2 W. Va. 371 | W. Va. | 1868
The interpretation of the statute under consideration induces a review of the legislation on the
The first act was passed by the general assembly in 1623, and declares:
“That whosoever shall absent himself from divine service any Sunday, without an allowable excuse, shall forfeit a pound of tobacco, and he that absenteth himselfe a month shall forfeit fifty pounds of tobacco.’3 1 Henning’s Statute at Large, 123.
The next act was passed by the general assembly, 1629: “Aact VIII, It is ordered that there bee an especiall care taken by all commanders and others that the people doe re~ paire to their churches on the Sabbath, day, and to see that the penalty of one pound of tobacco for every time of absence and fifty pounds for eveiy mouths absence sett down© in the act of the general assembly, 1623, be levyed and the delinquents to pay the same, as alsoe to see that the Sabbath day be not ordinarily profaned by working in any imploy-ments or by journeying from place to place.” 1 Hen. Stat. at Large, 144.
The next act was passed by the grand assembly at James city, 1642:
“Aact I. In the first place, Be it enacted for the advancement of God’s glorie and the weale jmblique.,” &c.
“Itt, That there be an oath administered to the church wardens that they deliver in a true presentment in writing of such misdemeanors as to their knowledge have been committed the year before, whilst they have been church 'wardens, namely, swearing, prophaning God’s name and his holy Sabbathes, abusing his holy word and commandments, contemning his holy sacraments, or anything belonging to His service or worship.” 1 Hen. Stat. at Large, 240.
The next act was passed at the same session, 1642:
“Act XXXV. Be it also enacted and confirmed, for the better observation of the Sabbath, that noe person or persons shall take a voyage vpon the same, except it be to church or for other causes of extreme necessitie vpon the penal tie of*382 the forfeiture for sueb offense of twenty pounds of tobacco, being justly convicted for the same.”
“ Be it further enacted and confirmed, for the better observation of the Sabbath, and for the restraint of divers abuses committed in the collony by vnlawful shooting on the Sabbath day as aforesaid, vnles it shall be for the safety of his or their plantations or corn fields or for defence against Indians, he or they so offending shall forfeit for his or their first offence being thereof lawfully convicted, if he be a freeman, the quantity of twenty pounds of tobacco, and if a servant to be punished at the discretion of his master; and if masters of any such servants be remisse and negligent in the punishment of his servant for the offense aforesaid, he shall be liable to the forfeiture of twenty pounds of tobacco, being justly convicted for the same.” 1 Hen. Stat. at Large, 261.
. The next act was passed 1657, viz:
“Act 111. The Sabbath to bee kept holy. That the Lord’s day be kept holy, and that no journeys be made except in case of emergent necessitie on that day; that no goods laden in boates nor shooting in gunns or the like tending to the prophanation of that day, which duty is to be taken care of by the ministers and officers of the sevefall churches, and by the commissioners in their places, and the partie delinquent to pay one hundred pounds of tobacco or layd in the stocks, and to take care that servants and others do repaire to their several churches everie Lord’s day.” 1 Hen. Stat. at Large, 434.
The next act was passed at the same session, 1657, viz:
“Act LIL No arrest on Sabbath dayes. Whereas it hath been the frequent practice of sheriffs and officers for their pwne ease and benefittto repaire to the churches on Sabbath dayes and other publique meetings on purpose to serve executions, warrants and other writts, by which means many times those duties are neglected by such who are in danger of arrests. It is therefore ordered, and bee it enacted by this present grand assembly, that no officer or officers shall from henceforth execute any writt or warrants vpon any person or per*383 sons in time of exercise or muster for that day nor on the Sabbath clay.” 1 Hen. Stat. at Large, 457.
The next act was passed 1661, viz :
“Act IX. Sundays not to be profaned. That the Lord’s day be kept holy, and that noe journeys be made on that day except in case of emergent necessity; and that noe other thing be used or done that may tend to the prophanation of that day. But that all and every person inhabiting in this country having noe lawful excuse to be absent shall upon every Sunday and the fower holy days hereafter mentioned, diligently resort to their parish church or chapell accustomed then and there to abide orderly and soberly during the time of common prayers, preaching, or other service of God, upon penalty of being fined fifty pounds of tobacco by the county court upon presentment made by the church wardens who are to collect the same with the parish levies. Provided always, that this act include not Quakers or other recusants who out of non-conformitie to the church totally absent themselves, but they shall be lyable to such fines and punishments as by the statute of 23d of Elizabeth are imposed on them, being for every months absence twenty pounds sterling, and if they forbeare a twelve mouth then to give good security for their good behavior, besides their payments for their monthly absences, according to the tenor of the said statute; and that all Quakers for assembling in tinlawfu.il assemblyes and conventicles be fined and pay each of them there taken, two hundred pounds of tobacco for each time they shall be for such unlawfull meeting taken or by the church wardens to the county court, and in ease of the insolvency of any person among them, the more able then taken to pay for them, one-half to the informer and the other halfe to the publique.” 2 Hen. Stat. at Large, 48.
