132 N.W. 215 | N.D. | 1911
Chapter 285 of the Laws of the Twelfth Legislative Assembly of the State of North Dakota, introduced as House Bill No. 328, omitting title, reads as follows:—
“Sec. 1. Theaters open on Sunday unlawful. — It shall be unlawful to keep open, or to run, or permit the running of, any theater, show, moving-picture show, or theatrical performance, upon the first day of the week, commonly called the Sabbath.
“See. 2. Penalty. — Any person, firm, or corporation violating any of the provisions of this act shall, upon conviction thereof, be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than $25 or more than $50.
“Sec. 3. Emergency.- — Whereas, there is no express provision of law prohibiting the keeping open or running, or permitting the running of, any theater, show, moving-picture show, or theatrical performance, upon the first day of the week, commonly called the Sabbath, an emergency exists and this act shall take effect and be in force from and after its passage and approval.”
It took effect March 3, 1911. On the 22d day of April, 1911, the relators were convicted in the police court of the city of Bismarck of violating the above law, and on the verdict rendered the police magistrate entered judgment against them, imposing a fine of $50 each,
The early Christians substituted the first day of the week, or Sun
In New York and some other states it has been held that Christianity is a part of the common law of the state, and entitled to recognition and protection by the temporal courts. People v. Ruggles, 8 Johns. 291, 5 Am. Dec. 335; Vidal v. Philadelphia, 2 How. 198, 11 L. ed. 234; Shover v. State, 10 Ark. 259; Sedgw. Stat. & Const. Law, 14. Judge Cooley was of the opinion that, while the religious freedom of the people is protected and defended by the American Constitution, there is no prohibition against the solemn recognition by the authorities of a superintending Providence in public transactions and exercises; and no principle of constitutional law is violated when Thanksgiving Day or fast days are appointed, when chaplains are designated for the Army and Navy, and legislative sessions are opened with prayer, or by the general exemption of houses of religious worship from taxation. In State v. Ambs, 20 Mo. 215, the court said: “We must regard the character and condition of the people for whom our organic law was made. It appeal’s to have been made by Christian men, and shows on its face that the Christian religion was the religion of its framers. The convention that adopted it sat under a Sunday law, adjourning in obedience to it, and in the conclusion of the instrument it is solemnly affirmed by its authors that their signatures were attached thereto
It is in the light of these considerations that such laws must be com strued. Chapter 4 of the Penal Code of this state (Rev. Codes 1905, §§ 8559 — 8584) is the first chapter of that Code in the order of chapters classifying crimes, and is entitled, “Crimes against Religion and Conscience,” and includes definitions of the crimes of blasphemy, profane swearing, obscene language, and Sabbath breaking. If we may judge of the sentiments of the legislature enacting our Penal Code by the order of precedence given the different classes of offenses treated therein, it would seem that they considered this among the most important. They began with crimes against religion and conscience, and followed in the order named with crimes against the elective franchise, against the executive power of the state, against the legislative power, against public justice, etc. Our Penal Code was enacted by the territorial legislature on the 11th day of January, 1865, and the title of this chapter has remained unchanged and no material alterations have been made in its text. When our Constitution was adopted in 1889, article 4, supra, was taken literally from the Constitution of California of 1879, and Ex parte Burke, 59 Cal. 6, 43 Am. Rep. 231, shows the construction of the highest court of California of its provisions prior to its adoption in
The statute in question is not vulnerable to the attacks made upon it, and we hold that its terms bring it within the proper exercise of ■the legislative power. The writ heretofore allowed is quashed. The petitioners are remanded to the custody of the sheriff, with directions that on payment of the fines imposed, or, in lieu thereof, imprisonment as adjudged, they be discharged.