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Subject Area: Law
Topic: The American Revolution and Constitution

§ 68.: Sunday laws.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 68.

Sunday laws.—

The most common form of legal interference in matters of religion is that which requires the observance of Sunday as a holy day. In these days, the legal requirements do not usually extend beyond the compulsory cessation of labor, the maintenance of quiet upon the streets, and the closing of all places of amusements; but the public spirit which calls for a compulsory observance of these regulations is the same which in the colonial days of New England imposed a fine for an unexcused absence from divine worship. Although other reasons have been assigned for the State regulation of the observance of Sunday, in order to escape the constitutional objections that can be raised against it, if it takes the form of a religious institution,1 those who are most active in securing the enforcement of the Sunday laws do so, because of the religious character of the day, and not for any economical reason. While it is not true that the institution of a special day of rest for all men is “a purely religious idea,”2 it is because of the strong influence of the religious idea that there are active supporters of such laws. Whatever economical reasons may be urged in favor of the Sunday laws, requiring the observance of the day as a day of general rest from labor, their influence upon the people would be powerless to secure an enforcement of these laws. The effectiveness of the laws is measured by the influence of the Christian idea of Sunday as a religious institution. “Derived from the Sabbatical institutions of the ancient Hebrew, it has been adopted into all the creeds of succeeding religious sects throughout the civilized world; and whether it be the Friday of the Mohammedan, the Saturday of the Israelite, or the Sunday of the Christian, it is alike fixed in the affections of its followers, beyond the power of eradication, and in most of the States of our confederacy, the aid of the law to enforce its observance has been given under the pretense of a civil, municipal or police regulation.”3

But Sunday, as a religious institution, can receive no legal recognition. It is manifest that the religious liberty of the Jew or the infidel would be violated by a compulsory observance of Sunday as a religious institution. While such a regulation, if it did not extend to a prohibition of the Jew’s religious observance of the seventh day, or to a compulsory attendance upon Christian worship, may not amount to a direct infringement of his religious liberty, he may still reasonably claim that it operates indirectly as a discrimination against his religion, by requiring him to respect Sunday as a day of rest, while his conscience requires of him a like observance of Saturday.1 But the legal establishment of Sunday as a religious institution, would violate the Christian’s religious liberty, as much as that of the Jew. The compulsory observance of a religious institution against conscience is no more a violation of the constitutional limitations than a like compulsion in conformity with one’s religious convictions. “The fact that the Christian voluntarily keeps holy the first day of the week does not authorize the legislature to make that observance compulsory. The legislature cannot compel a citizen to do that which the constitution leaves him free to do, or omit, at his election.”2 We therefore conclude that Sunday laws, so far as they require a religious observance of the day, are unconstitutional, and cannot be enforced. If these laws can be sustained at all, they must be supported by some other unobjectionable reasons.3 But there have been decisions in favor of the compulsory observance of Sunday as a religious institution.1

Notwithstanding the strictly religious aspect the observance of a general day of rest has always assumed among all people, and under all systems of religion; although the observance of such a day has always been taught to be a divine injunction; it is claimed, with much show of reason, that this custom, even as a religious institution, was originally established as a sanitary regulation, designed to procure for the individual that periodical rest from labor, which is so necessary to the recuperation of the exhausted energies; and the religious character was given to it, in order to secure its more universal observance. In the primitive ages of all nations, theology, medicine and law were administered by the same body of men; and it was but natural that they should apply to a much needed sanitary regulation the spiritual influence of theology, and the obligation of law. Under this view of the matter, the observance of a day of rest was, in the order of history, primarily, a sanitary regulation, and secondarily, a religious institution. Under our constitutional limitations, it is only in its primary character that an observance of the law can be exacted.