The next act was passed 1691, viz :
“ActNI. An act for the more effectual suppressing the severall sins and offences of swearing, cursing, profaining God’s holy name, Sabbath abuseing, drunkenness, ffornication and adultery.
*384 “Whereas, notwithstanding the many good laws before this time made and still in force, prohibiting swearing, cursing, pro-phaneing God’s holy name, Sabbath abuseing, fornication, and adultery,” &c. “And as the said acts and statutes were, at the time of making them, thought to be very good and ben-efician to the commonwealth, (as all of them yet are), so as if the substance of as many of the said lawes, as are necessary to be continued, shall be dejested and reduced into one sole law and statute,and in the same a method prescribed for the punishment of offenders with an account of what penalties the offenders therein shall incur, there is good hope that it will come to pass that the same law, being duly executed, will suppress the aforementioned vices, reforme our lives, and be a means that the blessings of Almightly God be showered down upon us; forasmuch, therefore, as all swearing, cursing and prophaning God’s holy name, is forbidden by the word of God, Be it enacted, gc., that no person or persons whatsoever shall from henceforth swear, curse or prophaine God’s holy name, and if any person or persons shall offend herein, and shall thereof be convicted by the oath of two witnesses or by confession of the party, then every such offender shall for every time soe offending, forfeit and pay the sum of one shilling; and for as much as nothing is more acceptable to God than the true and sincere service and worship of him according to his holy will, and that the holy keeping of the Lord’s day is a principall part of the true service of God, which in very many places of this dominion hath been, and is now prophained and neglected by a disorderly sort of people, Bee it enacted, ¿<c., that there shall be no meetings, assemblies, or concourse of people out of their own parishes on the Lord’s day, and that no person or persons whatsoever shall travel 1 upon the said day, and that no other thing or matter whatsoever be done on that day which tends to the prophanation of the same, but that the same be kept holy in all respects, upon pain that every person and persons so offending and being convicted as aforesaid shall loose and forfeit twenty shillings,” &e. 3 Hen. Stat. at Large, 71-2.
The next act was passed at the same session, 1705, of which, viz:
“VI. And to the end that the Lord’s day, commonly called Sunday, may be kept holy.
VIL Be it enacted,” &c., “That if any person, being of the age of twenty-one years or upwards, shall wilfully absent him or herself from divine service at his or her parish church or chapel, the space of one month, (excepting as is excepted in an act of parliament passed in the first year of King William and Queen Mary, intituled, an act for exempting their majesty’s protestan! subjects dissenting from the church of England, from the penalties of certain laws;) and shall not, when there in a decent and orderly manner continue, till the said service is ended; and if any person shall, on that day, be present at any disorderly meeting, gaming, or tippling, or shall, on the said day, make any journey and travel upon the road, except to and from church, (cases of necessity and charity excepted), or shall on the said day, be found working in their corn or tobacco, or any other labour of their ordinary calling, other than is necessary for the sustenance of man and beast; every person failing or making default in any of the premises, and being lawfully convicted by confession or otherwise before one or more justice or justices of the peace of the county wherein such offence shall be committed, (so that prosecution be made within two months after such default,) shall forfeit and pay for every such offense the sum of five shillings or fifty pounds of tobacco. And if any person or persons herein offending shall refuse to make present payment, or give sufficient caution for the paiment of the fine at the laying of the next parish levy after such offense committed, each party so offending, and not paying or giving security as aforesaid,*386 shall, by order of such justice or justices before whom such conviction shall be, receive on his or her bare back ten lashes well laid on.” 8 Hen. Stat. at Large, 360.
The next act was passed 1786, viz :
“An act for punishing disturbers of religious worship and Sabbath breakers.”
