honor, For the reasons his assigned by Judge it is the of this Court that the judgment judgment Circuit Court affirmed. Cothran, Blease,

Messrs. Stabler Justices in : (concurring result) Carter concur not think that the

We result. We do 1, 2 rule in for the Shelley’s Case has application, Bowen,

reason life that no estate is to G. W. conveyed heirs is a and no remainder his is created. trust trust, executes use G. W. passive statute Bowen in fee. POULNOT, SHERIFF,

CHARLESTON OIL CO. v. ET AL. E.,

(141 454) Sunday 1. —Gasoline and Motor Oils are Within Term “Merchan- Penalizing Selling dise” as Used in Statute Merchandise 1922, 714). § view of accepted dictionary Sunday (Cr. Code —In definitions, gasoline and motor oils are embraced in the term 1922, 714, as used in Code

“merchandise” Cr. penalizing selling § Sunday. of merchandise on

2. op Sunday- Sunday Gasoline —Sale and Motor On Ohs is 'Not Penalizing Sunday “Work Within Statute Necessity,” Work 713, 1922, 714). gasoline or §§ motor oils are em- (Cr. —Since Code term “merchandise” Cr. Code braced in it cannot § matter of law that their sale on

be held as a can be de- necessity penalty not within clared a work of Section 713 Sunday. working on Legislative 3. Evidence —Court op Cannot Notice Intent Act Per- mitting of Gasoline Vetoed Governor.— Sunday, Sale gasoline or whether sale oil is a within Note: As R., L., Laws, in 4.7 annotation A. L. see R. C. Poulnot, Siteriee, Charleston Oil

Syllabus Constitution, repeal must be repeal Act Since to statute ap- favorably by majority of voted *2 Governor, legislative intent proved by cannot take notice of Court Assembly permitting gasoline by sale adopted of Act General by the Sunday Act was vetoed Governor. oils on where and motor 4. op op Assembly Sunday Sale to Authorize General —Failure Sunday Intention Veto Evidences on Over Governor's Gasoline 1922, §§ Sunday (Cr. Force Code Remain That Statutes Assembly permitting 713, adopted 714). Act —Where Gov- Sunday vetoed and motor oils on sale ernor, legislation proposed to pass failure of General Gen- evidence that regarded over veto should Governor’s 1922, Sunday (Cr. §§ Code Statutes Assembly intended that

eral 713, 714), remain in full force. Showing 5. op op Sunday and Motor Gasoline That Sale —Burden op Exception Charity op Necessity Sun- or is Work Within 713, 1922, 714).— §§ day (Cr. Code On Seller Statutes Rests within of merchandise oil is sale Since sale of and.motor 713, unless 1922, 714, penalized under Section and is Code § Cr. necessity or showing necessity charity, burden of or it is work of on charity rests seller. Charged op Sunday Person With Viola-

6. or Innocence —Guilt Being op Depends On Facts op Sunday Work tion Statute 1922, 713, 714).- or innocence of §§ (Cr. Necessity —Guilt Code Code 714, 1922, 713, pro- charged §§ with a violation of Cr. Sunday, depends working selling goods or on viding penalty for case, works of of each since and circumstances on facts excepted therefrom. charity or are 7. Corporations Corporations Cannot be Penalized — Under Stat- Selling Working Sunday por (Cr. Merchandise on Code utes 713, 716, 714, 1922, 1922, 716). enactment of Cr. Code §§ § —Since recognition that 713 and 714 did not legislative Sections con- .was laws, Corporations Sunday punishment of for violation of template applied! only per- the law as declared

and since age years upwards, corporations of 15 could not between sons 714, selling working 713 and penalized, Sections Sunday. goods on Corporations Corporations Could- Not be Punished Under

8. —While Agents Sunday Ti-ieir Officers Who Violate Them Statutes, 1922, 713, 714).- §§ (Cr. Thereunder Code —-While are Punishable 1922, punished under Cr. Code corporations be indicted cannot officers, 714, Sunday, their 713, working selling goods on §§ et al. Poulnot, Sheriff, v.Co. Charleston Oil prose- subject who agents, and violate the statutes servants cution thereunder. Penalizing Working Selling Sunday

