State v. Ambs

• Decision Date: 31 October 1854
• Parties: THE STATE, Respondent, v. AMBS, Appellant.
• Court: Missouri Supreme Court

20 Mo. 214

THE STATE, Respondent,

v.AMBS, Appellant.

Supreme Court of Missouri.

October Term, 1854.

1 The laws enforcing the observance of Sunday (R. C. 1845, tit. Crimes and Punishments, secs. 31, 32, 33 and 34,) are constitutional.

2. A dram-shop license does not authorize the holder to sell liquor on Sunday.

3. Keeping open an ale house and selling ale on Sunday, are two distinct offences, under the 34th section of the act above referred to. A defendant who pleads guilty to an indictment containing one count for each offence, is subject to two fines.

Appeal from St. Louis Criminal Court.

Indictment for keeping open an ale house on Sunday, and for selling ale on the same day. The indictment contained two counts, one for keeping open and the other for selling. The defendant pleaded in bar, that, at the time of committing the acts mentioned in the indictment, he was licensed to keep a dram-shop. A demurer to this plea being sustained. he pleaded guilty to the indictment, reserving the right to move in arrest of judgment for its insufficiency His motion in arrest was overruled, and he was fined five dollars upon each count. whereupon he appealed to this court. The cause was submitted on printed arguments by Mr. R. M. Field, and Messrs. Delafield & Kribben, for appellant, and on a written argument by Mr. Clover for the State.

Field (with whom were Delafield & Kribben), for appellant, argued the following points:

I. The defendant's license exempted him from the law prohibiting the sale of ale on Sunday. 1. the law on which the indictment is grounded is applicable to unlicensed persons only. 2. If applied to licensed persons, it violates that clause of the constitution of the United States, which prohibits all state legislation impairing the obligation of contracts.

II. The court below erred in inflicting a double penalty. 1. Only one offense was charged in the indictment. (Crepps v. Durden, Cowp 640; State v. Cottle, 15 Maine, 473; State v. Stinson, 17 Maine, 154; State v. Churchill, 25 Maine, 306; Tracy v. Perry, 5 N. H. 504; Kilbourn v. State, 9 Conn. 560; Washburn v. McInwy, 7 Johns. 134; People v. Adams, 17 Wend. 475.) 2. This error of the court below is incurable. This court cannot impose a single penalty; for it would be exercising original and not appellate jurisdiction. Nor can it remand the case that the error may be corrected below. A case can only be remanded for a new trial. (Crim. Prac. art. 8, § 17.)

III. The whole system of laws designed to enforce the observance of the Christian Sabbath is unconstitutional. 1. They interfere with the rights of conscience. 2. They impose a form of religious worship. 3. They give preference to one religious sect over all others.

Clover, for the State, argued the following points:

I. The defendant's license was subject to the laws in force when it was granted. (Lambert v. The State, 8 Mo. 493.)

II. A distinct offence is charged in each count of the indictment to which the defendant has pleaded guilty, and the court did not err in imposing two fines. If, however, there was error in this, this court will not reverse, but will correct the error by imposing a single fine.

III. The law under which the defendant was indicted is constitutional. (Specht v The commonwealth, 8 Barr. 326; The City of Cincinnatti v. Rice, 15 Ohio. 230; The Commonwealth v. Wolf, 2 Serg. & R. 50; The State v. Williams, 4 Iredell, 400.)

SCOTT, Judge, delivered the opinion of the court.

Peter Ambs was indicted for keeping open an ale house on Sunday, and for selling intoxicating liquors on the same day. Both offenses were included in the same indictment, though in separate counts. He was convicted and fined on each count by one judgment. From this judgment he appealed to this court.

1. The main question argued in the briefs of the counsel in this case was, the constitutionality of the law exacting the observance of Sunday, as a day of rest. It was maintained for the appellant, that the laws enjoining an abstinence from labor on Sunday, under a penalty, and prohibiting the opening of ale and beer houses, and selling intoxicating liquors on that day, were dictated by religious motives, and consequently could not be sustained, being inconsistent with the state constitution, which ordains that all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no man can be compelled to erect, support or attend any place of worship; that no human authority can control or interfere with the rights of conscience; that no person can ever be hurt, molested or restrained in his religious professions or sentiments, if he do not disturb others in their religious worship; that no preference can ever be given by law to any sect or mode of worship.

The statute compelling the observance of Sunday, as a day of rest from worldly labor, expressly provides, that it shall not extend to any person who is a member of a religious society, by whom any other than the first day of the week is observed as Sabbath, so that he observed such Sabbath.

Those who question the constitutionality of our Sunday laws, seem to imagine that the constitution is to be regarded as an instrument framed 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 is 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 of its framers. At the conclusion of that instrument, it is solemnly affirmed by its authors, under their hands, that it was done in the year of our Lord one thousand eight hundred and twenty--a form adopted by all Christian nations, in solemn public acts, to manifest the religion to which they adhere.

Long before the convention which framed our constitution was assembled, experience had shown that the mild voice of Christianity was unable to secure the due observance of Sunday as a day of rest. The arm of the civil power had interposed. The convention sat under a law exacting a cessation from labor on Sunday. (1 vol. Edward's Compilation, 302.) The journal of the convention will show that this law was obeyed by its members as such, by adjournments from Saturday until Monday. In the tenth section of the fourth article of the constitution it is provided that, if the governor does not return a bill within ten days, (Sundays excepted), it shall become a law without his signature. Although it may be said that this...