Richmond v. Moore

• Decision Date: 30 September 1883
• Citation: Richmond v. Moore, 107 Ill. 429, 1883 WL 10319, 47 Am.Rep. 445 (Ill. 1883)
• Parties: W. E. RICHMONDv.CHARLES K. MOORE.
• Court: Illinois Supreme Court

107 Ill. 429

1883 WL 10319 (Ill.)

47 Am.Rep. 445

W. E. RICHMOND

v.CHARLES K. MOORE.

Supreme Court of Illinois.

Filed at Ottawa Jun. 16, 1883.Rehearing denied September Term, 1883.

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding.

Mr. E. A. OTIS, for the appellant:

In King v. Fleming, 72 Ill. 21, it was held that a note signed on Sunday, but not delivered until Monday, was not void, as it was not executed until its delivery. The same was held in respect of a deed, in Love v. Wells, 25 Ind. 503. In Langabier v. Fairbury, Pontiac and Northwestern R. R. Co. 64 Ill. 243, the issuing of an injunction on Sunday was justified on the ground of necessity. In People v. Johnson, 31 Ill. 469, the taking of a recognizance on that day was justified on the same ground. In Baxter v. People, 3 Gilm. 368, the court justified receiving a verdict on Sunday, but held that a judgment entered on that day was void. In Thomas v. Hinsdale, 78 Ill. 279, an attachment issued on Sunday was held void. The statute carefully points out such acts as may be performed on Sunday, such as works of necessity and charity; carriers may discharge passengers and freight, ferries may carry travelers, and so, by implication as well as expressly, it prohibits other kinds of labor, both of body or brain. There are statutes on this subject in force in nearly all the States, based largely on 29th Charles II, chap. 7, and all substantially alike, and the decisions are uniform that contracts made on Sunday, unless subsequently ratified, or unless they come within some of the exceptions named in the statute, are absolutely null and void. Holcomb v. Donley, 51 Vt. 428; Stevens v. Wood, 127 Mass. 123; Meader v. White, 66 Maine, 90; Ellis v. Hammond, 57 Ga. 179; Clough v. Goggin, 40 Iowa, 325; Tucker v. West, 29 Ark. 386; Varney v. French, 19 N. H. 233; O'Donnell v. Sweeny, 5 Ala. 468; Brimhall v. Van Campen, 8 Minn. 13; Adams v. Hamell, 2 Doug. (Mich.) 73; Banks v. Werts, 13 Ind. 203.

That the act in question is remedial, and not a penal statute, is well settled. Smith v. Wilcox, 24 N. Y. 354; Northrup v. Foot, 14 Wend. 249; Fennell v. Ridles, 5 Barn. & Cress. 406; Smith v. Sparrow, 4 Bing. 84.

Mr. WILLIAM H. CONDON, for the appellee:

The common law of England, and the statutes and acts to supply its defects, with certain exceptions, which are the rule of decision in this State, were in force in England prior to the fourth year of James I, 1607. There was no Sunday law in force at that time in England, and this State has enacted none, except such as prevent disturbance on Sunday.

At common law Sunday differed from no other day, and all business transacted on that day was valid, with the exception of not being a day for legal proceedings. Rex v. Brotherton, Stra. 702; Mackally's Case, 9 Rep. 66b, Cro. Juc. 280; Waite v. The Hundred of Stokes, Id. 496; Drury v. Defontaine, 1 Taunt. 131; Merritt v. Earle, 31 Barb. 41. Contracts made on Sunday were held valid in these cases: Adams v. Gray, 19 Vt. 358; Miller v. Bousler, 4 E. D. Smith, 234; Boynton v. Page, 13 Wend. 425; Greenbury v. Williams, 9 Abb. 206; Shank v. Shoemaker, 18 N. Y. 480; Morris v. Cranes, 4 Ch. sec. 6; Myers v. Meinrath, 3 Am. R. 368.