9. of Goods on —Acts 1922, 713, 714). §§ (Cr. Held Unconstitutional Code Not 713, 714, working on 1922, penalty for providing §§ —Cr. Code not of State Con- selling goods Sunday, and for violative held stitution. Enjoin Injunction Equity From Proceed- Officers Not Could — Selling Working Prohibiting ing Enforce Valid Statutes 713, Cr. Code 714). §§ (Cr. Code Goods on —Since on Sun- 713, 714, goods working selling on or penalizing §§ re- enactments, injunction equity grant day could are valid their enforce attempting to straining Sheriff and Constable oils gasoline and prevent sale of so as to provisions

Sunday. *3 March, Reversed. Charleston, 1927. Grimball, J., Before the Charleston Oil Action for itself and Company, Poulnot, it against which Joseph class Sheriff represents, and others. From a County, of Charleston judgment defendants appeal. plaintiffs, Grimball

The order is follows: Judge This is restrain the proceeding Sheriff of this County, Constable, and other officers of like Chief nature State from with and others who sell interfering plaintiff gasoline Sundays. oils the return of After the defendants hearing and argu- counsel, after ments of all of carefully considering case, I the law am facts and convinced applicable -be lite should injunction pendente an granted. that said the case of Court well Bros. v. Pirkey As the Com- Va., 713; E., 764; 134 114 monwealth, R., 29 A. S. L. 1290: cannot, however, with the agree few Courts that

“We- must be ‘necessity’ the word construed to that mean hold now as when Act original did was thing the same that were deemed Many things in 1779. luxuries passed all, at are now deemed no existence then, had necessaries. 286 Siteriee,

Circuit Order For street example, railways, telegraphs telephones. relative, word elastic and and must be construed with reference live,” to the conditions under which we etc.

Similar are found in expressions one of our own cases C., 197; 214; 81 62 E., State R. James, S. A. L. 617; 902; 128-Am. (N. S.), Cas., Ann. Rep., St. 277. I, therefore, times, hold that these the use of the auto- mobile is also a necessity, and the sale of gasoline motor oils on Sundays should be deemed a work under our modern conditions life.

This Court will also note that an Act to the sale permit etc., of gasoline, was Sundays adopted both recently by Houses our General Assembly vetoed —but Governor. This bemay as an regarded evidence of legisla- tive intent under the rule laid down Crook v. Common- wealth, Va., E., 565; R., 50 A. L.

A careful laws reading of our con- me vinces are not intended to they prohibit the sale of and motor oils on Sunday. It is well known that sale of largely the control of corporations. Sunday laws apply only in the over case of except which prohibits corporations work in directing machine *4 shops. 714, therefore, 713 and are not

Sections applicable v. Southern corporations. Express Co\, E., no forfeiture There can be 714 of Section goods by for sale on Sunday corporations, offered as the Act pro- forfeit, that “the so shall offending vides etc.” The Act in meant question evidently to cover articles fruits, merchandise, etc., goods, such as that were usually exposed by cried sale merchants and hucksters in and, in days, my the olden did not judgment, and does not Co. SheriEE, Term, 1927 motor the sale of bar on contemplate placing oils. this, claim that have

In addition to defendants plaintiffs arrest and inter- like with threatened and others plight its on Sundays. ference with business Laws, Carolina, 2066 of Code of South

Section criminal 3, distinctly process Volume no provides “treason, or breach felony, be served on Sunday except of the peace.” laws 717 of Volume how the provides Therefore, to serve a war- be enforced. any attempt

may in like to arrest or its or others rant or agents plaintiff 713 and for offenses under Sections plight of law should be restrained would be violation plain the Courts. is, therefore, hereto- that the order restraining It ordered force, lit- and that fore issued be continued pending and until further order of defendants igation Sheriffs, Constables, what- officers of and all Deputy peace called, and all or character style they may soever whatsoever, be, and to act such assuming any capacity from arresting, restrained they hereby, enjoined servants, and its or with plaintiff, molesting, interfering other or corporations, person corporation agents, who in this County. or associations firms persons, have sell, forth, sale or who may'- show may expose sold, forth, to sale showed exposed as Sunday. known Day, commonly