All sanitary regulations operate directly upon the individual; and from the medical standpoint, their primary object is the benefit to the individual. It is so likewise with the observance of a day of rest. It is the individual which is primarily benefited by the cessation from labor, and the community or society is only remotely and indirectly benefited by the increased vitality of his offspring and possibly relief from the public burden of an early decrepitude, the result of overwork. The failure to observe this law of nature, calling for rest from labor on every seventh day,—for this has been demonstrated by the experience of ages to be a law of nature,—is, like every other inordinate gratification of one’s desires, a vice, and not the subject of law. The possible evil, flowing from this “vice,” will not justify the State authorities in entering the house and premises of a citizen, and there compel him to lay down his tool or his pen, and refrain from labor, on the ground that his unremittent toil will possibly do damage to society through his children. How can it be proved a priori that the man needs the rest that the law requires him to take? He may be fully able to continue his labor, at least during a portion of the Sunday, without doing any damage to anybody.1 Furthermore, it may be shown that he has for special reasons, or because his religion requires it, abstained from labor for the required time on some other day. And having done so from the individual standpoint, he has substantially complied with the requirements of the law.1 Then must the conclusion be reached, that there are no satisfactory grounds upon which Sunday laws can be sustained, and the constitutional objections avoided?

It matters not what is the moving cause, or what amount of gratification is had out of the act, the commission of a trespass upon another’s rights, or the reasonable fear of such a trespass, always constitutes sufficient ground for the exercise of police power. The prevention of a trespass is the invariable purpose of a police regulation. It is the right of every one to enjoy quietly, and without disturbance, his religious liberty, and his right is invaded as much by noise and bustle on his day of rest, varying only in degree, as by a prohibition of religious worship according to one’s convictions. Noisy trades and amusements, and other like disturbances of the otherwise impressive quiet of a Sunday, may therefore be prohibited on that day, in complete conformity with the limitations of police power.2 But the prosecution of noiseless occupations, and the indulgence in quiet, orderly amusements,1 since they involve no violation of private right, cannot be prohibited by law without infringing upon the religious liberty of those who are thus prevented, and such regulations would therefore be unconstitutional. It is barely possible, but doubtful, that a law could be sustained under the principles here advanced, which required that the front doors of stores and places of amusement should be kept closed on Sunday, but not otherwise interfering with the noiseless occupations and diversions. The total prohibition of such employments and labor on Sunday, except possibly for a reason to be suggested and explained later, could only be justified by the religious character of the day, and we have already seen that that aspect of Sunday cannot be taken into account, in framing the Sunday laws.

But there is, perhaps, a constitutional reason why the prohibition of labor on Sunday should be extended to other than noisy trades and employments. The reason calls for the avoidance of an indirectly threatened trespass, rather than the prohibition of a direct invasion of right. In the ideal state of nature, when free agency and independence of the behests of others may be considered factual, the prosecution of a noiseless trade or other occupation could not in any sense be considered as, either constituting a trespass, or threatening one. Each man, being left free to do as he pleased, would then have the equal liberty of joining in the religious observance of the day or of continuing his labor, subject to the single condition, that he must not in doing so disturb the religious worship of others. But we are not living in a state of nature. Whatever the metaphysicians or theologians may tell us about free will, in the complex society of the present age, the individual is a free agent to but a limited degree. He is in the main but the creature of circumstances. Like the shuttle, he may turn to the right or to the left, but the web of human events is woven, unaffected by this freedom of action. Those who most need the cessation from labor are unable to take the necessary rest, if the demands of trade should require their uninterrupted attention to business. And if the law did not interfere, the feverish, intense desire to acquire wealth, so thoroughly a characteristic of the American nation, inciting a relentless rivalry and competition, would ultimately prevent, not only the wage-earners, but likewise the capitalists and employers themselves, from yielding to the warnings of nature, and obeying the instinct of self-preservation by resting periodically from labor, even if the mad pursuit of wealth should not warp their judgment and destroy this instinct. Remove the prohibition of law, and this wholesome sanitary regulation would cease to be observed. No one, if he would, could do so. The prohibition of labor for these reasons may be contradictory of the constitutional affirmation of the equality of all men; and the prohibitory law may be practically unenforcible; but it would be difficult to establish any positive constitutional objection to it.1 It has been urged that this law, when founded upon this reason, of protection to the individual, may be sustained, if it was confined in its operations to slaves, minors, apprentices and others who are required to obey the commands of others, and designed to protect them from the cruelty of incessant toil.1 But the slave or apprentice is no more bound to obey the behests of others, and to work at their command, than the free laborer, clerk, and even the employer himself, under the irresistible force of competition, in the struggle for existence and the accumulation of wealth. “It is no answer to the requirements of the statute that mankind will seek cessation from labor by the natural influences of self-preservation. The position assumes that all men are independent, and at liberty to work whenever they choose. Whether this be true or not in theory, it is false in fact; it is contradicted by every day’s experience. The relation of superior and subordinate, master and servant, principal and clerk, always has and always will exist. Labor is in a great degree dependent on capital, and unless the exercise of power which capital affords is restrained, those who are obliged to labor will not possess the freedom for rest which they would otherwise exercise. Necessities for food and raiment are imperious, and exactions of avarice are not easily satisfied. It is idle to talk of a man’s freedom to rest, when his wife and children are looking to his daily labor for their daily support. The law steps in to restrain the power of capital. Its object is not to protect those who can rest at their pleasure, but to afford rest to those who need it, and who, from the conditions of society, could not otherwise obtain it. * * * The authority for the enactment, I find in the great object of all governments, which is protection. Labor is necessarily imposed by the condition of our race, and to protect labor is the highest office of our laws.”1 For various reasons, laws have been generally sustained, which compel the closing of the stores of business.2 If the reasoning here presented be correct, and the premises into which it has been formulated be impregnable, the following conclusion is inevitable, viz.: that no Sunday law is constitutional which does more than prohibit those acts, which are noisy and are therefore calculated to disturb the quiet and rest of Sunday worshipers, or which in their commission demand or are likely to demand, the services of others, who cannot refuse to serve, on account of the common interdependence of mankind. The doing of any act, which is noiseless and does not require the service of others, cannot be prohibited.

