Scoles v. State

• Decision Date: 30 October 1886
• Citation: 1 S.W. 769
• Parties: SCOLES <I>v.</I> STATE.
• Court: Arkansas Supreme Court

Page 769

1 S.W. 769

SCOLES

v. STATE.

Supreme Court of Arkansas.

October 30, 1886.

Appeal from Washington circuit court.

J. D. Walker, for appellant. Dan W. Jones, Atty. Gen., for the State.

COCKRILL, C. J.

This is an appeal from a conviction for Sabbath-breaking. The sufficiency of the indictment was questioned by a motion in arrest of judgment. The particular act that constitutes the alleged offense is not set out. The indictment charges merely that the defendant, "on the third day of May, 1885, the said day being Sunday, unlawfully was found laboring and performing other services; the same not then and there being of customary household duty, of daily necessity, comfort, or charity." The language of the statute which creates the offense is employed in the indictment, and nothing more is required in a statutory misdemeanor when the general language of the statute is sufficient to apprise the defendant of the nature of the accusation against him. Glass v. State, 45 Ark. 173; State v. Snyder, 41 Ark. 226; State v. Hutson, 40 Ark. 361; State v. Witt, 39 Ark. 216. We cannot say that the indictment is insufficient under this rule, but think that the defendant would be enabled to prepare his defense and plead the judgment in bar of a second prosecution for the same offense. Emerson v. State, 43 Ark. 372.

The statute under which this conviction was had, comes to us from the Revised Statutes of 1838. It contained this provision, which was carried forward into the Revision of 1884 as section 1886, viz.: "Persons who are members of any religious society, who observe as Sabbath any other day of the week than the Christian Sabbath or Sunday, shall not be subject to the penalty of this act, so that they observe one day in seven agreeably to the faith and practice of their church or society." But in 1885, before the commission of the offense charged in the indictment, the legislature passed an act, the only part of which that is material to this prosecution is as follows: "That section 1886 of Revised Statutes of Arkansas be, and the same is hereby, repealed." Acts 1885, p. 37.

The proof showed that the appellant was found painting a church on a Sunday. He offered to prove that he was a member of a religious society known as the "Seventh-day Adventists," one of the tenets of which is the observance of Saturday as the Sabbath instead of Sunday, and that he had regularly refrained from all secular work and labor on Saturday agreeably to his religious faith and that of his church. It is argued that the court erred in rejecting this testimony, because, as it is said, the effort to repeal section 1886 was ineffectual; and that, if it was not, the law, without the exception made by that section, gives a preference to other religious denominations over that of the appellant, within the meaning of section 24 of article 2 of the state constitution, which provides that "no preference shall ever be given by law to any religious establishment, denomination, or mode of worship above any other;" and, moreover, denies to him the equal protection of the law within the meaning of the federal constitution.

The argument against the repeal of section 1886 is based upon the idea that, if the law is read without that provision, the penalty of the statute is "extended" to the appellant without a re-enactment of the law, and that such a method of legislation is prohibited by the following provision of the constitution, viz.: "No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length." Section 25, art. 5, Const. It will be observed that the provision does not in terms prohibit the repeal of a law by reference to its title, and the prohibition can be extended by implication only. The power of the legislature is not to be cut off by inference save when the inference is too strong to be resisted. Vance v. Austell, 45 Ark. 400. We look to the constitution, not to see whether power is granted, but to ascertain if it is withheld; and, when there is a doubt as to the existence of a power, it must be resolved in favor of the legislative action. It is well settled that this provision does not make it necessary, when a new statute is passed, that all prior laws modified, affected, or repealed by implication by it should be reenacted. If we should so hold, a large part of the laws of this state would have to be re-enacted and republished at every session of the legislature, and some of them many times over. No human foresight or diligence could determine the extent of the alteration and modification that would be effected by the acts of a single session; and, if it could, it would not then prevent the necessity of the re-enactment and republication biennially of almost the entire body of the statute law. This would be an absurd construction; and it is the reasonable construction the provision should receive, with a view to giving it the effect intended by its framers. The mischief designed to be remedied by a constitutional provision nearly the same in effect as this one was pointed out by this court in the case of Perkins v. Duval, 31 Ark. 236, and may be found more elaborately stated in Cooley, Const. Lim. *151, and cases there cited. What is complained of as an evil here is not laid down as such in any case to which we have been referred. If the legislature had undertaken to amend section 1886, the provision under consideration would have required the section as amended to be set forth in extenso, and the old section, upon the passage of the new one, would have been repealed, if not expressly, then by implication. State v. Ingersoll, 17 Wis. 651. In that event there would have been no necessity for re-enacting the other parts of the chapter in which the section is found. When there is an express repeal of the section, without a substitute for or an amendment to it, what greater necessity is there for re-enacting the other sections that are affected only incidentally by the repeal? The section has been repealed, and the chapter is intact without it. Commercial Bank v. Markham, 3 La. Ann. 698; Chambers v. State, 25 Tex. 307; State v. Ingersoll, supra; Sedg. St. & Const. Law, (2d Ed.) 532.

The constitutionality of this law, as originally enacted, has been repeatedly affirmed by this court in both civil and criminal cases. Shover v. State, 10 Ark. 259; State v. Anderson, 30 Ark. 131; Tucker v. West, 29 Ark. 386; Merritt v. Robinson, 35 Ark. 483. No reference was ever made to the exception contained in section 1886 for the purpose of maintaining its validity, and we are cited to no case or authority where the view is...