59 Cal. 6 | Cal. | 1881
The return to the writ in this case shows that the petitioner is held under a commitment issued by Robert E. Warren, a Justice of the Peace of Butte County, on a judgment of conviction rendered on the 5th day of August, 1881, and that the offense, of which the petitioner was convicted, was that of “ keeping open a saloon on Sunday for the purpose of transacting business therein.”
The section of the Penal Code, under which the prosecution and conviction were had, reads as follows:
“ Every person who keeps open on Sunday any store, workshop, bar, saloon, banking-house, or other place of business, for the purpose of transacting business therein, is punishable by fine not less than five nor more than fifty dollars.” (§ 300.)
The proceedings, including the complaint, judgment, and commitment, are regular upon their face, and can only be attacked in this proceeding by habeas corpus, on the ground
In the first place, it is claimed on behalf of the petititioner that the act violates section 25, article iv, of the Constitution, inasmuch as it is a special law, and is therefore repugnant to section 25, article iv, which declares that “ the Legislature shall not pass local or special laws in any of the following cases:
“ First—Regulating the jurisdiction and duties of Justices of the Peace, etc.
“ Second—For the pwiishment of crimes and misdemeanOTS33 ^ ^ ^
At the time the law in question was passed, there was no constitutional objection to special and local legislation. This was held by the Supreme Court in the very early case of Ryan v. Johnson, 5 Cal. 87, and the same doctrine was again laid down in the case of The People v. C. P. R. R. Co., 43 id. 398. When the act was passed it was a valid act, even conceding for the purposes of the argument that it was a special law, as is claimed in this case. The question therefore arises, was the act abrogated by the provision of the new Constitution referred to above ? The language of section 25, article iv, is that “the Legislature shall not pass local or special laws!’ The constitutional inhibition manifestly applies to future and not to past legislation. The provision is purely and simply prospective in its operation, and the words will not justify any other construction. It did not, therefore, operate as a repeal of acts passed by the Legislature, years before the Constitution went into effect, but merely put a stop to all future legislation of that objectionable character. If authority were required in support of this view, it will be found in the following cases: Allbyer v. The State, 10 Ohio St. 588; The State v. Barbee, 3 Ind. 258; Hingle v. The State, 24 id. 28; Cooley’s Const. Lim. 76.
In the first of these cases the Supreme Court of Ohio says: “ It is provided by section 26, article ii of the Constitution of 1851 of this State, as follows: ‘ All laws of a general nature shall have a uniform operation throughout the State; nor shall any act, except such as relates to public schools, be passed, to take effect upon the approval of any other authority
In the above case the Court had under consideration an act of the Legislature of Ohio, passed on the 7th day of March, 1835, for the more effectual punishment of certain offenses in the County of Hamilton, and held the same valid.
The next case to which I will refer is that of The State v. Barbee, 3 Ind. 258, which arose under a provision of the Constitution of that State. By section 22, article iv, of the Constitution of the State of Indiana, it is provided, that the General Assembly shall not pass local or special laws in any
It will be observed that the provisions of the Indiana Constitution which received a judicial interpretation in the case of The State v. Barbee was precisely similar to that found in our own Constitution; and the case is, therefore, an authority directly in point.
On the question whether the act is general or special legislation, it is not necessary to decide. But I must not be understood as admitting that the act is special in its character; and will refer to a few authorities on the point.
“A general or public act regards the whole community;.
“1. In legal language acts are deemed to be public and general acts, which the Judges will take notice of without pleading, viz.: Acts concerning the King, the Queen, and the Prince; those concerning all prelates, nobles, and great officers ; those concerning the whole spirituality, and those which concern all officers in general, such as all Sheriffs, etc. Acts concerning trade in general, or any specific trade, etc. 2. Private acts are those which concern only a particular species, thing, or person, viz.: Acts for toleration of dissenters; acts relating to any particular place, or to divers particular towns, or to one or divers particular counties, or to the colleges only .in the universities.”
Second objection: That the act is void, under section 11, art. i, of the Constitution. On this point I will refer to the cases of Brooks v. Hyde, 37 Cal. 366, and Ex parte Smith and Keating, 38 id. 702, as to the meaning of that provision of the Constitution which declares that “ all laws of a general nature shall have a uniform operation.”
It is true that section 301 of the Penal Code excepts from the operation of the law certain kinds of business, but this it was perfectly competent for the Legislature to do, without violating the constitutional provision respecting uniformity. The act prohibits the carrying on of certain kinds of business on Sunday, throughout the State. The law extends over the entire State, and applies to all persons in the State. It is therefore uniform in its operation, and I can see no good reason why the Legislature might not prohibit drinking-saloons, billiard-rooms, and tenpin-alleys from being kept open for the transaction of their regular business on Sunday, and at the same time permit drug-stores and hotels to remain open, without violating the clause requiring uniformity in the operation of all laws of a general nature.