It is not maintained that this limitation upon the power of the State to regulate the observance of Sunday, is recognized and indorsed by the decisions of our courts. On the contrary, there are police regulations in the different States, which are sustained in violation of this rule of limitation. The laws which prohibit quiet and orderly amusements cannot be sustained under the rule, and so also those laws, which make void the commercial paper and deeds which are executed on Sunday. Other instances of existing legislation, contradictory of this rule of limitation, may be cited, but it is not necessary. But although not generally supported by the authorities, it is believed to be the correct rule.

The same reasons, which are here advanced, would likewise support and justify legislation, designed to protect the Jew in his religious observance of Saturday, and the Mohammedan in his enjoyment of Friday. But if the rule were carried to the extreme, of giving equal protection to the enjoyment of the religious days of every sect, the business prosperity of the country would be seriously impaired. Although the Jew and the Mohamedan have the same right to the quiet and undisturbed enjoyment of his holy day, the public welfare, which likewise is the main spring to the Sunday laws, requires that his enjoyment of his religion should sustain the burden and annoyance occasioned by the general prosecution of trades and occupations on their holy days.1 The selection of Sunday, as the day of rest to be observed by all, is not justified by its religious character, although its religious character, in the eyes of the masses of this country, suggests the reason of its selection in preference to some other day. The interference of the State is, after all, for the purpose of promoting the public welfare, for the purpose of securing to society the benefits arising from a general periodical cessation from labor; and that object can be best attained by setting apart as a legal day of rest, that day which is looked upon as a holy day by the vast majority of our people. In some of our States, there are statutory exceptions in favor of those who conscientiously observe some other day of the week as a holy day, and abstain from labor on that day; and in Ohio, it has been held that a statute which did not contain such an exception, was for that reason unconstitutional.1 But in other States, it is held that the Sunday law in its application to the orthodox Jew, was not in violation of the article in the State constitution, which declares that no person shall “upon any pretense whatever be hurt, molested, or restrained in his religious sentiments or persuasions.”2 The restraint upon the right to engage in lawful employment and to do otherwise lawful acts, is reasonable, because necessary to the successful maintenance of a general day of rest.3