Wherein it was enacted among other things, “If any person on the Sabbath day shall himself, be found laboring at his own, or any other trade or calling, or shall employ his apprentices, servants or slaves in labour or other business, except it be in the ordinary household offices of daily necessity or other work of necessity or charity, he shall forfeit the sum of ten shillings for every such offense, deeming every apprentice, servant or slave so employed and every day he shall be so employed as constituting a distinct of-fence.” 12 Hen. Stat. at Large, 336-7.
The next act is the revisal of 1792, which only substitutes in the act of 1786, the indefinite article (a) for the definite article (the) before the word Sabbath in the first line as above quoted, and further changes the fine from shillings to dollars and cents, and with these verbal modifications re-enacts the act of 1786. Rev. Code of 1792, chap. 138, sec. 5, p. 390.
The next act was the revisal of 1819, which re-enacted, verbatim, the law of 1792. 1 Rev. Code of 1819, chap. 141, sec. 5, page 555.
The next act was the revisal of 1847 and 1849, viz:
“16. If a free person, on the Sabbath day, be found laboring at any trade or calling, or employ his apprentices, servants or slaves in labor or other business, except in household or other work of necessity or charity, he shall forfeit two dollars for each offence; every day any,servant, apprentice, or slave is so employed, constituting 'a distinct offence.”
“17. No forfeiture shall be incurred, under the preceding section, for the transportation on Sunday of the mail, or of passengers and their baggage. ..-And the said forfeiture shall not be incurred by any person who conscientiously believes that the seventh day of the week ought to be observed as a Sabbath, and actually refrains from all secular business and*387 labor on that day, provided he does not compel a slave, apprentice or servant, not of his belief, to do secular work or business on Sunday, and does not on that day disturb any bther person.” Code of 1860, chap. 196, sec. 16 and 17, page 804.
And so the law stands, except as the abolition of slavery may modify its operation as respects free and slave.
A review of this legislation on the subject of the Sabbath, is a sufficient refutation of the idea that the Sabbath is not a holy day of rest and worship of God, as well in the eye of the civil law as of the divine law; and it is equally clear that the Sabbath so recognized and its profanation punished by the legislation reviewed is the Christian Sabbath and not the Jewish Sabbath. 1 Rob. Prac. (new); 8 John.. 297; 11 Serg. & Rawle, 400; 2 Strobart, 524, and 6 Gill & J., 274. God having created the world in six days rested the seventh and blessed or sanctified it. Gen. 2; 2, 3.
The re-enactment of the Sabbath on Mount Sinai among the commandments of the moral law was designed not for the Jews alone, but for all who should receive the word of God, and ultimately for mankind. Christ and his apostles never speak of the decalogue but as of permanent and universal obligation. “ The Sabbath was made for man.” The fourth commandment is as binding as the third and fifth. The chief obligation expressed in the divine law is to sanctify it. Ex. 20; 8; Deut.*5; 12. “Remember the Sabbath day to sanctify it.” It is sanctified by works of charity, by prayers, praises and thanksgivings, by the public and private worship of God, by tranquility of mind and by meditation on moral and religious truth in its bearing on the duties of life and the hope of immortality. The other requirement is rest: “ Thou shalt not do any work,” &c. The ordinary business of life is to be laid aside for the sake of bodily and mental health, and chiefly to secure the quiet and uninterrupted employment of the sacred hours for religious purposes. The spirit of the moral law forbids such uses of the Sabbath day as are worldly, such as amusements, journeying, business, &c., purely secular.
The early Christian fathers refer to the first day of the week as the time set apart for worship, and to the transfer of the day on account of the resurrection of the Saviour.
Pliny the younger, pro-consul of Pontus, near the close of the first century, in a letter to the emperor Trajan, remarks that the Christians were “accustomed on a stated day to meet together before daylight, and to repeat a hymn to Christ as God, and to bind themselves by a solemn bond not to commit any wickedness,” &c.
Sunday is observed by Christians all over the world as the Sabbath of the Lord, and is likewise so recognized by all Christian nations, and especially have we seen it so regarded in our own legislation, that has been the subject of review. It is as muek a part of the common law, independent of the statute, that the courts shall not sit on Sunday, as it is that witnesses, jurors and others shall be sworn on the Holy Evangelists of Almighty God. The Sabbath and marriage are institutions of Divine origin, and older than the governments that recognize and regulate their observance.
It is a violation of the moral law to engage in wordly business on the Sabbath and therefore immoi'al.