In view of the foregoing cases and the principles estab
3. There remains another objection to the act, which I will now proceed to notice.
Article i, section 4, of the Constitution declares that “ the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this- Stateand the language of the' fourth section of article i of the Constitution of 1863, was precisely the same, totidem verbis.
Indeed, it is said by Mr. Kent, in volume 1, page 633, of his Commentaries, that “ the free exercise and enjoyment of religious profession and worship may be considered as one of the absolute rights of individuals, recognized in our American constitutions, and secured to them by law. Civil and religious liberty generally go hand in hand, and the suppression of either of them, for any length of time, will terminate the existence of the other. It is ordained by the Constitution of the United States, that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, and the same principle appears in all the State Constitutions. The principle is generally announced in them without any kind of qualification or limitation annexed, and with the exclusion of every species of religious, test.”
It is very clear, therefore, and no one would have the presumption to deny the proposition, that if the act now under consideration does in any manner interfere with the free exercise and enjoyment of religious profession and worship, it is unconstitutional and absolutely void. But it has been held over and over again, in numerous States of the Union, that an act prohibiting the keeping open of certain places of business on Sunday is not a religious regulation, and that such an act in no way interferes with the free enjoyment of religious profession and worship. It is purely a secular, sanitary, or police regulation, and has been too frequently upheld as such, to be shaken at the present day. Mr. Cooley, in his able work on Constitutional Limitations, uses the following language: “ The laws which prohibit ordinary employments on Sundays are to be defended either on the same grounds
I can not do more than briefly refer to a few of the very numerous authorities on the question now under discussion.
In the case of City Council of Charleston v. Benjamin, 2 Strobh. 508, it was held that “an ordinance of the City Council of Charleston, making it penal for any person to expose to sale, or sell in any shop, etc., any goods upon ‘ the Lord’s Day,’1 commonly called Sunday,’ is not a violation of the first section of the eighth article of the Constitution of this State.” That article is in the following language: “ The free exercise and enjoyment of religious preference and worship, without discrimination or preference, shall forever hereafter be allowed within this State to all mankind.”
The next case is Shover v. The State, 5 Eng. 259, and it was there held by the Supreme Court of Arkansas, that “the Christian religion is recognized as constituting a part of the common law; its institutions are entitled to profound respect, and may well be protected by law. The Sabbath, properly called the 'Lord’s Day,’ is amongst the first and most sacred institutions of Christianity, and the act for the punishment of Sabbath-breaking is not in derogation of the liberty of conscience secured to the citizen by the 3d section of the Declaration of Bights.”
In Frolickstein v. The Mayor of Mobile, 40 Ala. 725, the Supreme Court of Alabama say: “A statute or municipal ordinance, prohibiting the sale of goods by merchants on Sunday in its application to religious Jews, 'who believe that it is their religious duty to abstain from work on Saturday, and to work on all the other six days of the week,’ is not violative of the 3d section of the 1st article of the State Constitution, which declares that no person shall' upon any pretense whatever, be hurt, molested, or restrained of his religious sentiments or persuasions.’ ”
The Court in this case say, that “the legislation on the subject of abstaining from worldly employment on the first day of the week is referred to the police power of the Legislature. It has its sanction in the teaching of experience, that the general welfare and the good of society require a suspension of
In The State v. Ambs, 20 Mo. 219, the learned Judge, delivering the opinion of the Court, in which the validity of the Sunday law was sustained, remarks: “How startling would the announcement be to the people of Missouri that, by their organic law, they had abolished Sunday as a day of rest, and had put it' out of the power of the Legislature ever to notice it as such? With what sorrow would the toil-worn laborer receive the intelligence that there was no longer by law a day of rest from his labor? The poor beasts of burden would soon find by experience that our laws were no longer tempered by the softening influence of Christianity, and all the social advantages which great and good men have attributed to the observance of Sunday, as a day of rest, would be taken away.”
The foregoing are some of the cases to be found in the reports of the Southern States, and they are, in this respect, the views of Southern Judges, in no manner influenced by sectarian or puritanical ideas. The same current of authority runs through the cases to be found in the legal reports of the Eastern, Western, and Middle States.
In Fowle v. Larrabee, 26 Me. 464, the Court held a promissory note, made on the Lord’s Day, given and received as the consideration for articles purchased on that day, as void, the act done being in violation of law.
In Connecticut, contracts made on the Lord’s Day have been decided to be invalid. (Wight v. Geer, 1 Root, 474; Fox v. Abel, 2 Conn. 54.)
The case of Hudson v. Geary, 4 R. I. 484, sustains an ordinance of the City of Providence prohibiting the opening of places of trade or entertainment on Sunday.