While it is claimed that the State cannot go beyond the limitations that have been presented, in enacting laws for the observance of Sunday as a day of rest, it rests with the discretion of the legislature how far the enactment should extend within these limitations, and the scope of the legislation has varied with the public policy in each State. We have already noticed exemptions from the operation of the Sunday laws in favor of the Jew. In some of the States only a person’s ordinary calling is intended to be suppressed;1 and there is an universal exception in favor of works of charity and necessity. But what constitutes charity and necessity is not viewed in the same light in every State. It is a common rule that traveling on Sunday, except in cases of charity or necessity, is unlawful, and any one injured while so doing cannot recover damages.2 But whether a certain act is looked upon as a necessity, will depend largely upon the condition of public sentiment, its mere fitness and propriety being the only standard of right and wrong.1 We must therefore expect to find contradictory conclusions upon this question of necessity. In Pennsylvania it is not considered a work of necessity for a barber to shave his customers on Sunday,2 while in Indiana it is deemed to be a question of fact, to be determined by a jury.3 In some States the running of railroad trains and the operation of street railroads are held to be necessary.4 In other States both have been held to be violations of the Sunday laws.5 The transportation of cattle received on Sunday,6 feeding stock and gathering the necessary feed,7 the gathering of grain which may be injured if left in the field until Monday,8 the expenditure of the labor necessary to prevent waste of sap in making maple sugar,9 have been held to be lawful because they were works of necessity. In other States similar acts were held to be unlawful, on the ground of not being deemed necessary.1

Later decisions are quite numerous, in which the question is asked and answered, what employments are permitted, as being works of necessity or charity, to be pursued on Sunday. Some of these cases are given in the note below.2

CHAPTER VIII.

FREEDOM OF SPEECH AND LIBERTY OF THE PRESS.

[1]See post.

[2]Terry, Ch. J., in Ex parte Newman, 9 Cal. 509.

[3]Opinion of Terry, Ch. J., 9 Cal., p. 509.

[1]Cooley’s Const. Lim. *476.

[2]Burnett, J., in Ex parte Newman, 9 Cal. 510.

[3]“Under the constitution of this State, the legislature cannot pass any act, the legitimate effect of which is forcibly to establish any merely religious truth, or enforce any merely religious observances. The Legislature has no power over such a subject. When therefore a citizen is sought to be compelled by the legislature to do any affirmative religious act or to refrain from doing anything, because it violated simply a religious principle or observance, the act is unconstitutional.” Burnett, J., in Ex parte Newman, 9 Cal. 510. See, also, Com. v. Has, 122 Mass. 40; Com. v. Specht, 8 Pa. St. 312; Com. v. Wolf, 3 Serg. & R. 48; Com. v. Nesbit, 34 Pa. St. 398; Hudson v. Geary, 4 R. I. 485; State v. Balt. & O. R. R., 15 W. Va. 362. (36 Am. Rep. 803); Charleston v. Benjamin, 2 Strobh. 508; McGatrick v. Wason, 4 Ohio St. 566; Johns v. State, 78 Ind. 332; Bohl v. State, 3 Tex. App. 683; State v. Bott, 31 La. Ann. 663 (33 Am. Rep. 224).

[1]Scott, J., in State v. Ambs, 20 Mo. 214, 216, uses this language: “Those who question the constitutionality of our Sunday laws seem to imagine that the constitution is to be regarded as an instrument formed for a State composed of strangers collected from all quarters of the globe, each with a religion of his own, bound by no previous social ties, nor sympathizing in any common reminiscences of the past; that unlike ordinary laws, it is not to be construed in reference to the State and condition of those for whom it was intended, but that the words in which it is comprehended are alone to be regarded without respect to the history of the people for whom it was made. It is apprehended, that such is not the mode by which our organic law is to be interpreted. We must regard the people for whom it was ordained. It appears to have been made by Christian men. The constitution on its face shows that the Christian religion was the religion of its framers. * * * They, then, who engrafted on our constitution the principles of religious freedom contained therein, did not regard the compulsory observance of Sunday, as a day of rest, a violation of those principles. They deemed a statute compelling the observance of Sunday necessary to secure a full enjoyment of the rights of conscience. How could those who conscientiously believe that Sunday is hallowed time, to be devoted to the worship of God, enjoy themselves in its observance amidst all the turmoil and bustle of worldly pursuits, amidst scenes by which the day was desecrated, which they conscientiously believe was holy?” See also, Stover v. State, 10 Ark. 259, 263; Lindenmuller v. People, 33 Barb. 568.

