statutory language, it is sufficient to give the cases in a note.1 The indictment may charge the sending out of a number of circulars, or the sale of several tickets sold at once, or the publication of an advertisement stating both the place of sale of tickets and the place of drawing, without ground of objection as to duplicity. 1P. v. Noelke, 94 N. Y. 137; P. v. Taylor, 3 Denio, 99; S. v. Willis, 78 Me. 70; S. v. Ochsner, 9 Mo. Ap. 216; C. v. Bierman, 13 Bush, 345; Whitney v. S., 10 Ind. 404; France v. S., 6 Baxt. 478; C. v. Horton, 2 Gray, 69; C. v. Sheedy, 159 Mass. 55; C. v. 494 Clapp, 5 Pick. 41; S. v. Shorts, 32 3 Fontaine v. S., 6 Baxt. 514. CHAPTER 66. VIOLATION OF SUNDAY LAWS. § 1319. Nature of regulations; constitutionality. From very early times there have been statutory regulations as to the observance of the Sabbath,' and it may be safely said that, aside from any express statutory provision, a breach of the Sabbath is a misdemeanor, but it is not a breach of the peace if without noise or disturbance to the public. A Sunday law is purely a police regulation, and therefore is not in violation of the provisions in the federal and state constitutions as to the establishment of religion or prohibiting the free exercise thereof.3 Such statutes have probably been passed in all the states, and in none of them have they been held unconstitutional as interfering with religious freedom; nor are such statutes uncon 1 The earliest recognition of the Christian Sabbath as a civil institution seems to have been in the edict of Constantine the Great (A. D. 221), decreeing a rest on that day from all labor except agricultural pursuits. In England regulations as to the observance of the Sabbath are found from the time of King Alfred to the present, an enumeration of which would be of no advantage; but see references to the subject in 2 Inst. 264; 4 Bl. Com. 69; Drury v. De Fontaine, 1 Taunt. 131; Reg. v. Cleworth, 4 B. & S. 927. 2 C. v. Eyre, 1 Serg. & R. 347. 3 Ex parte Burke, 59 Cal. 6; P. v. Bellet, 99 Mich. 151; Judefind v. S., 78 Md. 510; 1 Dill. Mun. Corp., § 397; Cooley's Const. Lim. 584, 725. C. v. Wolf, 3 Serg. & R. 48; Updegraph v. C., 11 Serg. & R. 394; Specht v. C., 8 Pa. St. 312; Johnston v. C., 22 Pa. St. 102; Society v. C., 52 Pa. St. 125; Story v. Elliot, 8 Cow. 27; Neuendorff v. Duryea, 69 N. Y. 557; Lindenmuller v. P., 33 Barb. 548; C. v. Colton, 8 Gray, 488; C. v. Has, 122 Mass. 40; C. v. Dextra, 143 Mass. 28; Warner v. Smith, 8 Conn. 14; S. v. Noyes, 47 Me. 189; Thorpe v. Rutland & B. R. Co., 27 Vt. 140; Bloom v. Richards, 2 Ohio St. 387; Voglesong v. S., 9 Ind. 112; S. v. Ambs, 20 Mo. 214; Charleston v. Benjamin, 2 Strobh. 508; Karwisch v. Atlanta, 44 Ga. 404; P. v. Griffin, 1 Ida. (N. S.) 476; Gunn v. S., 89 Ga. 341; Shover v. S., 7 Ark. 259; Lewis v. S., 21 Ark. 209; Gabel v. Houston, 29 Tex. 335; Sunday Law Cases, 30 Tex. 521; Ex parte Sundstrom, 25 Tex. Ap. 133; Usener v. S., 8 Tex. Ap. 177; In re King, 46 Fed. R. 905. In California there has been some objection as to the validity of such statutes, but they are now upheld: Ex parte Burke, 59 Cal. 6; Ex parte Koser, 60 Cal. 177; Ex parte Andrews, 18 Cal. 678: Ex parte Bird, 19 Cal. 130. Contra, Ex parte Newman, 9 Cal. 502. The following cases are to stitutional as depriving a subject of his liberty or property without due process of law, or denying him equal protection of the law. But a statute prohibiting special occupations on Sunday which are no more objectionable than others which are permitted is unconstitutional, for it amounts to special legislation and is an interference with liberty and rights of property. Sunday laws are not unconstitutional as applied to those who conscientiously observe the seventh day of the week,3 but it is usual to make an exception in the statute so that it shall not apply to such