It is a mistake to suppose that the expression “found laboring” as used in the statute must be understood as requiring severe physical toil, painful exertion producing weariness, fatigue, exhaustion, or such like. In the act of 1705, the expression was, “fovnd working,” ¿-c. In the act of 1691, the expression was, that nothing “be done,” ¿•c. And in the act of 1629, the expression was, “ be not prophaned by working in any employment,” §e. Working and laboring are convertible terms and mean the same thing. In this connection they mean simply being employed or engaged at, &e.t
Bayly, justice, in delivering the opinion of the court, Finnell vs. Ridler, 5 Barn. & Cres., 406, said, “The spirit of the act, [29 Car. 1, C. 7,] is to advance the interests of religion, to turn a man’s thoughts from his worldly concerns, and to direct them to the duties of piety and religion; and the act cannot be construed according to its spirit unless it is to be so construed as to check the career of worldly traflic. And it seems to us that every species of labor, business, or work, whether public or private, in the ordinary calling of a tradesman, artificer, workman, laborer or other person, is within the prohibition of this statute.”
In the act of 1705, the expression is “working in their corn or tobacco, or any other labor of their ordinary calling,” &c. In the present statute the expression is “laboring at any trade or calling.” The latter statute is clearly more comprehensive in the expressions quoted than the former. To be within the former statute the working must have been done in some “labor of an ordinary calling” and not an extraordinary one, it must also have been in the party’s own calling and not in some other; but it is within the latter statute, if done in any trade or calling, whether ordinary or extraordinary, and whether in the party’s own or any other calling.
It is supposed that calling, as used in the statute, does not comprehend business and other secular labor, but calling means employment and business means employment. See Webster and Walker.
Here the party is himself to refrain from “ all secular business and labor” and he is not to compel others to do “ secular 'work or business ” It would be unreasonable and unjust to require the excepted party in the 17th section to refrain from, more than was prohibited to others in the 16th section. The two sections are in pa¡ri materia, and must be construed and considered together. And the only consistent, sensible, and effective construction that can be given to them is that the prohibition is of all employment in secular work, labor, business, trade or calling on the Sabbath, except as therein excepted.
Thus the statute is uniform, consistent and operative to the same extent upon all, and effective to repress the evil complained of.
The plaintiff, Watson, was a merchant, a trader in goods, and had a store. He had a debt on two men for which he had sued them and attached the property of one of them; to secure that debt he agreed with the defendant, Raines,
The statute of Kentucky provides that, “Ko work or business shall be done or performed on the Sabbath day, unless the ordinary household offices of daily necessity, or other Avork of necessity or charity; and if any person on the Sabbath day shall himself be found at his own or any other trade or calling; or shall employ his apprentices, servants or slaves, or other persons bond or free in labor or other business, whether the same be for profit or amusement, unless such as is permitted above, he shall be fined two dollars for each offence. Rev. Stat., p. 265.
Under this statute it was held by the court of appeals of Kentucky that, “a promise of which the whole or a part of the consideration was the performance of work on the Sabbath cannot be enforced. Slade vs. Arnold, 14 B, Monroe, Ky., 287. It was also held a violation of the statute to swap horses on the Sabbath day, and therefore an action founded on a warranty of soundness in the transaction not maintain
In Wisconsin it has been held that a note and agreement of indemnity to a surety, both made on Sunday, are alike invalid, and a recovery on the former can give no efficiency to the latter. Hill vs. Sherwood, 3 Wis., 343.
In Hew Hampshire the statute prohibited any person from doing or exercising any labor or business, or work of his secular calling upon the Lord’s day, under a penalty, &c. H. II. Laws of 1830, 167. But by Rev. Stat., chap. 118, sec. 1, “The work, labor or business of the person’s secular calling shall not be done to the disturbance of others upon the Lord’s day.” In that State contracts made on the Lord’s day are held void or at least incapable of enforcement in the courts. Frost vs. Hall, 4 N. H., 154. Shaw vs. Dodge, 5 N. H., 462. Clough vs. Davis, 9 N. H., 500. Varney vs. French, 19 N. H., 233. Clough vs. Shepherd, 31 N. H., 490. Allen vs. Deming, 14 N. H., 133. Lewis vs. Welch, 14 N. H., 294. Smith vs. Bean, 15 H. H., 577. Woodman vs. Hubbard, 25 N. H., 67. Smith vs. Foster, 41 N. H., 215.