[1]“Again it may be well considered that the amount of rest which would be required by one half of society may be widely disproportionate to that required by the other. It is a matter of which each individual must be permitted to judge for himself according to his own instincts and necessities. As well might the legislature fix the days and hours for work, and enforce their observance by an unbending rule which shall be visited alike upon the weak and strong; whenever such attempts are made, the law-making power leaves its legitimate sphere, and makes an incursion into the realms of physiology, and its enactments like the sumptuary laws of the ancients, which prescribe the mode and texture of people’s clothing, or similar laws which might prescribe and limit our food and drink, must be regarded as an invasion, without reason or necessity, of the natural rights of the citizens, which are guaranteed by the fundamental law.” Terry, Ch. J., Ex parte Newman, 9 Cal. 508.

[1]“It appears to us that if the benefit of the individual is alone to be considered, the argument against the law which he may make, who has already observed the seventh day of the week, is unanswerable.” Cooley’s Const. Lim. *476, *477.

[2]“While I am thus resting on the Sabbath in obedience to law, it is right and reasonable that my rest should not be disturbed by others. Such a disturbance by others of my rest, is in its nature a nuisance, which the law ought to punish, and Sabbath-breaking has been frequently classed with nuisances and punished as such.” State v. B. & O. R. R., 15 W. Va. 362 (36 Am. Rep. 803, 814.)

[1]In New York it has been held in a recent case that a law is constitutional which prohibits fishing on Sunday, even within the grounds of a private club. People v. Moses, 65 Hun, 161; s. c. 140 N. Y. 214. And in Missouri it has been held that athletic sports may be prohibited on Sunday. St. Louis Agricultural & Mechan. Assn. v. Delano, 108 Mo. 217; State v. Williams, 35 Mo. App. 541. In Rucker v. State, 67 Miss. 328, it was held that the law which prohibited playing at cards or dice on Sunday applied only to the doing of these things in public, and did not include such a game played in private. See also Gunn v. State, 89 Ga. 341 (hunting); State v. O’Rourke, 35 Neb. 614 (base ball); State v. Hognever, 152 Ind. 652 (do.). So far as these cases uphold the constitutional right of the legislature to prohibit on Sunday the indulgence in quiet amusements, they can be supported on no other ground than that the State has the power to punish individuals who do not conform to the religious observance of the day.

[1]See post, § 206. The position assumed in the text, in regard to noiseless occupations, has been adopted in several recent cases, in which laws were sustained, as a constitutional exercise of police power, which prohibited barbers from plying their trade on Sunday. People v. Havnor, 149 N. Y. 195 (quoting text); State v. Granneman, 132 Mo. 326; People v. Buttling (N. Y.), 13 Misc. Ref. 587; 35 N. Y. S. 19; People v. Bellett, 99 Mich. 151 (quoting text); Keck v. City of Gainesville, 98 Ga. 423. In Eden v. People, 161 Ill. 296; Nesbit v. State (Kans. App.), 54 P. 326; State v. Petit (Minn.), 77 N. W. 225; Breyer v. State (Tenn. ’99), 50 S. W. 769, a similar law was held to be unconstitutional, not only because it was a special law discriminating against one particular calling, but because it was an unauthorized infringement of the religious liberty of the individual. See, also, to the same effect, Ex parte Jentzsch, 112 Cal. 468, and Ragio v. State, 2 Pickle (Tenn.), 272 (public bath rooms in barber shops).

[1]“The question arising under this act is quite distinguishable from the case where the legislature of a State, in which slavery is tolerated, passes an act for the protection of the slave against the inhumanity of the master in not allowing sufficient rest. In this State, every man is a free agent, competent, and able to protect himself, and no one is bound by law to labor for a particular person. Free agents must be left free as to themselves. Had the act under consideration been confined to infants, or to persons bound by law to obey others, then the question presented would have been very different. But if we cannot trust free agents to regulate their own labor, its time and quantity, it is difficult to trust them to make their own contracts. If the legislature could prescribe the ‘days’ of rest for them, then it would seem that the same power could prescribe hours to work, rest and eat.” Burnett, J., in Ex parte Newman, 9 Cal. 510.