oils on Lord’s the Clerk do file with It is ordered that plaintiff further in this cause without of this Court a bond or undertaking sureties, plaintiff in the sum of effect $250.00 such damages hereby enjoined to the pay will parties may sustain they amount said exceeding $250.00 finally the Court decide should injunction, reason of this *5 entitled thereto. not plaintiff Poulnot, Sheriff, Co. 288 Charleston Oil et al. Daniel, General; John M. Messrs. Gordie Attorney Page, General, Smith, for Assistant and Mendel Attorney ap- L. cite: General on sale and oils pellants, Sunday of R., 1104, 1106; Strob., 521; 2 is not a 47 A. necessity: P. 242; C., 484; 200; Ark., C, C, 100 74 20 291. 81 S. S. S. 713, 714, 716, such sale: Code. prohibits Ap- Statute Secs. Code; Va., 362; 341, 15 W. plicable corporations: Sec. P., 731; R. C. 101 357. no 7 Equity possesses power S. E., jurisdiction issue an threatened injunction restraining 208, 193; criminal 25 R. A. 125 prosecution: (N. S.), P. Y., 633-6; 2 784; C., 483; N. 74 R. A. (N. S.), S. P. Ed., 893; Ed., 406; 31 43 Storey’s Eq. Jur., Sec. P. P. 542; Notes, 131; 1890; 23, Rose’s 5 Pom. Jur., Eq. Sec. S., 214; S., 37-38; S., 243; 263 U. 264 U. 223 239 U. S., 621; Y., U. 125 N. 784.

Messrs. H. and P. W. Aley, respondents, L. Brckman cite: statutes not to ob- passed religious enforce Strob., 2 servance but to a redt give people and recreation: 530; 703, S., 113 710. The U. question of of E., 769; C., is a 197. thing question S. S. of fact: at last session to enact Attempt part law sale and oils evidence allowing E., 565; intent: 136 714. Code legislative S. Secs. C., 349. No criminal applicable corporations: S. Sunday; served on process may exceptions: Sec. C., 90; Code. here: Injunction jn'oper S., 223; 33; S., 369; 223 S., 195 U. 239 U. 240 U. 605; 47 U. Sup.'Ct. Rep., S., 20, 1928. January the Court was delivered

BlEasE. itself and the class which plaintiff, a-corporation, defendant, instituted this action against represents, Rector, of Charleston County, Sheriff Constable, whom

Chief and the class officers the}'- *6 289 Sheriee, Pouenot, Co. v. et al. Charleston Oil 1927 Common Pleas Charleston in the Court of represent, and of both for the County, temporarily perma- purpose their the defendants and all restraining agents, depu- nently ties, all law from enforcing, and assistants and officers 713 and to the of attempting enforce, provisions Sections of of of so to of Volume the Code pre- Laws situated, from similarly vent other the and plaintiff, and oils on Sundays. motor gasoline selling the were granted application, plaintiffs Upon proper Grimball, Honor, H. injunction his William temporary Circuit, were required of the Ninth and the defendants Judge cause should be con- why restraining to show the order to made return tinued herein lite. defendants pendente in- was the of the but the same deemed Circuit Judge, order him theretofore is- sufficient and the order b)r restraining force, final determination sued continued in the pending Grimball, of dated April of the The order litigation. Judge case. 9, 1927, of the will be the incorporated report men- from the order last The defendants have appealed to this Court. tioned return of the de- the and complaint plaintiff and' Circuit with the order of the Judge

fendants, together four questions: raise exceptions appellants, 714 of of the Code 713 and Volume Do (1) Sections oils? to sale of apply to motor oils on Sunday Can be sold (2) circumstances, and all upon all any persons, a work that the thereof is to be considered sale theory of necessity? before referred of the sections provisions Do the

(3) to corporations? apply the Court Equity grant Was (4) proper officers from prosecuting par- order restraining peace mentioned? sections ties for violation Sheriee, et al. In stated, a consideration proceeding of the questions remark that in the may most interesting arguments the able for both attorneys appellants respond- ents, we have been cited to numerous cases decided Courts of the United of the many States States *7 Union, American but firmly we that each and all of the before us questions for consideration are fully controlled the statutes of and the decisions and, Court; our own while we have enjoyed reading the many decisions from other Courts touching, many respects, the determination, issues before us for are, nevertheless, bound our own decisions must look to them alone.

The sections of the Criminal Code to be construed 1 are found of Volume Chapter of the Code

of 1922, title, under the “Nonobservance of the Day, and Lord’s disturbing are as religious worship,” follows: 1.

“(713) Penalty § Working Sunday. —No tradesman, artificer, workman, laborer, or other person what- soever, shall or labor, do exercise any business, or worldly work of their ordinary callings upon Day (com- Lord’s monly called or thereof Sabbath), any of ne- part (work or cessity charity only excepted); every person being of fifteen age or years upwards, offending" the prem- ises, shall, offense, for every such forfeit the sum one dollar.”

