Commonwealth v. Has

Decision Date04 January 1877
Citation122 Mass. 40
PartiesCommonwealth v. Gehring Has
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Argued November 27, 1876; November 29, 1876

Suffolk. Complaint on the Gen. Sts. c. 84, § 1, charging the defendant with unlawfully keeping open his shop on the Lord's day.

At the trial in the Superior Court, before Gardner, J., the defendant admitted keeping the shop open to do lawful secular business and traffic with the public therein, and testified that, when he did so, he conscientiously believed that the seventh day of the week ought to be observed as the Sabbath and that he so observed it, and disturbed no person. But the judge ruled that the Gen. Sts. c. 84, § 1, contained two classes of offences so far as the ninth section was concerned: 1. Keeping open a shop, warehouse or workshop; 2. Doing labor, business or work, &c.; that § 9 of the same chapter relieved only the second offence from punishment, and made the first offence absolute; and instructed the jury that they must find the defendant guilty if they believed that he kept an open shop on the Lord's day for the purpose of doing business with the public therein, whatever his conscientious scruples about the seventh day might be. The jury returned a verdict of guilty and the defendant alleged exceptions.

Exceptions overruled.

G Sennott, for the defendant.

W. C Loring, Assistant Attorney General, (C. R. Train, Attorney General, with him,) for the Commonwealth.

OPINION

Devens, J.

The Gen. Sts. c. 84, §§ 1, 2, provide for the punishment of five distinct offences as violations of the Lord's day. These are: 1. Keeping open a shop, warehouse or workhouse. 2. Doing any manner of labor, business or work, except works of necessity or charity. 3. Being present at any dancing or public diversion. 4. Taking part in any sport or play. 5. Travelling on the Lord's day, except from necessity or charity. The ninth section of the same chapter provides that, "whoever conscientiously believes that the seventh day of the week ought to be observed as the Sabbath, and actually refrains from secular business, travel and labor on that day, shall not be liable to the penalties of this chapter for performing secular business, travel or labor on the Lord's day, or first day of the week: provided, that he disturbs no other person."

The ruling of the presiding judge was, in effect, that the provisions of the 9th section could not be extended so as to permit the act of keeping open a shop upon the Lord's day. This interpretation was correct. That the 9th section is not intended to permit, to the persons therein described, all the acts expressly forbidden in the previous sections, such as being present at dances or public diversions or taking part in sports or plays, is quite clear. The defendant contends that, as he is a shopkeeper and as the doing of secular business is permitted to him, he may properly keep open his shop on the Lord's day. This act is, however expressly forbidden by the first clause, and the secular business which is permitted is of the character described in the second clause of the first section. It is so apparent...

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39 cases
  • Zayre Corp. v. Attorney General
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 21 Abril 1977
    ...reliance on that decision and prior decisions of this court, Commonwealth v. Chernock, 336 Mass. 384, 145 N.E.2d 920 (1957); Commonwealth v. Has, 122 Mass. 40 (1877), held G.L. c. 136, §§ 5, 6, constitutional and rejected, as had the Supreme Court, the contention that the exemptions in § 6 ......
  • Stark v. Backus
    • United States
    • Wisconsin Supreme Court
    • 26 Octubre 1909
    ...Mass. 359, 11 N. E. 533;Commonwealth v. Osgood, 144 Mass. 362, 11 N. E. 536;Commonwealth v. Dale, 144 Mass. 363, 11 N. E. 534;Commonwealth v. Has, 122 Mass. 40;Commonwealth v. Nagle, 117 Mass. 142;Commonwealth v. Collins, 2 Cush. (Mass.) 556. There is quite a variety of Sunday statutes, and......
  • State v. Chicago, B. & Q. R. Co.
    • United States
    • Missouri Supreme Court
    • 2 Enero 1912
    ...forbearing to labor on that day in one's ordinary vocation or business pursuit.'" To the same effect are the following cases: Commonwealth v. Has, 122 Mass. 40-42; Specht v. Commonwealth, 8 Pa. 312, 322, 49 Am. Dec. 518; Frolickstein v. Mobile, 40 Ala. 725; Ex parte Andrews, 18 Cal. 678, in......
  • Crown Kosher Super Market of Mass., Inc. v. Gallagher
    • United States
    • U.S. District Court — District of Massachusetts
    • 20 Julio 1959
    ...that court has, rather gingerly and briefly, upheld the statute against attacks based upon the state Constitution. See Commonwealth v. Has, 1877, 122 Mass. 40; Commonwealth v. Chernock, 1957, 336 Mass. 384, 145 N.E.2d The federal complaint now before us seeks a declaration that certain prov......
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1 books & journal articles
  • Sunday law in the nineteenth century.
    • United States
    • Albany Law Review Vol. 64 No. 2, December 2000
    • 22 Diciembre 2000
    ...to use his religious beliefs as a justification for violating the statute). (283) Id. at 484. (284) Id. (quoting Commonwealth v. Has, 122 Mass. 40, 42 (285) See BLAKELY, supra note 71, at 370-79 (discussing the debate surrounding enactment of legislation barring the fair from opening on Sun......

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