persons. Such exception, however, is not available to one who does not observe the seventh day of the week, even though he may believe that it is the day which ought to be observed; nor does such exception authorize one who does not observe the seventh day to trade on Sunday with those who do. While it is the general public welfare which is consulted in passing these statutes, yet it is not merely anything which constitutes an annoyance to the public that is a breach thereof and punishable, but any act in violation is a crime. § 1320. What deemed Sunday. In general all parts of the twenty-four hours from midnight on Saturday until midnight on Sunday are covered by the statutes as to Sunday observance; but in some states it has been held that the statute relates to the solar day only, while in others the day begins on midnight of Saturday and ends at sundown on Sunday, and in still others the evening of Sunday, but of course not the evening preceding it, is included. some extent exceptional, but do not contravene the general power of the state to pass such statutes: S. v. Brooksbank, 6 Ired. 73; S. v. Williams, 4 Ired. 400; S. v. Schnierle, 5 Rich. 299; Ward v. Green, 11 Conn. 455. 1 P. v. Bellet, 99 Mich. 151. 2 Eden v. P., 161 Ill. 296; S. v. Granneman, Mo. 33 S. W. R. 784; Ex parte Jentzsch, 112 Cal. 468, 44 Pac. R. 803. Contra, P. v. Havnor, 149 N. Y. 195. And see supra, § 77. The cases here cited relate to keeping open barber-shops on Sunday. But a statute making it unlawful "to open on Sunday for the purpose of trade or sale of goods, etc., any shop, store, building, or place of business whatever," does not include a barber-shop: S. v. Krech, 10 Wash. 166. 3 C. v. Wolf, 3 Serg. & R. 48; C. v. Starr, 144 Mass. 359; C. v. Has, 122 Mass. 40; Scales v. S., 47 Ark. 476. 4 Liberman v. S., 26 Neb. 464. 5 Ex parte Sundstrom, 25 Tex. Ap. 133. 6 Parker v. S., 16 Lea, 476; Gunter v. S., 1 Lea, 129. 7 As to closing saloons on Sunday, see supra, § 1264. 8 S. v. Green, 37 Mo. 466; Fox v. Abel, 2 Conn. 541; Finn v. Donahue, § 1321. Works of charity or necessity excepted. The statutes uniformly contain some exception as to works of necessity or charity, and in general a question as to whether a particular act complained of was within the exception is for the jury; but the necessity which will excuse must be a real, not a fancied one. In applying these exceptions there is some diversity in the result as to particular classes of cases. There are many illustrations of the general proposition that work of necessity includes such as is essential to avoid considerable pecuniary loss which would result if it was not done; such, for instance, as the harvesting of crops which would probably be destroyed by delay, there having been no negligence in not securing them sooner, or the turning of malt which would otherwise be damaged, or the operating of an ice factory, it appearing that to close it over Sunday would cause a delay of a day or more in getting it again into operation," or the boiling down of maple sap which would be lost if not thus attended to, or the shoeing of horses on Sunday to enable a stage company to carry the mails on Monday morning in accordance with a contract. So feeding of stock on Sunday is a matter of necessity. On the other hand, the mere fact that pecuniary loss will result does not in itself show that the work is one of necessity. Thus, it is held not lawful to clean a wheel-pit on Sunday for the purpose of avoiding the necessity of stopping the mill on a week day; nor to gather sea-weed which would otherwise have been washed away by the next tide." The mere fact that work can be more conveniently done on Sunday will not bring it within the exception." Some occupations must be 35 Conn. 216; Bryant v. Biddeford, of necessity is a question of fact: C. 39 Me. 193; C. v. Newton, 8 Pick. 234. v. Gillespie, 146 Pa. St. 546. 