Elliott v. State

• Decision Date: 07 January 1926
• Docket Number: Criminal 620
• Citation: 29 Ariz. 389,242 P. 340
• Parties: F. E. ELLIOTT, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

242 P. 340

29 Ariz. 389

F. E. ELLIOTT, Appellant, v. STATE, Respondent

Criminal No. 620

Supreme Court of Arizona

January 7, 1926

APPEAL from a judgment of the Superior Court of the County of Yuma. F. L. Ingraham, Judge. Judgment reversed and cause remanded with instructions.

Mr Will E. Ryan, for Appellant.

Mr John W. Murphy, Attorney General, Mr. Earl Anderson and Mr Frank J. Duffy, Assistant Attorneys General, Mr. Henry C. Kelly, County Attorney, Mr. H. H. Baker and Mr. H. Wupperman, for the State.

OPINION

LOCKWOOD, J.

F. E. Elliott, hereinafter called the appellant, has appealed from a conviction for violation of Ordinance No. 37 enacted by the town of Somerton, Yuma county, Arizona, which reads, so far as material in this case, as follows:

"It shall be unlawful for any person . . . conducting or managing any grocery store, butcher shop, or market for the sale of meat, fish, fruit, or vegetables, dry goods store, shoe store, haberdashery, millinery establishment, lumber yard, hardware store, within the town of Somerton, Arizona, to open, keep open or allow to remain or be kept open, such store or place, or to sell or offer or permit to be sold or offered for sale of any goods, wares, or merchandise usually kept or offered for sale by the above-described stores or places of business on any Sunday; and provided, however, that the prohibitions of this section shall not be held or construed to apply to or restrict or prevent the sale at any and all times of drugs, medicines, toilet articles, tobaccos, and cigars, fruit and confectionery, nor to include confectionery stores, ice cream parlors, soda fountains, automobile service stations, dealers in gasoline, oils and automobile accessories, nor the manufacture or sale of ice. . . . Ordinances No. 15 and 33, and all ordinances, or parts of ordinances, conflicting with the provisions of this ordinance are hereby repealed."

Appellant admitted that on the Sunday in question his store was open, and that he sold in the course of his usual trade, among other things, groceries and hardware. A demurrer was interposed to the complaint on the ground that it did not state a public offense, which was overruled by the superior court, and it is agreed by counsel that the sole question before us is as to the legislative power of the town of Somerton to enact the ordinance in question.

There are some five assignments of error which we will not consider specifically, but rather as to the general issues of law which they present. The principle involved is one of considerable importance, and of first impression in this state, so we shall discuss somewhat fully the constitutional questions raised.

The ordinance is one of the type generally known as "Sunday closing laws," and the right of the state to pass legislation of this kind has often been before the courts. The objections raised are usually based upon two propositions: First, that, under the provisions found in most Constitutions securing liberty of conscience, such laws are per se unconstitutional; and, second, that the specific statute conflicts with the provisions also generally found guaranteeing equal protection of law to all citizens, and prohibiting the granting of any special privileges or immunities.

The reasons on which general Sunday closing laws are upheld are well stated by Justice FIELD in Ex parte Newman, 9 Cal. 502, 519-526. His language has been repeatedly approved by courts of last resort, including the Supreme Court of the United States, and, because of the clarity and irresistible logic of his opinion, we quote therefrom:

"The fourth section declares that 'the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state.' . . . The statute is prohibitory in its character, and its constitutionality must be determined by the acts it forbids. The inquiry is as to the power of the Legislature, not as to the motives which induced the enactment. That power is exhibited in the clause which provides that no person shall, on the Christian Sabbath, or Sunday, keep open any store, . . . for business purposes . If the exercise of this power is not prohibited to the Legislature by the Constitution, either in express terms, or by necessary implication, it is our duty to uphold the statute. Of its wisdom or policy, it is not within our province to judge. In what manner it conflicts with the fourth section I am unable to perceive. What have the sale of merchandise, . . . or the business of the artisan, . . . to do with religious profession or worship? There is no necessary connection between them. The petitioner is an Israelite, engaged in the sale of clothing, and his complaint is, not that his religious profession or worship is interfered with, but that he is not permitted to dispose of his goods on Sunday; not that any religious observance is imposed upon him, but that his secular business is closed on a day on which he does not think proper to rest. In other words, the law, as a civil regulation, by the generality of its provisions, interrupts his acquisitions on a day which does not suit him. The law treats of business matters, not religious duties. . . . It is absurd to say that the sale of clothing, or other goods, on Sunday, is an act of religion or worship; and it follows that the inhibition of such sale does not interfere with either. . . . It does not even allude to the subject of religious profession or worship, in any of its provisions. It establishes, as a civil regulation, a day of rest from secular pursuits, and that is its only scope and purpose. Its requirement is a cessation from labor. In its enactment, the Legislature has given the sanction of law to a rule of conduct, which the entire civilized world recognizes as essential to the physical and moral well-being of society. Upon no subject is there such a concurrence of opinion, among philosophers, moralists, and statesmen of all nations, as on the necessity of periodical cessations from labor. One day in seven is the rule, founded in experience, and sustained by science. There is no nation, possessing any degree of civilization, where the rule is not observed, either from the sanctions of the law, or the sanctions of religion. This fact has not escaped the observation of men of science, and distinguished philosophers have not hesitated to pronounce the rule founded upon a law of our race.

"The Legislature possesses the undoubted right to pass laws for the preservation of health and the promotion of good morals, and if it is of opinion that periodical cessation from labor will tend to both, and thinks proper to carry its opinion into a statutory enactment on the subject, there is no power, outside of its constituents, which can sit in judgment upon its action. It is not for the judiciary to assume a wisdom which it denies to the Legislature, and exercise a supervision over the discretion of the latter. . . .

"Authority for the enactment I find in the great object of all government, which is protection. Labor is a necessity imposed by the condition of our race, and to protect labor is the highest office of our laws.

"But [it] is urged that the intention of the law is to enforce the Sabbath as a religious institution. This position is assumed from the description of the day and the title of the act, but [it] is not warranted by either. . . . The power of selection being in the Legislature, there is no valid reason why Sunday should not be designated as well as any other day. Probably no day in the week could be taken which would not be subject to some objection....