The position, which was assumed by the California courts in the case of Ex parte Newman, and afterwards abandoned in later decisions (see next note) seems to have been completely resumed in the case of Ex parte Jentzch, 112 Cal. 468; in which the Supreme Court declared a law unconstitutional, which prohibited barbers from plying their trade on Sunday. The court in this case repudiate the doctrine set forth in the text, and the dissenting opinion of Justice Field in the case of Ex parte Newman, that the inability without Sunday laws of the employe, to secure the liberty of resting from his labor on Sunday, was a justification of those laws. Legislation on those grounds has too much of the paternal character to be justifiable under our constitutional limitations, and violates the fundamental American principle of the equality of all men before the law. See in Chapter I. an extensive quotation from this decision.

A similar position has been taken in the case of Eden v. People, 161 Ill. 296. In Illinois, the Supreme Court has taken a decided stand against the constitutionality of all laws, which interfere with the individual’s liberty of contract, even denying the constitutionality of a law which prohibited women from working in factories and workshops for more than forty-eight hours per week. In Eden v. People, supra, the court say: “If the legislature has no power to prohibit by law a woman from being employed in a factory or workshop more than eight hours in any one day, or forty-eight hours in a week, upon what principle, it may be asked, has the legislature the right to prohibit a barber from laboring and receiving the fruits of his labor during any number of hours he may desire to work during the week? Moreover, if the merchant, the grocer, the butcher and druggist, and other trades and callings are allowed to open their places of business and carry on their respective avocations during seven days of the week, upon what principle can it be held that a person who may be engaged in the business of barbering may not do the same thing? * * * “As has been heretofore seen, as a general rule a police regulation has reference to the health, comfort, safety and welfare of society. How, it may be asked, is the health, comfort, safety or welfare of society to be injuriously affected by the keeping open a barber shop on Sunday? It is a matter of common observation that the barber business, as carried on in this State, is both quiet and orderly. Indeed, it is shown by the evidence incorporated in the record that the barber business, as conducted, is quiet and orderly, much more so than many other departments of business. In view of the nature of the business, and the manner in which it is carried on, it is difficult to perceive how the rights of any person can be affected, or how the comfort or welfare of society can be disturbed.”

[1]Dissenting opinion of Judge Field in Ex parte Newman, 9 Cal. 502, 518. The opinion of Judge Field although rejected by the majority of the court in Ex parte Newman, was after a change in the personnel of the court adopted as the rule in California in Ex parte Andrews, 18 Cal. 678, and was affirmed in many other later cases, the last being Ex parte Burke, 59 Cal. 6 (43 Am. Rep. 231); Ex parte Roser, 60 Cal. 177. But see in approval of Ex parte Newman, Ex parte Jentzch, 112 Cal. 468, cited fully in a preceding note.

[2]Vogelsang v. State, 9 Ind. 112; Shover v. State, 10 Ark. 259; Warne v. Smith, 8 Conn. 14; Lindenmuller v. People, 33 Barb. 549; Story v. Elliott, 8 Cow. 27; Johnston v. Com., 10 Harris, 102; Bloom v. Richards, 2 Ohio, 387; City Council v. Benjamin, 2 Strobh. 529; State ex rel. Walker v. Judge, 39 La. Ann. 132; State v. Fernandez, 39 La. Ann. 538; Swann v. Swann, 21 Fed. Rep. 299; Commonwealth v. Starr, 144 Mass. 359 (11 N. E. 533, note); Friedeborn v. Commonwealth, 113 Pa. St. 242; Scales v. State, 47 Ark. 476; Judefind v. State, 78 Md. 510; Specht v. Com., 8 Pa. St. 312. In the last case, the court expresses itself thus: “It intermeddles not with the natural and indefeasible right of all men to worship Almighty God according to the dictates of their own consciences; it compels none to attend, erect or support any place of worship, or to maintain any ministry against his consent; it pretends not to control or to interfere with the rights of conscience, and it establishes no preference for any religious establishment or mode of worship. It treats no religious doctrine as paramount in the State; it enforces no unwilling attendance upon the celebration of divine worship. It says not to the Jew or Sabbatarian, ‘You shall desecrate the day, you esteem as holy, and keep sacred to religion that we deem to be so! It enters upon no discussion of the rival claims of the first or seventh days of the week, nor pretends to bind upon the conscience of any man any conclusion upon a subject which each must decide for himself. It intrudes not into the domestic circle to dictate when, where, or to what God its inmates shall address their orisons; nor does it presume to enter the synagogue of the Israelite, or the church of the seventh-day Christian to command or even persuade their attendance in the temples of those who especially approach the altar on Sunday. It does not in the slightest degree infringe upon the Sabbath of any sect, or curtail their freedom of worship. It detracts not one hour from any period of time they may feel bound to devote to this object, nor does it add a moment beyond what they may choose to employ. Its sole mission is to inculcate a temporary weekly cessation from labor, but it adds not to this requirement any obligation.” See, also, Searcy v. State (Tex. Cr. App. ’99), 51 S. W. 1119.

