Berta v. State

• Decision Date: 23 March 1967
• Docket Number: No. 23926,23926
• Citation: 154 S.E.2d 594,223 Ga. 267
• Parties: Robert BERTA v. The STATE.
• Court: Georgia Supreme Court

Page 594

154 S.E.2d 594

223 Ga. 267

Robert BERTA v. The STATE.

No. 23926.

Supreme Court of Georgia.

March 23, 1967.

Rehearing Denied April 6, 1967.

Syllabus by the Court.

1. Code § 26-6905, making it a misdemeanor for any person to 'pursue his business or the work of his ordinary calling on the Lord's day, works of necessity or charity only excepted,' is not discriminatory because it selects the Christian Sunday as the Sabbath day, rather than a day observed by other religious groups as a Sabbath day.

2. Code § 26-6905, and the assusation in the present case drawn thereunder, are not too vague, uncertain, and indefinite to constitute the basis of a criminal prosecution.

3. The amendment of Code § 26-6905 by Ga.L.1949, pp. 1007-1009 (Code Ann. § 26-6915 et seq.), providing for exceptions to the operation of the statute, does not violate the equal protection clause of the State Constitution.

4. The evidence authorized the verdict, and the contentions in regard to the instructions to the jury are not meritorious.

Kravitch & Hendrix, John W. Hendrix, Aaron Kravitch, Phyllis Kravitch, Savannah, for appellant.

Andrew J. Ryan, Solicitor, Tom A. Edenfield, A. Pratt Adams, Jr., Savannah, for appellee.

COOK, Justice.

Robert Berta was accused of the offense of misdemeanor 'in that said defendant did pursue his business and the work of his ordinary calling on the Lord's Day, and which was not a work of necessity or charity, to wit: by selling two decks of playing cards on Sunday, June 6, 1965.' His demurrers to the accusation were overruled. He was convicted and sentenced to pay a fine of $100, or in default thereof to serve a sentence of four months. His motion for new trial, as amended, was denied. He appeals from the judgment of conviction and sentence thereon and from the denial of his motion for new trial, as amended.

The questions made by the enumeration of errors involve the sufficiency and constitutionality of the accusation, the constitutionality of the statute (Code § 26-6905) under which the accusation was brought, the sufficiency of the evidence to sustain the verdict, and the correctness of certain instructions to the jury.

1. Code § 26-6905 provides: 'Any person who shall pursue his business or the work of his ordinary calling on the Lord's day, works of necessity or charity only excepted, shall be guilty of a misdemeanor.' Statutes requiring the cessation of labor on Sunday have been in effect in this State since colonial days. See Hayden v. Mitchell, 103 Ga. 431, 440, 30 S.E. 287.

It is contended that the statute is discriminatory because it selects the Christian Sunday as the Sabbath day and discriminates aginst those religious groups that use Saturday as the Sabbath day. Historically the requirements of our law forbidding labor on Sunday, and similar laws of other States, were based on religious beliefs in regard to the sancity of the Sabbath day as observed by people of the Christian faith, and this background is reflected in our statute, which refers to Sunday as 'the Lord's day.' It is now generally held that the authority to enact and enforce such laws rests within the police power of the State.

In Hennington v. State, 90 Ga. 396, 398, 17 S.E. 1009, decided by this court in 1892, statutes requiring the cessation of labor on Sunday were held to be of a police nature. In that case Mr. Chief Justice Bleckley, speaking for the court, said in part: 'With respect to the selection of the particular day in each week which has been set apart by our statute as the rest day of the people, religious views and feelings may have had a controlling influence. We doubt not they did have, and it is probable that the same views and feelings had a very powerful influence in dictating the policy of setting apart any day whatever as a day of enforced rest. But neither of these considerations is destructive of the police nature and character of the statute. If good and sufficient police reasons underlie it, and substantial police purposes are involved in its provisions, these reasons and purposes constitute its civil and legal justification, whether they were or not the direct and immediate motives which induced its passage, and have for so long a time kept it in force. Courts are not concerned with the mere beliefs and sentiments of legislators, or with the motives which influence them in enacting laws which are within legislative competency. That which is properly made a civil duty by statute is none the less so because it is also a real or supposed religious obligation; nor is the statute vitiated, or in any wise weakened, by the chance, or even the certainty, that in passing it the legislative mind was swayed by the religious, rather than by the civil, aspect of the measure. * * * Opinions may differ, and they really do differ, as to whether abstaining from labor on Sunday is a religious duty; but, whether it is or not, it is certain that the legislature of Georgia has prescribed it as a civil duty. The statute can fairly and rationally be treated as a legitimate police regulation, and, thus treated, it is a valid law. There is a wide difference between keeping a day holy as a religious observance and merely forbearing to labor on that day in one's ordinary vocation or business pursuit.' The Hennington case was affirmed by the Supreme Court of the United States. Hennington v. State of Georgia, 163 U.S. 299, 16 S.Ct. 1086, 41 L.Ed. 166.

In McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393, in which a Maryland Sunday closing law was held not to be subject to the attack that it denied religious liberty, the Supreme Court of the United States used the following language: 'Throughout this century and longer, both the federal and state governments have oriented their activities very largely toward improvement of the health, safety, recreation and general wellbeing of our citizens. Numerous laws affecting public health, safety factors in industry, laws affecting hours and conditions of labor of women and children, week-end diversion at parks and beaches, and cultural activities of various kinds, now point the way toward the good life for all. Sunday Closing Laws, like those before us, have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations. The present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals.'

In Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563, and Gallagher v. Crown Kosher Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536, it was held that the Pennsylvania and Massachusetts Sunday closing laws did not violate the equal protection clause of the Fourteenth Amendment to the Constitution on the ground that they discriminated against people of the Orthodox Jewish Faith, which requires the total abstention from all manner of work from nightfall each Friday until nightfall each Saturday.

Code § 26-6905 is an exercise of the police power of the State, and it is not subject to the attack that it discriminates against religious groups which do not observe Sunday as the Sabbath day.

2. It is asserted the Code § 26-6905 violates the due process clause of both the State and Federal Constitutions because the statute is too vague, uncertain, and indefinite to constitute the basis of a criminal prosecution; and the same contention is made with reference to the accusation....