Lee Wilson & Co. v. State

• Decision Date: 10 July 1916
• Docket Number: 123
• Citation: 187 S.W. 937,125 Ark. 159
• Parties: LEE WILSON & CO. v. STATE
• Court: Arkansas Supreme Court

187 S.W. 937

125 Ark. 159

LEE WILSON & CO. v. STATE

No. 123

Supreme Court of Arkansas

July 10, 1916

Appeal from Mississippi Circuit Court, Osceola District, W. J Driver, Judge; affirmed.

Judgment affirmed.

Coleman Lewis & Cunningham, for appellants.

The labor performed on the Sabbath was a work of necessity. Kirby's Digest, §§ 2030-2032; 61 Ark. 216; 72 Id. 167; 75 Id. 188. The fines were in excess of the statutory penalty. Kirby's Digest, § 2030.

Wallace Davis, Attorney General, and Hamilton Moses, for Appellee.

The work done does not fall within the exception contemplated by the statute. The burden was on appellants to prove unavoidable necessity. 56 Ark. 116; 61 Id. 216; 118 Ind. 248; 97 Mass. 411; 190 Id. 578; 112 Id. 467; 85 Ark. 135; 76 Ind. 310; 112 Mass. 112. The fine is not excessive, but if so, this court will modify the sentence. Only the excess is void. 45 L. R. A. 137; 47 Barb. 503; 45 Cal. 281; 7 Abb. Pr. 96; 91 Am. Dec. 546; 60 N.Y. 559; 66 N.Y. 8; 97 Id. 212; 106 U.S. 371; 146 Mass. 489; 103 Ind. 440; 71 Am. Dec. 374; 87 Ala. 1; 153 U.S 48; 52 So. 627; 137 P. 121; 102 F. 473; 102 N.W. 883; 101 F. 817; 51 L. R. A. 373; Brown on Jurisdiction, § 106; 83 Ala. 55; 85 Cal. 600.

OPINION

MCCULLOCH, C. J.

Appellants were employees of Lee Wilson & Company, a corporation which operated a sawmill at Wilson, Mississippi County, Arkansas. They were members of a log train crew and were indicted for working unlawfully on the Sabbath day, in violation of the statute which makes it a criminal offense for anyone to labor on the Sabbath unless the labor performed is a work of charity or necessity. The case was tried before the court sitting as a jury, upon an agreed statement of facts, and the court adjudged the appellants to be guilty and assessed against each of them a small fine, and they have prosecuted an appeal to this court.

The sawmill of Lee Wilson & Company, situated at Wilson, is used not only for the manufacture of lumber, but the power which operates the mill is also used in supplying light and water to the inhabitants of Wilson, which is a town of about a thousand population. There are about 250 men employed at the mill, and they work six days in the week. The fact that water and light are supplied from the power generated at the mill makes it necessary to continuously keep up steam, and, of course, a few men are employed on Sunday for that purpose. Appellants, however, belong to the log crew and are not directly engaged in the work of operating the plant. The defense tendered is that it was necessary for the members of the log crew to work on Sunday in order to provide sufficient logs to prevent a shut-down of the mill during work days, and also to furnish enough fuel to keep the mill running continuously.

The agreed statement of facts contains the following stipulation with respect to the fuel proposition: "The boilers at the sawmill are so equipped that they use as fuel the sawdust and refuse which results from the manufacture of logs into lumber. Other fuel cannot be used in them without extensive and expensive alterations." The other stipulation with respect to the necessity for furnishing logs reads as follows: "The sawmill by operating six days per week uses more logs than the log loader, log train and entire logging resources of Lee Wilson & Company could furnish in a like period. At the time mentioned in the information Lee Wilson & Company's entire reserve supply of logs and fuel had become exhausted, and it was necessary for the log loader and log train crew to work on Sunday to keep the mill in operation."

It is also stipulated that during a period of several weeks, including the time appellants are charged with having violated the Sabbath laws, "there was such an excess of rainfall in Mississippi County that the ground in the woods surrounding Wilson, Arkansas, for long distances, and in all the woods from which Lee Wilson & Company did and could obtain a supply of logs, became so soft that it was impossible to get logs from the woods to the railroad. It is impossible to handle logs from the woods to the mill by wagon, or to get them in any other manner than that in use by Lee Wilson & Company."

Appellants attempt to make a showing of necessity on two grounds: one that the fuel ran out and that it was necessary to get the logs on Sunday in order to furnish the mill enough logs, the sawing of which would afford enough refuse to use for fuel on Sunday as well as the other days in the week; and also that it was necessary at this particular time for the log crew to work seven days in the week in order to furnish sufficient logs to keep the mill running six full days, and thus prevent a shut-down. The burden of proof was on appellants to show the existence of necessity which justified their non-observance of the Sabbath. Shipley v. State, 61 Ark. 216.

Counsel for appellants rely mainly upon the case of Turner v. State, 85 Ark. 188, 107 S.W. 388, but we do not think that there is sufficient similarity in the facts of that case to make it controlling in the present case. The accused in that case worked at a large sawmill, which also furnished the power for supplying light and water to the town where the mill was located. The accused was fireman at the mill, and it was his duty to keep up steam to generate enough power to run the machinery which supplied the water and light. Incidentally he cleaned out...