By the statute of Alabama “no worldly business or employment, ordinary or servile work, (works of necessity or charity excepted,) nor shooting, sporting, hunting, gaming, racing, fiddling, or other music for the sake of merriment, nor any kind of playing done, performed or practiced by any person on the Christian Sabbath,” under penalty of two dollars, &c., cited in 5 Ala. Rep., 467. And in Alabama it has been held that a promise made on Sunday was void and could not be enforced in the courts. Hussey vs. Roquemure, 27 Ala., 281. Saltmarsh vs. Tuthill, 13 Ala., 390. Hudson vs. Harris, 10 Ala., 566. O’Donnell vs. Sweeny, 5 Ala. 467. In the case last above mentioned, Ormond, J., delivering the opinion of the court, said: “It is a settled principle of the common law, that all contracts which are founded on an act prohibited by a statute under a penalty are void, although not expressly declared to be so. Wilson vs. Spencer, 1 Rand., 76. Comyn on Con., 26. Collins vs. Blanton, 2 Wilson, 341. Drury vs. Defontaine, 1 Taunt., 135.” “It would, indeed, seem a strange anomaly if a contract, made in violation of a
By the statute of Maine, chap. 160, sec..26, it is provided that, “any person who shall do any work, labor or business, (works of necessity or charity excepted) on the Lord’s day,” shall be punishable by fine.
In Maine, held that a contract made on the Lord’s day is void. Towle vs. Larrabee, 26 Maine, 464, also same principle Nason vs. Dinsmore, 34 Maine, 391, (in 1852). Morton vs. Gloster, 46 Maine, 520.
The Pennsylvania statute of 1794, inflicted a penalty of four dollars for “performing worldly employment on the Lord’s day,” and was held to be violated by driving a public conveyance for hire on Sunday. Comth vs. Jeandell, 2 Grant’s cases, 506. The court says: “The Christian Sabbath is a civil institution older than our Government, and respected as a day of rest by our Constitution; and the regulation of its observance as a civil institution has always been considered to be, and is within the power of the legislature, as much as any other regulations and laws having for their object the preservation of good morals and the peace and good order of society.”
Contracts on Sunday are not to be enforced in Pennsylvania. Hadley vs. Snevily, 1 Watts & Sergt., 477. Hepner vs. Keefer, 6 Watts, 231. Berrill vs. Smith, Miles’ Pa. Rep’ts of Dist. ct., Phila. Haydock vs. Tracy, 3 Watts & Sergt., 507. Morgan vs. Richards, 1 vol. Brown’s Pa. Reports, 171. Carr vs. Kending, Pa. M. Rep., vol. 2, p. 449. Shuman vs. Shuman, 27 Pa. S. Rep’ts, 90.
See also the same doctrine in Connecticut. Fox vs. Abel, 2 Connecticut Rep’ts, 541, and Phalen vs. Clark, 19 Conn. Rep’ts, 421, 1 Root 474.
In Vermont the same doctrine has been held, and no recovery can be had on a contract made on Sunday. Lovejoy vs. Whipple, 18 Vt., 379. Adams vs. Gray, 19 Vt., 358.
In Massachusetts a recovery can not be bad in court on a contract made on Sunday. Pattee vs. Greely, 13 Metcalf, 284. Gregg vs. Wyman, 4 Cushing, 322. Merriam vs. Stearns, 10 Cushing, 257; and Bustin vs. - 11 Cushing, 346. Way vs. Foster, 1 Allen, Mass., 408. Habel vs. Stratton, 5 Cushing, 539.
The cases of Greer vs. Putnam, 10 Mass., 312; and Clapp vs. Smith, 16 Pickering, 247, contra, are not considered as law in Massachusetts, as will be seen by the authorities above cited. So also the case of Boynton vs. Paige, 13 Wend. See opinion of court by Sargent, J., in the case of Smith vs. Foster, 41 N. H., 215; and to the same point see Morton vs. Gloster, 46 Maine, 520; and Way vs. Foster, 1 Allen (Mass.) 408.
In Ohio it has been held that a contract made in the course of business on Sunday was void and no action can be sustained to recover damages for breach of it. Sellers vs. Dugan.
In conflict with the authorities referred to, and the doctrine settled by them, are the cases of Ray vs. Catlett, 12 B. Monroe, 533; and Bloom vs. Richards, 2 Ohio State Rep’ts, 387. They cannot be considered as settling the law-^-diflerently from the numerous decisions before and since above referred to — and it would bo giving to those two cases an undue weight to suppose that they could even unsettle the law on the subject.