“(714) Penalty Selling § Goods on Sunday.— No or person whatsoever shall cry, show publicly sale, wares, or forth, expose merchandise, fruit, herbs, whatsoever, or goods, chattels upon Day, Lord’s thereof, or any part upon pain every so offend- ing cried, forth, forfeit the same so goods showed to sale.” exposed Co. Pouenot, SiteriEE, “merchandise,” as used Does word in Section New Inter- oils? In Webster’s include “merchandise” is defined the word national Dictionary, follows: commerce; bought whatever objects usually

“The merchants; wares; trade, market, or by goods; sold commodities.” Diet., 2 Bouv. authority, p.

In the well-recognized Law word: definition is following given merchants all which sell, “A term those including things hardware, as, gro- or retail: dry goods, either wholesale chattels ceries, etc. It usüally drugs, applied personal or im- for food required and to those which are not only, used, remain been such as after having mediate but support, ** * a slow consumption. are used only by or which *8 of synonym ‘goods,’ and often used as “It.may be ” ‘wares’ and ‘commodities.’ to include set forth were held broad enough statutes v. and in the case of Cain of chewing gum cigárs the sale E., 110; 480; sales of ice and C., 74 55 to cover Daly, S. S. 197; 62 James, C., in of v.

fresh meats the case S. State E., 617; 128 Am. 214; 18 R. A. S.), Rep., St. (N. S. L. Cas., 277; in v. Hon-

902; 16 Ann. to include cigars State E., 781; cream and ice dros, 100 and cigars S. S. E., C., 77; Henderson, 116

in v. Oliveros in the authorities above referred to Under definitions of cited, in line with the former decisions and and motor oils gasoline can be no doubt we think there in as in the term “merchandise” used are embraced statute. com oils are articles of and motor gasoline

Since of merce, within the meaning and merchandise Sec “shall that no person follows necessarily tion forth, mer to sale” such show cry, expose publicly thereof,” and Day, any part chandise “upon Lord’s Poulnot, Sheriee, Co. * * * tradesman, workman, laborer, other that “no * * * whatsoever, exercise” the business if motor oils Sunday, of and selling gasoline or work unless ordinary be “of their callings,” business or work such exercised is excused by or the business so so made the sale statute. as “necessity charity,” of provided reason Cir- with the cannot agree to the second question, As that, law, and the sale of ’gasoline a matter of cuit Judge to be be declared the Court can Sundays by motor oils the use of of The fact that necessity. a work decked oil therefor was need of and the vehicles when the statutes in the century, known eighteenth enacted, have bearing cannot were first consideration time to time this regard. and, has statutes, in some instances, these has re-enacted were last re-enacted them. They amended citi- in common use by at motor vehicles were that time well of were advised zens of legislators such use. . either with the statement are unable agree

We should take 3, 4 Circuit that the Court the learned Judge that, it was notice the fact vetoed although Governor, both Houses recently an Act was adopted which the sale Assembly, permitted our General bemay that this Sundays, regarded motor oils on The Court must bear intent. legislative an evidence State, that, it is necessary of this under the Constitution mind *9 to the measure looking of a statute that to effect the repeal a of both by majority favorably voted such repeal the have Assembly approval the General Houses of the Governor, of a veto Governor by or in the event the two-thirds must be passed the legislation proposed the Houses. members of each of of the to the Assembly the General pass pro- The failure of Governor, has the if it over the veto of posed legislation al. SheriEE, all, at should be evidence that any significance regarded the to be the General intended statutes proposed It our fixed remain full force and effect. is to repealed however, in the view, “Sunday change that the proposed what- any way is not to considered Court laws” us. now before soever determining questions the word Touching upon meaning “necessity,” statute, in the whole found speaking James, v. Woods said this: case supra, statute, of the “A work of within necessity, meaning labor to the worker himself be that save may necessary loss, or it be that may from unforeseen and irreparable There to the is no evidence that necessary community. were to here under consideration made

sales or deliveries for these necessity who had unusual or sudden articles, such sales or here whether deliv question so to the con ordinarily necessary people eries of Man community of the Town municipal stituting state, in a It is to the form of impossible legal"prop ning. osition, the inconvenience which would of need or degree McCord, Rivers, necessity. amount to Lawton Dec., is an term. It 741], Necessity Am. elastic does it means mean that which is but some not indispensable, than needful or desirable. more that which is merely thing merely doubt a which is needful desirable thing No of a be a to the residents town residents might also, which was a city. luxury century of a great So, There necessity. always, have now may become ago sanctioned, however, a to be which tendency, ought within the claim accustomed luxuries as necessities falling law. exception to set one apart