Where Sunday laws are in force against persons working in their ordinary calling, a sale of goods on Sunday, which was not in the ordinary calling of the vendor, has been held valid. Drury v. Defontaine, 1 Taunt. 131; 2 Parsons on Contracts, 757, and notes.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought in the Superior Court of Cook county. There was a special and the common counts. It was averred in the special count that a contract was entered into between the plaintiff and defendant that the former was to sail the vessel “Scotia” for the latter, during the season of 1880, for the sum of $1000, but defendant prevented plaintiff from performing the contract, whereby he had sustained loss, etc. Defendant pleaded the general issue, and gave notice that he would, under that plea, prove, on the trial, that the contract was not to be performed within one year from the time it was entered into, and there was no memorandum, in writing, of its terms, signed by the parties; and that the agreement was made on representations by plaintiff that he was competent, and possessed the requisite skill and knowledge to fill the position of master of the vessel; that he was a man of honor, integrity, and of good repute, and that such assurances were untrue and false, and the plaintiff was discharged for good cause. The case was submitted to the court for trial, by consent of the parties, without a jury. The court found the issues for plaintiff, assessed his damages at $566, and rendered a judgment in his favor for that sum, and costs. An appeal was perfected to the Appellate Court, where the judgment was affirmed, and the case is brought here by appeal, on a certificate from the Appellate Court.

On the trial in the Superior Court the evidence tended to prove the agreement was entered into on Sunday. Defendant, on this evidence, asked the court to hold that the contract was prohibited by our statute, and was void, but the Superior Court refused to so hold, and the principal question discussed by counsel is, whether, under our statute, such a contract is void, or binding on the parties.

The provision of our statute which it is claimed renders this contract void, is the 261st section of our Criminal Code. The portion of that section claimed to render the contract void, is this: “Whoever disturbs the peace and good order of society by labor (works of necessity and charity excepted) or by amusements or diversion on Sunday, shall be fined not exceeding $25.” It contains other exceptions, of which is this: “Nor to prevent the due exercise of the rights of conscience by whomsoever thinks proper to keep any other day as a Sabbath.” The common law did not prohibit the making of such contracts. In Drury v. Defontaine, 1 Taunt. 136, Lord MANSFIELD, in delivering the opinion, said: “It does not appear that the common law ever considered those contracts as void which were made on Sunday.” Judgment was accordingly given for the price of a horse sold on that day. And the doctrine is supported by the cases of Comyns v. Boyer, Cro. Eliz. 485, Rex v. Brotherton, Strange, 702, The King v. Whitnash, 7 B. & C. 596, and Bloxsome v. Williams, 3 Id. 232,--and this is the doctrine of all the cases, English or American, with perhaps no more than one or two exceptions that announce a different doctrine. The doctrine that contracts made on Sunday are void, depends, therefore, alone on statutory enactments, and in the various States of the Union the statutes vary, in language or substance, and the decisions of the different courts have been based on the phraseology of their several statutes. The common law, on the other hand, seems always to have prohibited all judicial proceedings on Sunday. Before the adoption of the 29th Car. II, chap. 257, legal process could be served on that day, as well as other ministerial acts pertaining to legal proceedings. (See Comyn's Digest, book 3, title “Temps.”) And such has been held to be the law in this State. ( Baxter v. The People, 3 Gilm. 368.) There is at the common law a well defined distinction between judicial and individual or ministerial acts performed on Sunday.

The 29th Car. II, chap. 257, seems to be the basis of the enactments of the various States of the Union. It is this: “That no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, business or work, on the Lord's day.” It contains exceptions, of which are works of necessity or charity. A mere glance at that and our statute will show that they are materially different. That prohibits labor and business; ours only prohibits labor or amusement that disturbs the peace and good order of society. The offence by that statute is the performance of labor or business, and by ours it is the disturbance of the peace and good order of society. The British statute is much more comprehensive in its purposes and language than ours. Ours only prohibits labor that disturbs the peace and good order of society, not naming business, whilst the British statute renders the mere act of labor or business penal.

Although we are required, under the first section of the chapter entitled ““Statutes,” to give all words, clauses and phrases found in all laws a liberal construction, to carry out the legislative intention, we have no power to inject provisions into the statute which were omitted by the law makers. We are, therefore, required by this rule to ascertain and enforce the intention of the statute, and a careful examination of our statute unmistakably shows the intention to be to preserve the community from being disturbed by the labor or amusements of other persons. The language will bear no other construction. The 29th Car. II, was no doubt the statute from which ours was modeled, and when the legislature made such clear and substantial changes in the provision, we are irresistibly impelled to the conclusion that it was not intended to adopt the provisions of that act, or the construction given it by the British courts. The change in the language is so obvious and important that it repels all presumption that the intention was to adopt the British statute in its full scope. Our statute, by its very terms, is for the preservation of the peace and good order of society from disturbance. It is not, nor can it be, held to have been the purpose of the statute to compel the performance of a religious duty, however necessary to the future welfare of the individual failing to perform it.

But the statute does protect the religious community from being disturbed in their devotions and worship by the...