In New York it was held that a contract made in Connecticut, within the prohibition of the Connecticut statute, was void and could not he enforced in the courts of New York. Northrup vs. Foot, 14 Wend., 248. Also that a notice cannot be served on Sunday, 20 John., 140. (See also 19 Barb., 581; and 1 Hill, 76, N. Y.)
The English statute of 29, Car. 2, chap. 7, sec. 1, enacts that “no tradesman, artificer, workman, labourer or other person whatsoever, shall do or exercise any worldly labour,
Under this act, held, a contract made on Sunday can not .be enforced. Finnell vs. Ridler, 5 Barn. & Cress, 406. 11 Eng. Com. Law Rep., 261. Smith vs. Sparrow, 4 Bing., 84. 13 Eng. Com. Law, 351. Bloxsome vs. Williams. Beasley vs. Ringold, 5 Barn. & Ald., 335. Williams vs. Paul, 6 Bing. Park, J., in the case of Smith vs. Sparrow, said that he did not think the court was right in the decision of Drury vs. Defontaine.
It is claimed that these Sunday acts must be construed strictly; but Best, C. J., commending the opinion of Bayley, J., in Finnell vs. Ridler, said, “ in one of the most able judgments ever delivered, he (Bayley) says the most liberal construction must be put on the statute, because it is the affirmance of the religion which is the basis of the law, of this country,” and of which Park, J., said he “never read a more luminous judgment.” Smith vs. Sparrow, 4 Bing., 74.
In Finnell vs. Ridler, Bayley, J., said “the act can not be construed according to its spirit unless it is to be so construed 'as to check the career of worldly traffic.”
In Williams vs. Paul, Park, J., said, “I should be sorry to be supposed to recede from the cases decided on this point, and the principle established to enforce the observance of the Lord’s day, which tends so eminently to the advantage of society.”
The same view is taken by Uelson, L, of the policy of the Sunday acts in Northrup vs. Foot, 14 Wend., 248, whei-e he «ays, “it is a remedial statute, and should be liberally construed.” And this opinion and language of Uelson, J., are cited and approved by Allen, J., in delivering the opinion of the court in Smith vs. Wilcox, 24 Yew York Rep’ts. 10 Smith’s Report.
The same principle that a Sunday contract can not be enforced in a court of justice has been repeatedly held in the supreme court of Indiana under the provisions of a statute very similar to our own. Banks vs. Werts, 13 Ind., 203. Link vs. Clemmens, 7 Blackf., 479. Reynolds vs. Stevenson,
It has been said that it did not tend to advance the cause of religion or morality for courts of justice to permit a party to take advantage of his own wrong and thus commit a fraud under the pretense of virtue and a regard for the sanctity of the Sabbath. But this is a very incorrect view of the case. Courts of justice do not lend themselves to aid the .guilty to escape, neither to aid the equally guilty to enforce an illegal contract. Courts simply leave the parties to themselves. If a party makes a conveyance in fraud of his creditors a court of equity would set it aside for the innocent creditors, but would not interfere for the fraudulent grantor, nor would it aid a fraudulent vendee to enforce the execution of a fraudulent contract; but will rather leave all such parties to lie in the bed they have made for themselves, A court of justice cannot aid a guilty party to an illegal contract to enforce its performance without becoming an abettor of the illegal act. The question is not whether the defendant should be allowed to violate his contract, but whether the plaintiff who has violated the law in making the contract shall be assisted to enforce it. When courts undertake to enforce illegal contracts for the guilty parties^ then will a new field.of litigation be opened.
After a careful consideration of the subject and review of the statutes and cases I am led to the conclusion with Bayley, J., in the case of Finnell vs. Ridler, that, “upon principle this statute is entitled to such a construction as will promote the ends for wdiich it was passed, that it applies to private as •well as public conduct, and that the contract by plaintiff was within the mischief intended to be suppressed and within the words made use of to suppress it.”
If any one, who recognizes the obligation of the moral law which forbids Sabbath-breaking, could entertain a doubt of the character of Buch acts, the legislature has not left its opinion and meaning in doubt on that subject, for the section of the statute in all its history and in almost all countries is found in connection with like pi’ohibitions of
I am, therefore, of opinion that the plaintiff cannot maintain the present action which rests solely.on the illegal obligation to pay a debt the defendant did not otherwise owe, and which differs from many of the adjudicated cases in that there is no subsequent new promise or obligation either express or implied, nor conduct, such as the retention and use of property so acquired, from which a subsequent obligation or promise to pay could be raised.