“The obvious intention statute is labor, rest so as to ordinary give opportunity day leisure of the higher things all for contemplation if the of life. Courts should This would be defeated purpose *10 Sheriee, [143 work a of which necessity, hold every interruption of the would break into the habits ordinary community, a inconvenience or discomfort. produce degree public could not be in on Saturday, that laid supplies Assuming it is there is still no a say grievous ground deprivation not to have ice fresh meat the week.” every day In the v. Telegraph case of Smith Company, S. 116; mental action was for anguish S. E., and willful failure on the of the alleged negligence part deliver a message relating Telegraph Company promptly to the death of a relative of the sickness 'and approaching on was filed message Sunday ques- plaintiff. laws, effect particularly tion arose as to of the In 713, before what is now quoted. case, Court Mr. which was written this statement was made:

Jones, following if statute be this held to an “So prohibit operator social and tele- messenger delivering business ordinary on it no Sunday, would have graphic messages application to a as it falls question, kind message properly within the necessity charity, classes as work of excepted since relates to sickness and of a rela- death approaching tive.”

In the it has decisions been held that sale of was not ordinarily clothing Council Charleston v. (City Benjamin, Strob. Dec., ; L.], C. 49 Am. same has holding 608J James, fresh and ice v. been made as to meats (State supra']. C., 77; Henderson, In the case of Oliveros 116 S. E., 855, it was the sale of ice cream and decided that held, as a mátter to be an act could not be cigars law, even when the of such sale were devoted charity, profits to charitable institutions. oils, like the sale

The sale of of med icines, ice, articles, at many Sunday, may clothing, *11 Poulnot, Sheriee, al. et Charleston Oil some times It is necessary. become for this- impossible down, law, a lay Court to as matter of hard and fast rule as to is what what is not- a to such necessity as sales. The all these Legislature, through years, running centuries, into has failed to declare what shall a constitute statute, the and it necessity must be assumed that there has been reason therefor. it good Undoubtedly, to fact due that the wise men who have in the many sat were well aware that what' might considered at some time and necessity would at place another time and be deemed otherwise. can place We that the who, earnest and sincere easily imagine lawmakers, time, time to have been confronted with questions laws, to while pertaining desirous all doing they could to “remember the to it Day, Sabbath nev keep holy,” ertheless, have Teacher, recalled of the Great question “Doth not each one of on the you loose his or Sabbath ox stall, his ass from him lead away watering.” We can do no better than in to follow the footsteps Woods, whose view distinguished was fully concurred three of our former able Chief Justices, Jones, Gary, and that: declare Pope, state, “It is impossible a legal proposi- form of tion, need or inconvenience which degree would * * * amount to necessity. is an Necessity elastic does not term. It mean that which is but it indispensable, means more than that which is something merely needful desirable.”

We might give many illustrations of con what we 5, 6 sider conditions sufficient to create a necessity

the sale of and motor oils on Sunday, just as them of we like sales might give of other articles of so, however, result, merchandise. To do would perhaps, construed, or at least it be so as an might effort on our part to do what have declared effect we cannot lay do— c. 11—s. R. Sheriee, v.Co. C. law, subject.

down, an ironclad rule on a matter hold, which therefore, what we content, say only areWe motor oils That sale of follows: those selling of the business and the exercise Sunday, in, where articles, under the law, .can only engaged Statute, necessity as a “work of done, as stated the burden of showing charity”; in seller; guilt must rest upon charity violation of the *12 with the charged of any person, nocence must, circum the facts and Statute, entirely upon depend in all case, prose is the rule of each as general stances for criminal offenses. cutions with the agree to the third

Referring question, the advanced appellants proposition general indictment, subject are sometimes corporations for crime. conviction, sentence, trial, and punishment them, or either of things, to do' these sought When it is so law. the however, authority clearly must appear holding warranted absolutely This position Co., 107 Exp. case of in the Southern this Court defendant, case, E., 1054. In that 92 S. for the violation and sentenced was convicted corporation, “the law, at the commonly time termed of the prohibition conviction and law.” In 'reversing a month gallon Eraser, sentence, through speaking said: in this arises that legitimately

