State v. O'Rourk.

It may be true that the professed followers of Christ are not, in all cases, as unselfish as they should be, or as is their right and privilege, but progress is being made in that direction and many examples of self-denial and unselfishness may be found. Let a cry of distress and a call for help come from any part of the world by reason of some great calamity, and the Christian nations at once respond by liberal contributions and other means to relieve the distress. Schools and colleges are liberally provided and patronized, and education is general. Hospitals and asylums exist on every hand for the poor, the insane, the blind, deaf, and unfortunate, while punishments for offenses are graduated in proportion to the offense, and a conviction can only take place after a fair public trial upon specific charges, and death is imposed in no case except murder or treason. No fair-minded student of history will deny that these benefits and liberty itself flow from Christianity. It appeals alone to reason and asks for adoption because of its excellence. It makes no person the keeper of another's conscience, but requires every one to judge and act for himself. It tolerates the utmost freedom of opinion and worship, and seeks to coerce no one except by the force of rea

son.

But while allowing the force of reason to be the sole guide in the adoption or rejection of Christianity, its followers have been impelled from duty to combat wrong and oppression on every hand. These were strongly intrenched in the selfishness, covetousness, and other vices of the race, so that they have yielded slowly, but they have been gradually dispelled like clouds after a storm, so that the sun shines almost clearly, and without obstruction. This result has been brought about by almost constant effort, and has cost the lives of hundreds of thousands of martyrs and patriots, and it can only be preserved by constant vigilance.

As a Christian people, therefore, jealous of their liberty and desiring to preserve the same, the state has enacted

State v. O'Rourk.

certain statutes, which, among other things, in effect, recognize the fourth commandment, and the Christian religion and the binding force of the teachings of the Saviour. Among these is the statute which prohibits sporting, hunting, etc., on Sunday.

The human body, considered as a machine, is the most perfect mechanism of which we have any knowledge. If properly cared for and treated, it will, in ordinary cases where there are no hereditary defects, retain its vitality and vigor to old age, but every movement of the body or action of the brain involves waste of the vital force, and this the Creator has provided shall, to a great extent, be replenished during sleep. Hence, it is necessary to spend about one-third of our time in sleep. While it is true that the reserve force of life is so great in many persons as to enable them to live for a time with less than the normal amount of sleep required, yet, if continued for any considerable time, the general health will be affected, and to entirely abstain from sleep for a week or more, as in cases of certain fevers, like the typhoid, almost unavoidably results in temporary insanity, if not death. But the recuperation from sleep in most cases does not restore full tone to the system, and Sunday is like an oasis in the journey of life where each traveler may be refreshed and become more able to continue the performance of his duties or labors. As a natural consequence, if the vitality of the body is permitted steadily to decrease without being replenished, life will be proportionately shortened. Therefore, if a person labors continuously at hard and exacting labor without rest for many years, his health is liable to be impaired and he become prematurely old. No doubt one of the objects of the Creator in establishing the Sabbath as a day of rest was to provide for restoring and retaining, as far as possible, health and strength and perfect action of the body. Every person of observation knows that the man who labors seven days in the week continuously for any considerable length

State v. O'Rourk.

of time lacks the spring and elasticity of action of another of like years and naturally active habits who rests on Sunday. Experience has also shown that men will accomplish more labor in a series of years by working six days in the week than by continuous application.

Sunday is to be a day of rest. Worldly cares are to be laid aside, and the worries of business or pleasure thrown off. How gladly the tired laborer, workman, farmer, merchant, manufacturer, attorney, and judge welcome Sunday as a day of rest and on the succeeding Monday enter upon their respective labors with renewed strength and vigor The idler and trifler may complain of the loss of time from resting on Sunday; but the active, intelligent, worker knows that thereby he has increased his capital stock of health and chances of longevity. Christ sought to apply the Sabbath to its appropriate use. The Jewish religion at that time consisted largely of outward ceremonies which were performed with a rigor never intended by the author of the Mosaic law. It is evident that great reliance was placed upon these outward ceremonies. Christ, however, while not condemning many of these ceremonies, intended to show that the mere observance of these was not sufficient; that the Sabbath was made for man, and not man for the Sabbath; and in effect, therefore, that works of charity, mercy, and necessity not only could, but if necessary should, be performed on that day. He recognized the Sabbath, however, as a day of rest set apart by the Creator. After His death and resurrection, His disciples, to commemorate that event, changed the day to the first day of the week, and that day is now observed by the great body of His followers throughout the world, and is recognized by both the common and statute law.

In this state the right of every one to worship God according to the dictates of his own judgment and conscience is recognized, and hence permits those who prefer to keep the seventh in place of the first day of the week to do so.

State v. O'Rourk.

The law, both human and divine, being thus in favor of abstaining from sporting, etc., on Sunday, is a reasonable requirement and should be enforced. The deliberate violation of such a law, there is reason to believe in many cases, is but the commencement of a series of offenses that lead to infamy and ruin; and in any event the influence upon the participants themselves has a tendency to break down the moral sense and make them less worthy citizens. The state has an interest in their welfare and may prevent their violation of the law. The state, in order to prevent vice and immorality, may punish licentiousness, gambling of all kinds, the keeping of lotteries, enticing minors to gamble, or to permit one under eighteen years of age to remain in a billiard room; to punish publishing, keeping, selling, or giving away any obscene, indecent, or lascivious paper, book, or picture, and also punish any person who shall lend or show to any minor child any such paper, publication, or picture, etc. The law also punishes the disturber of a religious meeting, school meeting, election, etc. These cases show the importance felt by the legislature, of evils of the kind named, and others, by means of which, in addition to wrongs inflicted on the persons injured, a spirit of insubordination is created and fostered which incites to evil and tends to subvert the just and equal rights of some, or all. In addition to this, every person has a right to the quiet and peace of a day of rest. He has also a right to the enforcement of the law so that the evil example of a defiance of the law shall not be set before his children. The state has an interest in their welfare also, in order that they may become useful citizens and worthy and honorable members of society. The fact that the defendants were some distance away from the residence of any person can make no difference. It did not change the nature of the offense nor excuse the act. It was a violation of the law just the

same.

The question here presented was before the Kansas City

McCormick v. Hartman.

court of appeals in State v. Williams, 35 Mo. App., 541, and it was held the parties were liable. Afterwards the question of the validity of a contract arose. In St. Louis, etc., Ass'n v. Delano, 37 Id., 284, in an action upon a contract, it was held that under the Missouri statute athletic games and sports on Sunday were not prohibited. The case was then taken to the supreme court of that state, where the judgment was affirmed. (St. Louis, etc. Ass'n v. Delano, 18 S. W. Rep. [Mo.], 1101.) An examination of the statute shows that it is not as broad as ours.

In addi

tion to this it is evident the question of the validity of the contract was not raised by the pleadings and therefore was not in issue. Under our statute, however, sporting is clearly prohibited and the party guilty thereof is liable to the punishment provided by statute.

It is unnecessary to consider the other branch of the

case.

The district court and also the county court erred in holding that the defendants were not liable, and dismissing the action.

THE other judges concur.

EXCEPTIONS SUSTAINED.

MCCORMICK HARVESTING MACHINE COMPANY V. M. K. HARTMAN.

[FILED NOVEMBER 10, 1892.]

Action on Notes Given for Harvesting Machine: GUARANTY: WEIGHT OF EVIDENCE. Held, That the testimony failed to show a substantial compliance on the part of the defendant with the terms of the guaranty proved, and that the verdict was against the clear weight of evidence.