18 Cal. 678 | Cal. | 1861
Field, C. J. and Cope, J. concurring.
This case involves the .constitutionality of the act of the last session of the Legislature, entitled “ An Act for the Observance of the Sabbath.” (Stat. of 1861, 655.) The act is in these words:
“ The People of the State of California, represented in Senate and Assembly, do enact as follows:
“ Section 1. Any person who shall hereafter keep open on the first day of the week, commonly called Sunday, any store, workshop, bar, saloon, banking house, or other place of business, for the purpose of transacting business therein, except as hereinafter especially provided, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than five, nor more than fifty dollars.
“ Sec. .2. The provisions of this act shall not apply to the keeping open of hotels, boarding houses, restaurants, taverns, livery stables, retail drug stores, (for the legitimate business of each) or such manufacturing establishments as are necessarily kept in continued operation to accomplish the business thereof, nor to the sale of milk, fresh meats, fresh fish and vegetables.
“ Sec. 3. Prosecutions for violations of this act may be either by complaint to a magistrate, or by indictment by a grand jury, and all fines collected upon convictions under this act shall be paid into the Common School Fund of the county.
“ Sec. 4. This act shall be in force from and after the first day of August, 1861.”
It is urged that this act contravenes the first and fourth sections of the first article of the Constitution of this State. The first section declares that all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness. The fourth section asserts that the free exercise and enjoyment of relig
These sections were commented upon by the several Judges of this Court at the April term, 1858, when the law of that year upon this general subject was under review.
The general principles announced by those sections are not peculiar to the Constitution of California. They are principles expressly asserted or impliedly recognized in almost every one of the Constitutions of our sister States. And in almost every State acts like the one under consideration have been passed; and in every instance, it is believed, where their constitutionality has been considered, it has been affirmed. And it is a circumstance of no slight significance that these laws, in States where they have not been assailed in Appellate Courts, for years have been recognized by all departments of the governments in which they exist, without a question of their validity. Probably such strong concurrence of opinion on one leading question affecting the general community, cannot be found in the history of American jurisprudence.
The following cases are express adjudications in favor of the binding force of such acts: Specht v. Commonwealth, 8 Barr, 312; Cincinnati v. Rice, 15 Ohio, 225; Bloom v. Richards, 22 Id. 387; City Council v. Benjamin, 2 Strob. 508; Watts v. Van Ness, 1 Hill, 76; Shover v. State, 5 Eng. 259; State v. Almes, 20 Mo. 214; Hall v. State, 3 Kelly; 18; Bode v. State, 7 Gill. 326 ; Jones v. People, 14 Ill. 196 ; Story v. Elliott, 8 Cow. 27; McSweeny v. O’Donnell, 5 Ala.
It is impossible for us to perceive how, upon principle, apart from all this authority, the act can be successfully assailed. It is conceded that, unless in some way restrained by the organic law, the Legislature has full power to pass laws regulating the relations, contracts, intercourse and business of the general society and of the particular members in respect to each other. The general duty of legislation is cast upon this department, and that duty is to be exercised for the general welfare; and of the policy of these laws the Legislature is made the judge. Accordingly, the codes of all States are full of statutes regulating contracts, declaring how they shall be made, how enforced, what agreements shall be valid, what
Unquestionably, under our system, the Legislature has power to repress whatever is hurtful to the general good. This is a great purpose and end of all government. It is just as true that in our theory the Legislature must generally be the exclusive judge of what is or is not hurtful. Within this wide range of power, the Legislature moves without further restraint than the limitations which the Constitution has fixed to its action. If the Legislature declares that the merchant shall not keep his storehouse open on Sunday, this is not opposed to any limitation we have yet considered. It does not prevent the acquisition of property any more than the taxes laid upon that property, or the requirement that he •shall obtain a license, or that he shall keep streets about his premises in-repair. The Legislature does by this act declare its sense of
It is contended with more earnestness that this act is opposed to.
The title of the act is relied on; it is, as has been seen, “ for the Observance of the Sabbath.” But even if the title of the act could be looked to as furnishing decisive evidence of its purpose, we see nothing in these words which indicate that the phrase was designed to imply a requirement of a religious character, or that the act was, in any respect, designed to subserve a religious purpose. The act itself in the body of it explains in what manner the day was to be observed, and shows that the object of it was only to require duties purely civic or secular. But even if this were otherwise, it would be difficult to maintain, as the Supreme Court pf Pennsylvania observed in the case in 8 Barr, from the circumstance that the act shows one of the motives of its framers was to enforce a religious respect to the Sabbath, that this invalidated it on the ground of its unconstitutionality—the body and substantive provisions of the law showing a purpose and prescribing duties or forbidding acts merely secular in their character.
In our judgment, the Act of 1861 was merely the exercise by the Legislature of the municipal power of legislating for the welfare of the general society, by a law which inhibited what was considered injurious to the public -weal; that it has a general power to pass laws for this end, and it rests with the objector to show some restriction or limitation on the power, and that this has not been done in this instance.
We do not deem it necessary to pursue the discussion. The opinion of Mr. Justice Field in Ex parte Newman (9 Cal. 518) discusses the main questions involved, and more fully expresses our views.
The prayer of the petition is denied, and the petitioner remanded to the custody of the Sheriff-