In the case of the Commonwealth v. Has, 122 Mass. 40— a very recent case—it was held that the provisions of the general statutes, c. 84, p. 1, prohibiting the keeping open a shop on the Lord’s Day is constitutional, and the learned Judge there remarks: “While in the Constitutions of many
In New York the same doctrine has been sustained by the Courts. Speaking of a Sunday law in the case of Lindenmuller v. The People, 33 Barb. 548, the Court say: “But as a civil and political institution, the establishment and regulation of a Sabbath is within the just powers of the civil government. ® * * It is a law of our nature that one day in seven must be observed as a day of relaxation and refreshment, if not for public worship. Experience has shown that the observance of one day in seven as a day of rest, is of admirable service to a State considered merely as a civil institution. (4 Bl. Com. 63.) * * * The stability of government, the welfare of the subject, and the interest of society have made it necessary that the day of rest observed by the people of a nation should be uniform, and that its observance should be to some extent compulsory, not by way of enforcing the conscience of those upon whom the law operates, but by way of protection, to those who desire and are entitled to the day. The necessity and value of the Sabbath is acknowledged by those not professing Christianity. * * * As a civil institution the selection of a day is at the option of the Legislature;"but for a Christian people it is highly fit and proper that the day observed should be that which is regarded as the Christian Sabbath.”
To the same effect is the rule laid down by the Supreme Court of Pennsylvania in Commonwealth v. Wolf, 3 Serg. & R. 47; Specht v. Commonwealth, 8 Barr, 312, in which it is said: “But it is argued with apparent conviction of its truth, that to compel men to refrain from labor, solely from regard to the imputed holiness of a particular day, is within the meaning of the Constitution ‘to control’ the religious observance and to ‘interfere’ with and constrain the consciences of those who honestly disbelieve the asserted sanctity of the selected day. We can not assent to this. So long as no at
In the State of Ohio a Sunday law has been upheld, not on account of the holiness or sanctity of any particular day upon which cessation from secular employments may be required, but as a municipal or police regulation, which it is competent for the Legislature to make. In that State they repudiate the doctrine that Christianity is a part of the common law of Ohio, but the Court concedes that Christianity is a part of the common law of England. (Bloom v. Richards, 2 Ohio St. 387.)
In Indiana a Sunday law has been held constitutional and valid. In Voglesong v. The State, 9 Ind. 112, the Court says: “ The constitutionality of the Sunday Act we shall not discuss; though the counsel in this case has presented a very learned argument against its validity. The question can hardly be considered as an open one. The grounds upon which such acts are sustained have been thoroughly examined, and are generally admitted to be substantial. This Court has acted upon them as such. (Reynolds v. Stevenson, 4 Ind. 619.)”
The same rule has been laid down in the very recent case of Kurtz v. The People, 33 Mich. 280.
The foregoing citation of authorities is sufficient to show very clearly and conclusively that Sunday laws have received
Our Sunday law was passed on the 10th day of April, 1858. It was entitled “An Act to provide for the better observance of the Sabbath,” and for all the purposes of the case now in hand may be considered substantially the same as the act now in force, the validity of which is attacked in this proceeding. Very soon after the passage of the act its constitutionality was assailed in the case of Ex parte Newman, 9 Cal. 502, and by a majority of the three Judges at that time constituting the Supreme Court the act was held unconstitutional. Field, Justice, dissented, however, and the decision in the Newman case was not permitted long to remain the law of the State. In the case of Ex parte Andrews, 18 id. 679, which was decided at the July term, 1861, the same question was presented to the Supreme Court, and the act of 1858 was declared constitutional by the concurrent opinions of all the Judges. The dissenting opinion of Mr. Justice Field in the case of Ex parte Newman was adopted, as fully and correctly defining the views of the Judges then constituting the Court. The question came before the Court again in Ex parte Bird, 19 id. 130, and the Sunday Law was again declared constitutional and the Andrews case affirmed.
It will thus be seen that the departure from the line of authority was of short duration, and that the highest Court of this State, at an early day in our history, returned to the well-beaten track of judicial authority on this interesting and frequently discussed question. It is too late now to indulge in another departure, even if I were inclined to set aside the great weight of judicial opinions by which Sunday laws have been sustained and enforced. But I feel no such inclination. My views are fully in accord with those expressed by other Judges, and regarding the matter from a purely secular standpoint, the law is a proper and salutary one. It imposes no restraint upon the conscience of any member of the community; it exacts from no person the performance of any religious rites or ceremonies; it prescribes no religious faith or belief; a man may be an Episcopalian, a Methodist, a Cath
I have examined the questions involved in this case at some length because they are important, and because there are many other cases similar in their nature, which may possibly be determined by the views herein expressed. My conclusion is, that there is nothing in the so-called “ Sunday Law” which in any manner interferes with the “ free exercise and enjoyment of religious profession and worship” secured to all men by section 4, article i, of the Constitution.
Writ dismissed and petitioner remanded.