“The other only question for violation of a corporation to' the punishment case month Statute) (the gallon The of the Statute Statute. unlawful any person, 1: Tt shall be in section provides etc. transport,’ firm, ship, or company corporation of the violating ‘Any provides: “Section not less to a fine of subject this act shall provisions for not less dollars, or imprisonment than one hundred Court.’ months, both, the discretion than three Sheriee, Pouenot, et al. 283J

“Criminal must construed. strictly Statutes words, firms, act 'persons, itself uses the corporations had the between difference company.’ Legislature So firms, mind, and, persons, corporations companies mindful of has seen fit difference, person, punish firms, and not the For this companies. corporations reason should have been and the indictment quashed, to the defendant is reversed.” judgment corporation An examination of 713 and 714 dis- readily Sections closse has included cor- subject those to- fine forfeiture's for porations among against offending provisions sections. view we have of this matter is further strengthened

because of the Volume Code language 1922, which was first enacted 1899. That section is as follows: 4. Certain Prohibited.—

“(716)' Labor § tradesmen, In addition to the penalties prescribed against artificers, workmen and laborers who do or exercise *13 labor, business or any worldly ordinary work of their the the Day called calling upon (commonly Lord’s Sab- thereof, or bath) any or Sunday, part any corporation, firm order, who or require direct company, work to be done in machine any shops shop shall, of Sunday, in cases con- except upon emergency, viction, misdemeanor, of a be deemed and shall be guilty in a sum one not less than and not fined hundred dollars hundred, than five for more dollars each offense.” It is to be in a observed that this last section not only but firm” is person, “any subject corporation, company, ¡therein the to and that punishment; penalties provided to be “in the stated addition to expressly penalties tradesmen, artificers, and against workmen prescribed who laborers” of 713 and provisions violate the Sections Sheriee, C. 716 is recog- Of clearly Section wording legislative 714,

nition that to adoption prior Sections 716, of did not punishment contemplate Section violation of laws. It is to corporations that distinction made to be noted also quite be meted out to who- work perform punishment that violates corporation or labor the former can only since Section provisions than $1, the latter shall be fined less fined while $100. the Circuit call attention to As did also Judge, law there contained provision only being “every person declared to apply if it had been Certainty, fifteen years upwards.” age to embrace the provisions the intention corporations would not have been section, age the clause as to of that inserted. connection,

In we deem it right proper have as to to another view we 8 we call attention a corporation 713 and 714: That while Sections thereunder, the individuals punished cannot indicted officers, directors, employees, who to be agents, happen the terms of that who violate corporation servants nevertheless, are, subject pun statute prosecution ishment such violations. the Circuit committed error Judge

We think case. The order in this restraining granting to be well settled subject law on this seems to us Daly, this Court in case of Cain v. the decision of Therein, whose Jones, cited. already the whole held as follows: was concurred *14 no Court of has to jurisdiction a “Ordinarily Equity are criminal unless such proceedings restrain proceedings in to the same try instituted to suit equity party of in Court Equity [citing issue before right cases]. under which the statute pros- But when the ordinance Poulnot, ShErieb, Co. Charleston Oil ecutions are had. is void and to' clearly injury irreparable result for its property rights may enforcement, may equity interfere.”

There can be no as to the of question constitutionality the statutes under consideration. been That has repeatedly held this Court from the case of Council Charles- City Dec., ton v. C. Benjamin, 49 Am. (33 L.), Strob. which was decided in down to the case of State

v. Hondros, in 1915. supra, decided

After the conclusion that reaching the statutes sought valid, 10 to be enforced it necessarily follows that it was their enjoin enforcement. improper is this Court that the order judgment of injunc- be, tion and same appealed hereby, is reversed.

Mr. Chiee Watts Messrs. Sta- Justice Justices concur. bler Carter I:

Mr. am in full (concurring) accord Carter Justice with the views in of Mr. expressed Justice Blease, that the sale of oils on Sunday is clearly State, prohibited by statutes of our except and, cases of charity further, that this necessity; Court should not undertake to state what or what condition state of facts should exist to constitute a necessity. The Legis- Act, lature not having thought proper, passage what condition should exist to constitute a ne- prescribe so, cessity, beyond of this Court to do sphere question becomes one of fact from all determined surrounding circumstances each Whether instance. it would be the law to what better for conditions prescribe is matter should to constitute a for the exist wise consideration our for this body, legislative Court. : result) No Cothran (concurring ques-

tion as to constitutionality legislation. raised that, As to< I reserve my opinion.