149 Minn. 410 | Minn. | 1921
The defendant was convicted in the municipal court of Minneapolis of keeping open his photographic studio and doing the work of taking pictures therein on the Sabbath day. He appeals from the judgment of conviction and the order denying a new trial.
The relevant provisions of the law are G. S. 1913, §§ 8752, 8753. Section 8752, which is somewhat by way of preamble, prohibits the doing of “certain acts in § 8753 specified, which are serious interruptions of the repose and religious liberty of the community, and the doing of any of said acts on that day shall constitute Sabbath breaking.” Section 8753 provides that “hunting, shooting, fishing, playing, horse racing, gaming and other public sports, exercises, and shows; all noises disturbing the peace of the day; all trades, manufactures and mechanical employments, except works of necessity performed in an orderly manner so as not to interfere with the repose and religious liberty of the community; all public selling or offering for sale of property, and all other labor except works of necessity and charity are prohibited on the S-abbath day.”
It is expressely provided that meals may be served by caterers, and prepared tobacco, fruits, confectionery, newspapers, drugs and medicines may be sold. The sale of uncooked meats, groceries, clothing or boots is not permitted. Works of necessity or charity are defined as including “whatever is needful during the day for good order, health or oomfort of the community.” Bartering is expressly excluded from the definition. Baseball playing, in an orderly manner, not interfering with the peace, repose and comfort of the community, is expressly permitted within certain hours of the afternoon.
The so-called preamble came into the statutes through the penal
There is another aspect in which the Sabbath day observance statute is to be viewed. It is conceded that a periodic idle day, when people cease their usual activities and devote themselves to rest or recreation or amusement or association with their fellows, or give attention to what they deem religious duties or privileges, is 'best for the. physical and moral and social welfare of the community. A statute which fixes a rest day with this thought in mind is enacted in- the exercise of the police power. The foundation principle is well stated in State v. Petit, 74 Minn. 376, 77 N. W. 225, where the provision of the statute prohibiting barbering on the Sabbath was held valid. There Justice Mitchell said [p- 379]:
“The ground upon which such legislation is generally upheld is that it is a sanitary measure, and as such a legitimate exercise of the police power. It proceeds upon the theory, entertained by most of those who have investigated the subject, that the physical, intellectual and moral welfare of mankind requires a periodical day of rest from labor, and, as some particular day must be fixed, the one most naturally selected is that which is regarded as sacred by the greatest number of citizens, and which by custom is generally dedicated to religious worship, or rest and recreation, as this causes the least interference with business or existing customs.”
“The object of the law is not so much to protect those who can rest at pleasure as to afford rest to those who need it, and who, from the conditions of society, could not otherwise obtain it. Moreover, if the law was not obligatory upon all, and those who desired to do so were permitted to engage in their usual vocation on Sunday, others engaged in the same kind of labor or business might, against their wishes, be compelled, by the laws of competition in business, to do likewise.”
The defendant’s studio was on the third floor of a building in Minneapolis. On a Sunday two men, one of whom was the state’s only witness, went to the studio, apparently in quest of evidence. They tried the entrance door. It was locked. The defendant came 'from a side door into the hall. Upon inquiry he said he would take their pictures, though the studio was not supposed to be open. There was a lady present. It does not clearly appear that she was there for a sitting. It seems just as likely that she was there to examine proofs >of pictures taken before. The defendant took the pictures of the two men, giving them several exposures, received pay, and the finished photographs were delivered a few days later.
Whether the taking of the pictures was a trade, manufacture or mechanical employment within the statute need not be discussed. Clearly enough it was work within the statute. It was not menial work. It was skilled work or even artistic work or professional work, but it was work. It is entirely clear that it was not a work of necessity or charity within the definition of the statute.
The conviction .cannot be sustained, if it was necessary to show that the work done by the defendant was of a character interfering with the repose and religious liberty of the community. The taking of the pictures did not disturb the community. The conviction is sustained upon the ground that the prohibition was imposed in the legitimate exercise of the police power. ■ It is a matter of common knowledge that photographic studios in times past and in times quite recent have been open on the whole or a part of each Sunday. In cities of considerable size studios, counting all grades of them, are numerous, and require the attendance of a considerable number of persons. To most of the proprietors their closing is not important if only competitors close. Com
We uphold the conviction of the defendant upon the theory that he is one of a class so numerous that the police power of the state, for the common good of others in a like situation, may prohibit his working on the •Sabbath day, though he does his work without interfering with the repose and religious liberty of the community.
Judgment and order affirmed.