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Sunday Laws In Ohio

(Continued from p. 117)

Jacob Rice, ads. City of Cincinnati In Certiorari, to Common Pleas

The Case.

But it is asked what is the office of the word “common,” prefixed to “labour,” if it be not thus to distinguish between classes and grades of employment. The answer, is, that as the Statute describes an offence, and affixes a punishment, it contemplates the existence of a motive to do evil in the transgressor. The man who observes the seventh day of the week, and quietly goes about his ordinary avocations on the first, is not in motive, or design, which is the language of the criminal law, a transgressor. And this, because he is engaged in that which is with him “common labour.”  But if instead of that, he went about some other employment in which the rights of others were injured, or the peace of society endangered, it would indicate an evil and malicious disposition, and the law instead of protecting, would punish him. As for instance, if the defendant in this case, instead of opening his store, and disposing of his goods to such as came to purchase them, on the first day of the week, had engaged himself in driving a dray in the vicinity of places of public worship, or otherwise molesting others in the enjoyment of their rights, he would not then have been permitted to call that his “common labour,” and so cloak an evil and malicious purpose. The very office of the word “common,” is to confine those who observe the seventh and use the first day of the week, to their usual trade or occupation.

Again, the inquiry is made, why, if the city council intended to include the ordinary occupation of a citizen, in the words “common labour” used in the proviso, did they insert the prohibition against bartering, selling, etc., in the first section. We answer that the office of the whole Ordinance, taken together, is to prohibit all from either buying or selling who are not protected by the saving clause. Though under the statute and ordinance both, as we construe them, the Israelite is permitted, on account of his religious faith, to vend his wares on the first day of the week,—and there is no power to prohibit him from so doing,—yet it is perfectly competent to prohibit a traffic with him on that day, by any others than those who hold a like religious faith. His right to sell, if that be his usual occupation—his “common labour,”—and the right of others holding to like faith and observances, to buy, are matters which cannot be restricted. The right of others to vend merchandise on that day, even as an ordinary occupation, is restrained by the statute, but the traffic of those not Israelites, and so amenable to the general laws in regard to the Sabbath, with such as are permitted to vend, is not restricted by the Statute, and the office of the prohibition is to remedy this omission, and nothing more. To this end it is competent; beyond this, it has no power.

The defendant is a merchant. He offered to prove, but it was admitted by the Mayor, from personal knowledge, that he closed his place of business on the seventh day of the week, and conscientiously observed that as the Sabbath. His offence consisted in opening his place of business on the first day, and offering his merchandise to those who were disposed to purchase. We claim that as this was his ordinary avocation, it was with him “common labour,” and that he is within the proviso as well of the Ordinance as of the Statute. We submit that  we have shown the unreasonableness of holding the phrase “common labour” to have relation to the nature of the employment;—that so construed it is inconsistent and absurd; and the law imperfect and ridiculous. But when construed with reference to the man, it has a perfect meaning and operation;—while the phrase “common,” distinguishes that labour which is customary and usual, from that which may be resorted to from caprice and wantonness, and in despite of good order, and thus furnishes a complete predicate for the effectual application of the law.

If we are correct in these positions, then there is an end of the case. But if the Court shall hold that the intention of the City Council is sufficiently manifest to exclude the avocation of the merchant from the protection granted to “common labour,” and that  it is not saved by the proviso, then it may be material to inquire as to the power of the council to depart from the policy of the statute, to draw a distinction which it does not recognise, and to create and punish an offence, in contravention of a general law.

The ground we assume as to the relative positions of the ordinance, and the statute, are not fully or fairly stated by plaintiff’s counsel. We submit this proposition, and conceive it to be well-settled law: that where the act of a corporation, either by express words, or necessary implication, contravenes the letter or spirit of a statute law of the State upon the same subject, it is necessarily void.—Marietta v. Fearing, 4th Ohio Rep. 432.

We claim, and conceive we have demonstrated, that the phrase “common labour,” in the statute, annexes itself to, and covers a man’s ordinary occupation; and that it cannot, by any ingenuity, be construed to mean anything else. If the construction we claim for the ordinance be given to it, then it  harmonizes with the statute;—but if that of plaintiff’s counsel prevail, then there is a serious and fatal repugnance. In the latter case the ordinance is restrictive of the statute,—and that, too, in a matter which refers to the organic law of the State. The City enactment undertakes to find that the Legislature has been too liberal in its construction of the Constitution;—too indulgent to the rights of conscience,—too tolerant to the man who conscientiously observes the Sabbath of the faith in which he has been reared; and entirely foolish in supposing, that in this enlightened and polished age, “common labour” can embrace anything above paving streets, carrying a hod, or sawing wood.

The policy of this statute is to require a due observance of the first day of the week as a Sabbath. Yet it is marked by a great and distinctive principle; and that is, that its provisions shall not be operative upon those who conscientiously observe the seventh day instead.

For the purpose of the argument let it be conceded, that within the policy of the law, a municipal corporation has the power, within its jurisdiction, to legislate upon the same subject; and in so doing, to increase the punishment, or embrace other offences against the Sabbath than those which are named; does it follow by parity of reasoning, or correct legal conclusion, that such corporation has also a right to infringe the principle of the law, by substituting a saving clause widely different, and far more restrictive, than that which the statute contains? Most assuredly not. Such a doctrine is too absurd in theory to be maintained by the Courts, as it would be too dangerous in practice to be submitted to by the citizen.

The counsel for the City has laboured to controvert this position, by a citation of authorities, all of which fall within the first, without impairing the latter point. In Rogers v. Jones, 1st Wendell, 260, it was held that the Legislature of New York having fixed a fine of $1 for servile labour on Sunday, the corporation of the city of New York might increase it to $5; and this is said to be a case in point. Not so. The increase was within the policy of the law—and we are not advised that any rights were impaired. In like manner, the ordinance now under consideration increases the maximum penalty of the statute from $5 to $20;—but that is not adduced as a violation of the statute. So as to penalties for storing of gunpowder, cited in the same case. The Legislature had never acted upon the subject. The principle is not shaken.

But the learned counsel lays stress upon the phraseology of the statute. “Nothing herein contained shall be construed,” &c,. “A simple exemption from the force of that statute, not from liability under any other statute, or any municipal ordinance.” The technicality is a mere grasp at a straw; the quibble unworthy the case or the counsel. Is not the statute an existing law of the State? Does it not by its very exemption declare a great principle, and fix the rights of the citizen under it? And may a municipal corporation restrict the one, and infringe the other, because not prohibited, in express terms, from so doing? Most certainly not.

We submit, then, that if the construction which is claimed by the City, be put upon the ordinance, that it is in letter and in spirit repugnant to, and contravenes the general law of the State; not because the corporation has legislated upon the same subject, but because in so doing, it has undertaken to restrict the proviso of the statute, and limit the rights of the citizen, which the Constitution has guarantied, and the statute confirmed unto him; and that insomuch as it does so, it is null and void.

We do not propose to continue this argument over the constitutional ground which was taken in the Court below. We apprehend this case will be decided before reaching this point. It may be, that we owe it in courtesy to counsel on the other side, to notice the only material argument which he urges in this connexion.

(To be continued.)