I think, therefore, that the judgment of the circuit court should be reversed, with costs to the plaintiff in error.
But, as the court is divided, the law affirms the judgment.
The material facts in this case briefly stated are these: William H. Watson, surviving partner of himself and J. L. Ayres, deceased, instituted a suit in the circuit court of Jackson county on the 7th of March, 1857, against Thomas Raines and-Kester, a mercantile firm doing business under the name and style of Raines & Blester, to recover the sum of 301 dollars and 68 cents, with interest and cost of protest, being a debt due on a protested promissory note. The plaintiff at the same time caused an attachment to issue from the clerk’s office of said court against the propei’ty of Thomas Raines, one of said firm. While the suit was pending Abraham Raines entered into a written covenant with said Watson, binding himself, heirs, &c., to pay the plaintiff the said debt, in consideration that Watson would release and discharge the attachment, and upon the further provision that Watson was not able to collect the debt from the defendants Raines & Kester. By the terms of the covenant Watson was at liberty either to dismiss the
“16. If a free person on a Sabbath day be found laboring at a trade or calling, or employ his apprentices, servants or slaves in labor or other business, except in household or other work of necessity or charity, he shall forfeit two dollars for each offence; every day any servant, apprentice or slave is so employed constituting a distinct offence.”
“17. No forfeiture shall be incurred under the preceding section for the transportation on Sunday of the mail, or of passengers and their baggage. And the said forfeiture shall not be incurred by auy person who conscientiously believes that the seventh day of the w.eek ought to be observed as a Sabbath, and actually refrains from all secular business and labor on that day; provided he does not compel a slave, apprentice, or servant, not of his belief, to do secular work or business on Sunday, and does not on that day disturb any other person.”
It is claimed by the plaintiff in error that the rulings and judgment of the court below were in contravention of this statute: 1st. Because an act done under a penalty is void; 2nd. That an act done by a party contrary to good morals, or even against the principles of sound policy, cannot bo the foundation of an action in a court of law, and a recovery cannot be had on it.
The 16th section of the statute above cited is the law relied upon as prohibiting the act in question; that is to say if the act of making and executing the covenant by the parties engaged therein constituted a “ laboring at any trade or calling” then these parties incurred a penalty each of two dollars; and it is claimed that such covenant is void because done under a penalty; and void, whether the statute declares it so or not.
Our statute prohibits the buying, selling, and transferring of tickets or chances in any lottery. How a contract made for or about the buying or selling of lottery tickets, or an obligation made in consideration of such tickets would be void, because the statute prohibits the “ matter or thing” about which such a contract is made; it would be void if made on a Sunday, and equally so if made on any other day. Hut the statute imposes a penalty only on a free person found laboring at.any trade or calling on a Sabbath day. Can it be said with propriety that bargain-making, cantract-making, or covenant-making is a “trade or calling” in the common or technical meaning of these words — as contra-
The word “laboring,” as used in the statute., implies something more than one mere physical effort; it imports a continuous bodily'exertion put forth in a trade or calling, such an exercise of muscular strength as brings on fatigue.
It is claimed that this statute should be read disfcributively, so as to make the party liable to the penalty if he be found laboring in any other business as well as at any trade or calling. This is a penal statute and must be construed strictly. Its words are, “if any free person on a Sabbath day be found laboring at any trade or calling, or employ his apprentices, servants, or slaves in labor or other business, except in household or other work of'necessity or charity, he shall forfeit,” &c. The words “other business” seem not to be intended to apply to the person referred to as laboring “ at any trade or calling,” but to relate only to apprentices, servants, or slaves. The manifest object of the law is to prevent the master from requiring apprentices, servants and slaves, (who it is presumed have neither trade nor calling,) from laboring on Sunday in other business than at a “trade or calling” and thus evade the statute with impunity by compelling another to do what would be penal if done by himself. The old statute concerning pretended titles, (R. C. 1819, chap. 103,) imposed a penalty but did not avoid a conveyance, as decided by Roane, Judge, in the case of Tabb vs. Baird, 3 Call, 411. Perhaps a liberal construction ought to be given even to penal statutes, where the object is to prevent a public mischief, and not to claim the penalty. But in cases of clear violation of this statute the penalty imposed is only two dollars. I do not think the legislature intended to superadd a punishment by rendering void a contract made in good faith, even on Sabbath day, involving interests it may be of vast concern, and made under circumstances of great convenience, though falling, perhaps, a little short of necessity. At any rate the law does not declare contracts made on that day to be void, and in the absence of such a declaration it would hardly tend to promote the public morals for courts to enable either party to such a contract to add to his transgression by breaking faith pledged on that day, “and com-
Again, it is claimed that an act is void if done by a party contrary to good morals, or even against the principles of sound policy.