In State v. Southern Ry. Co., 119 N. C. 814, a State law was upheld, which prohibited with certain exceptions, the running of railroad trains on Sunday, even though the law was applied to trains carrying freight across State lines. To the same effect, see Hennington v. State, 90 Ga. 396; State v. Railroad Company, 24 W. Va. 783. See contra as to through or interstate freight, Norfolk & Western Ry. Co. v. Commonwealth, 88 Va. 95. On the general proposition of the constitutionality of laws, prohibiting labor on Sunday, see Ex parte Marx, 86 Va. 40; Ex parte Sundstrom, 25 Tex. App. 133; Johnson v. People (Colo. App.), 40 P. 576; Quinlan v. Conlin, 34 N. Y. S. 952; 13 Misc. 568. In State v. Gelpi, 48 La. Ann. 520, a law was upheld, which required private clubs, in which liquor is sold to members exclusively, to be closed on Sunday. So, also, a State tax on the sale of Sunday issues of newspapers, whether published within or without the State, was held to be constitutional. Preston v. Finley, 72 Fed. 850; Thompson v. State, 17 Tex. App. 253; Baldwin v. State, 21 Tex. App. 591.

[1]In Charleston, S. C., it is said that an ordinance requires all vehicles on Sunday to pass the Jewish synagogues in a slow walk, in order to reduce disturbance of the worship to a minimum. The New York constitution, Art. I., § 3, and the Penal Code, § 271, prohibit the service on Hebrews of any process which is made returnable on Saturday. Martin v. Goldstein, 39 N. Y. S. 254.

[1]Cincinnati v. Rice, 15 Ohio, 225; Canton v. Nist, 9 Ohio St. 439. But one must observe the seventh day as a religious day in order that he may work on Sunday. Liberman v. State, 26 Neb. 464. But in the absence of statute, providing otherwise, the conscientious observance of the seventh day does not excuse the observance of Sunday. Parker v. State, 16 Lea (Tenn.), 476.

[2]Frolickstein v. Mobile, 40 Ala. 725.

[3]“The legislature obviously regarded it as promotive of the mental, moral and physical well-being of men, that they should rest from their labors at stated intervals; and in this all experience shows they were right. If then, rest is to be enjoined as a matter of public policy at stated intervals, it is obvious that public convenience would be much promoted by the community generally resting on the same day, for otherwise each individual would be much annoyed and hindered in finding that those with whom he had business to transact, were resting on the day on which he was working. The legislature, holding these views in selecting the particular day of rest, doubtless selected Sunday, because it was deemed a proper day of rest by a majority of our people who thought it a religious duty to rest on that day; and in selecting this day for these reasons, the legislature acted wisely. The law requires that the day be observed as a day of rest, not because it is a religious duty, but because such observance promotes the physical, mental and moral well-being of the community, and Sunday is selected as the day of rest, because if any other day had been named, it would have imposed unnecessarily onerous obligations on the community, inasmuch as many of them would have rested on Sunday as a religious duty, and the requirement of another day to be observed as a day of rest, would have resulted in two days being observed instead of one, and thus time would have been uselessly wasted. This I conceive is the main object of our law; but it is not its only object.” State v. Balt. & O. R. R. Co., 15 W. Va. 362 (36 Am. Rep. 803, 814). An exemption of this kind was declared unconstitutional in Louisiana, because it discriminated between religious sects. Shreveport v. Levy, 26 La. Ann. 67. But it was held valid in Indiana. Johns v. State, 78 Ind. 332. In Simond’s Exrs. v. Gratz, 2 Pen. & Watts, 412, it was held that it was no ground for a continuance that a Jew had conscientious scruples against attendance at the trial of his cause on Saturday.