1S. v. Knight, 29 W. Va. 340; C. v. Josselyn, 97 Mass. 411; Edgerton v. S., 67 Ind. 588; C. v. Gillespie, 146 Pa. St. 546. 2 Johnson v. Irasburgh, 47 Vt. 28. 3 Turner v. S., 67 Ind. 595; Wilkinson v. S., 59 Ind. 416; S. v. Goff, 20 Ark. 289; Reg. v. Cleworth, 4 B. & S. 927. 4 Crocket v. S., 33 Ind. 416. 5 Hennersdorf v. S., 25 Tex. Ap. 597. Whether or not the pumping of an oil well on Sunday is a work 6 Morris v. S., 31 Ind. 189. So hauling to market watermelons which would otherwise have spoiled was held lawful: Wilkinson v. S., 59 Ind. 416. 7 Nelson v. S., 25 Tex. Ap. 599. 8 Edgerton v. S., 67 Ind. 588. 9 McGrath v. Merwin, 112 Mass. 467. 10 C. v. Sampson, 97 Mass. 407. 11 Cleary v. S., 56 Ark. 124. It may be a work of necessity, however, to repair the highway on Sunday: Flagg v. Millbury, 4 Cush. 243. pursued on Sunday out of regard to the health and general comfort of the public dependent on such services, which cannot be performed on week days, so as to avoid the necessity of Sunday labor therein; thus, it may be necessary to carry on the business of selling medicines or drugs on Sunday,' or that of furnishing water or supplying milk to customers; but as to whether the business of baking can properly be carried on upon Sunday there seems to be doubt. The sale of cigars and tobacco is not necessary on Sunday,' nor, it seems, is it necessary for a barber to shave customers on that day, or for a newsdealer to sell newspapers." § 1322. Sunday traveling.- Much conflict has arisen in determining whether traveling on Sunday is a work of necessity or charity such as to take it out of the Sunday statutes. In general, traveling on matters of business comes within the prohibition unless it is for necessity or charity. But if the traveling becomes necessary by reason of sickness or accident, or is for the purpose of attending worship, it may be proper. 1 But this will not cover the sale of tobacco and cigars though by a druggist: C. v. Marzynski, 149 Mass. 68; or liquors: Elkin v. S., 63 Miss. 129. The question whether Florida water is a medicine or not so that the sale thereof on Sunday at a drug store may be proper, see Todd v. S., 30 Tex. Ap. 667. Alcohol is within the statute relating to the sale of goods, wares and merchandise at retail on Sunday: Bridges v. S., 37 Ark. 224; Hall v. S., 3 Ga. 18. But an innkeeper authorized to sell liquor may properly sell on Sunday: Hall v. S., 4 Harr. 132. And see Omit v. C., 21 Pa. St. 426; Atkinson v. Sellers, 5 C. B. (N. S.) 442 2 Rex v. Cox, 2 Burr. 785; Rex v. Younger, 5 T. R. 449. But one who sells bread and groceries is not within the statutory exception as to bakers: C. v. Crowley, 145 Mass. 430. 3 Mueller v. S., 76 Ind. 310; Friedeborn v. C., 113 Pa. St. 242. But it may be proper for a tavern-keeper in the course of his business to sell cigars to guests: Carver v. S., 69 Ind. 61. 4C. v. Waldman, 140 Pa. St. 89; Ungericht y. S., 119 Ind. 379; C. v. Jacobus, 1 Leg. Gaz. R. 491, 15 Cent. L. J. 145; S. v. Frederick, 45 Ark. 347; C. v. Dextra, 143 Mass. 28; Phillips v. Innes, 4 Cl. & F. 234. But barbering on Sunday is not a nuisance: S. v. Lorry, 7 Baxt. 95. 5 C. v. Dale, 144 Mass. 363. In Pennsylvania it has been held that issuing, publishing and circulating a newspaper on Sunday is a worldly employment within the language of the Sunday statute: C. v. Matthews, 152 Pa. St. 166; and a contract as to advertising in a Sunday newspaper is void: Smith v. Wilcox, 24 N. Y. 353; Handy v. St. Paul Globe Pub. Co., 41 Minn. 188. 6 Holcomb v. Danby, 51 Vt. 428; Johnson v. Irasburgh, 47 Vt. 28; Jones v. Andover, 10 Allen, 18; Connolly v. Boston, 117 Mass. 64; C. v. Knox, 6 Mass. 76. 7 Gorman v. Lowell, 117 Mass. 65; Crosman v. Lynn, 121 Mass. 301. 8 C. v. Nesbit, 34 Pa. St. 398; Feital v. Middlesex R. Co., 109 Mass. 398. |