It is not pretended that this act was either immoral or illegal in itself except so far as the doing of it on Sunday made it so. And although done on that day, it was not illegal as has already been shown, for it does not fall within the class of actions embraced by the words “trade” or “calling.” Was the act contrary to good morals because done on Sunday? There are doubtless many Christians who would hold it immoral, because they attach a peculiar sanctity to the -first day of the week; but there are many Christians in our State, whose piety and sincerity none can question, the Seventh-day .Baptists for example, (and some other denominations, I believe,) who attach the same sauctity to the seventh day of the week, and religiously keep Saturday as the Sabbath, and follow their usual avocations on Sunday. I am not dealing with the religious or sectarian feature of the question, but simply with its legal aspect. Our law regards no one day of the week as being more holy than another, but rather all days alike holy. This is evident from the 17th section of the same statute; it provides: “bio forfeiture shall be incurred under the preceding section for the transportation on Sunday of the mail or of passengers and their baggage. And the said forfeiture shall not be incurred by any person who conscientiously believes that the seventh day of the week ought to be observed as Sabbath, and actually refrains from all secular business and labor on that day,” &c. As to the fact whether there is, or is not, divine sanction for the observance of the first day of the week, we are not required to determine; but it is manifest that the legislature did not appoint it as a Sabbath or day of rest because of auy such supposed sanction for its observance; for if they did, it was a daring and impious exercise of leg
Wisdom and experience teach us that man should refrain from labor at least one day in seven, and it is obvious there would be great advantages in having the day of rest fixed at regular periods. To fix such a day and to enjoin cessation from labor thereon is undoubtedly within the scope of legislative authority, whether the day selected bo the first or any other day of the week. The legislature has wisely selected the Christian Sabbath to he observed as a day of rest, not for the purpose ot recognizing that day as being sacred above other days, but because the religious feelings and belief of the majority of our people would lead them to observe and keep it as a day of rest independently ot legislative action. From “principles of sound policy” then, a
Mansfield, Oh. J., held, “we can not discover that the law has gone so far as to say that every contract made on Sunday shall be void, although under these penal statutes to bring this case within the'act we must pronounce that either Drury or Hull worked within their ordinary callings on Sunday. The sale of horses by private contract was not Drury’s
The transportation on a Sunday of passengers and their baggage is not forbidden by the statute. Sunday traveling is not always necessary, though it may sometimes be corn venient or desirable to engage in it. The exempting clauses in the law clearly indicate the intention of the legislature to be to appoint a day of rest, recurring at regular intervals, on which persons shall cease from laboring at their trades or callings. Such labor is attended generally with more or less of noise, is done publicly, and tends to disturb the quiet, repose, and devotion of others, and must cease upon that day, so that all may share in the blessings of rest. If the law-maker deemed the object of the statute secured, even when the transportation of passengers and their baggage is allowed, surely the single act of these parties privately done in a private room is neither a violation of its spirit nor its policy. This act was not passed to compel any religious observance, nor to give preference to any religious doctrine or denominational sect, nor to impose restrictions upon conscience, nor to indicate one day as being paramount in excellence to another. The day to be selected is but a question of expediency, and its establishment a municipal regulation.
The American authorities cited are decisions from the blew England States,Pennsylvania, Michigan, Ohioiand Alabama. The statutes under which these decisions were made are more comprehensive than ours, prohibiting not only labor' at any trade or calling, but any manner of worldly business save acts of necessity or charity.
The case of Sellers vs. Dugan, 18 Ohio Reports, 489, relied on by the plaintiff in error, is overruled in the case of Bloom vs. Richards, Warden’s Ohio Reports, vol. 1, page 387.
I am of opinion, therefore, that the mere making of a contract on Sunday is not prohibited by the statute of this State.
The judgment is affirmed.
Judgment affirmed.