[1]Mills v. Williams, 16 S. C. 594, 597; approving Hellams v. Abercrombie, 15 S. C. 110, 113; Bennett v. Brooks, 9 Allen, 118.

[2]Hinckley v. Penobscot, 42 Me. 89; Cratty v. Bangor, 57 Me. 423 (2 Am. Rep. 56); Johnson v. Irasburg, 47 Vt. 28 (19 Am. Rep. 111); Bosworth v. Swansey, 10 Met. 364; Connolly v. Boston, 117 Mass. 64 (19 Am. Rep. 396); Davis v. Somerville, 128 Mass. 594; Buck v. Biddeford, 82 Me. 433; Dougan v. State, 125 Ind. 130; Dorsey v. State, 125 Ind. 600. Traveling for pleasure in street cars now allowable in Connecticut. Horton v. Norwalk Tramway Co., 66 Conn. 272.

[1]See Davis v. Somerville, 128 Mass. 594; McClary v. Lowell, 44 Vt. 116 (8 Am. Rep. 366); Logan v. Matthews, 6 Pa. St. 417; Johnson v. People, 31 Ill. 469.

[2]Com. v. Jacobus, 1 Leg. Gaz. Rep. (Pa.) 491; State v. Schuler, 23 Wkly. Law Bul. 450; Commonwealth v. Waldman, 140 Pa. St. 89; State v. Wellott, 54 Mo. App. 310.

[3]Ungericht v. State, 119 Ind. 379.

[4]Com. v. Louisville & Nashville R. R. Co., 80 Ky. 291; Louisville & Nash. Ry. Co. v. Commonwealth (Ky.), 30 S. W. 878; Augusta & S. R. R. Co. v. Renz, 55 Ga. 126; Sullivan v. Maine Central Ry. Co., 82 Me. 196. See Jackson v. State, 88 Ga. 787.

[5]Sparhawk v. Union Passenger R. Co., 54 Pa. St. 401; Com. v. Jeandell, 2 Grant Cas. 506; McNeely v. State, 94 Ga. 592.

[6]Phil. & B. R. R. Co. v. Lehman, 56 Md. 209.

[7]Edgerton v. State, 69 Ind. 588.

[8]Turner v. State, 67 Ind. 595; Johnson v. People, 42 Ill. App. 594.

[9]Whitcomb v. Gilman, 35 Vt. 497. See Commonwealth v. Funk, 9 Pa. Co. Ct. Rep. 277, as to when it is necessary to work on Sunday to prevent a water overflow in oil-wells. To the same effect see Com. v. Gillespie, 146 Pa. St. 546.

[1]State v. Goff, 20 Ark. 289; Jones v. Andrews, 10 Allen, 18.

[2]Thus, a druggist is not allowed to sell soda water and other beverages. Splane v. Commonwealth (Pa.), 12 A. 431; Quinlan v. Conlin, 34 N. Y. S. 952; 13 Misc. 568. The continued operation on Sunday of an ice factory was held to be a work of necessity, as the stopping of the factory on Sunday would mean a loss of 24 to 30 hours on Monday in getting the factory in working order again. Hennersdorf v. State, 25 Tex. App. 597. The same ruling would apply to glass and other factories, where so much time is required in attaining the degree of temperature, high or low, which is needed in operating the factory. But not to the repair of a mill. Hamilton v. Austin, 62 N. H. 575. It is a work of necessity to shoe a stage horse. Nelson v. State, 25 Tex. App. 599. It is not a work of necessity to publish or sell a newspaper on Sunday. Handy v. St. Paul Globe Pub. Co., 41 Minn. 188; Commonwealth v. Matthews, 152 Pa. St. 166; Com. v. Suppert, 152 Pa. St. 169. So, likewise, the sale of cigars and tobacco. Commonwealth v. Marzynski, 149 Mass. 68; State v. Ohmer, 34 Mo. App. 115. It is a work of charity to subscribe on Sunday a sum of money for the liquidation of a church debt. Bryan v. Watson, 127 Ind. 42. So, also, telegraphic messages to members of one family, communicating important information, are works of necessity. Burnett v. West, Un. Tel. Co., 39 Mo. App. 599; West Un. Tel. Co. v. Wilson, 93 Ala. 32; West. Un. Tel. Co. v. Griffin, 1 Ind. App. 46.