State v. Barnes
| Decision Date | 06 June 1911 |
| Citation | 132 N.W. 215,22 N.D. 18 |
| Court | North Dakota Supreme Court |
Application by the State, on relation of C. W. Temple and Clara Wright, for writ of habeas corpus to Frank Barnes Sheriff of Burleigh County.
Writ quashed, and petitioner remanded to custody of the sheriff.
Writ quashed. Petitioners remanded to the custody of the sheriff with directions.
Niles & Koffel, for relators.
W. L Smith, State's Attorney, opposed.
SPALDING, J. MORGAN, Ch. J., not participating. Honorable W. J. KNEESHAW, Judge of the Seventh Judicial District, sat by request.
It took effect March 3, 1911. On the 22d day of April, 1911, the relators were convicted in the police court of the city of Bismarck of violating the above law, and on the verdict rendered the police magistrate entered judgment against them, imposing a fine of $ 50 each, and adjudging that, on failure to pay such fine, they each be imprisoned in the Burleigh county jail for a period of twenty-five days or until the fine be paid. Bail was fixed on appeal in the sum of $ 250. The specific charge was that of running a moving-picture show and theatrical performance upon Sunday, the 16th day of April, 1911, in said city of Bismarck. They refused to pay the fine imposed, and were duly committed to the county jail in accordance with the judgment. They subsequently applied to the judge of the sixth judicial district for a writ of habeas corpus, which was denied. The writ was issued by this court, and the sheriff directed to have the bodies of the said relators before this court on a date specified, "to do and receive what shall then and there be concerning the said C. W. Temple and Clara Wright." Upon the day specified the sheriff made return to the effect that he detained the petitioners in jail as sheriff and by virtue of a certain commitment issued to him out of the office of the police magistrate of the city, which commitment was set forth in his return and included a copy of the judgment. He also averred that neither of said petitioners had paid or offered to pay the fine of $ 50 so assessed against each of them, and that the period of twenty-five days, as commanded in the judgment and commitment, had not expired.
1. On the hearing a great number of reasons were assigned by the petitioners why they should be discharged from the custody of the sheriff. Most of such reasons relate solely to alleged irregularities occurring on the trial, or to errors of the trial court in its procedure, and are not reviewable on habeas corpus. State ex rel. Mears v. Barnes, 5 N.D. 350, 65 N.W. 688; State ex rel. Peterson v. Barnes, 3 N.D. 131, 54 N.W. 541.
2. It is alleged as a ground for the discharge of the petitioners that they tendered to the respondent sheriff the sum of $ 50 in release of the restraint imposed, and that the same was refused. This allegation is supported by the affidavit of counsel, which is to the effect that on behalf of the relators he tendered the sum of $ 50 to the sheriff in satisfaction of the fine and in payment of the release of the petitioners named, and in accordance with the commitment under which said sheriff holds said petitioners, and that said tender was refused on the ground that it was insufficient. A sufficient answer to this objection is that the commitment as set out in the petition of the relators does not conform to the commitment under which the sheriff returns he was restraining them; that such commitment, in fact, recited that each of the relators was sentenced to pay a fine of $ 50. No claim is presented that any tender was made except of the sum of $ 50 for the release of both defendants, and this was insufficient to satisfy the judgment.
3. It is urged that the law in question conflicts with the state Constitution, § 4 of which provides: "the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall be forever guaranteed in this state, and no person shall be rendered incompetent to be a witness or juror on account of his opinion on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state." Whatever the effect of the provisions of the Penal Code with reference to abstaining from labor on the Sabbath or first day of the week may be, we have little doubt that they, as well as all such statutes, were enacted with the purpose of protecting that part of the public which consists of a large majority, in the exercise of their varying and different methods of religious worship, and in recognition of the sacredness of the Christian Sabbath. A number of the courts of the different states have passed upon this question, and have held that this is a Christian nation, and that laws enacted to prevent the desecration of the Sabbath are valid for that reason, notwithstanding constitutional provisions similar to § 4, supra, and others peculiar to different states. The courts of practically all other states have sustained such statutes as a legitimate exercise of the police power, intended to promote the welfare, morals, and sanitary condition of the people. Many of these courts appear to have avoided determining its relation to the question of religion. We do not deem it necessary to pass upon that question; but, in view of this being the first time the law has been questioned in this court, a brief reference to the history of legislation on the subject may not be inappropriate, and a similar reference to a few of the decisions of other jurisdictions will throw some light upon the general subject.
The early Christians substituted the first day of the week, or Sunday, for the Jewish Sabbath, or seventh day of the week, and it has since been observed as a day of rest and worship in Christian lands, and, we think, generally by civilized peoples. Legislation on the subject was first had in Rome, about A. D. 321, when Constantine the Great commanded all judges and inhabitants of cities to rest on the venerable day of the Sun. Under Theodosius II., 425, games and theatrical exhibitions were prohibited, and about a century later all labor was prohibited on that day. In England laws of this kind were in force in the reign of Athelstan, 925 to 940 A. D. The statute of 29 Chas. II., passed in 1678, seems to have laid the foundation for laws on the subject in England and in many states of this country. It provided that no craftsman, artificer, workman, laborer, or other person whatsoever should do or exercise any worldly labor, business, or work of their ordinary callings upon the Lord's day, or any part thereof (works of necessity and charity excepted), and placed prohibitions upon public sales on the Lord's Day. Fairs were prohibited in the reign of Henry VI. and amusements in the first year of Charles I. On the immigration from England to America the act of 1678 was taken as a model in most of the colonies, its terms, however, being varied somewhat; but a Sunday law was enacted in each of the colonies, and such a law is found in the statutes of every state in the Union. It has been attacked in very nearly every state, and almost as often sustained. Where not sustained, courts have based their decisions on some peculiar or special feature not applicable here. Without quoting at great length from authorities explaining and sustaining such statutes in some degree or wholly from a religious standpoint, we mention Charleston v. Benjamin, 2 Strob. 508, 49 Am. Dec. 608; Lindenmuller v. People, 33 Barb. 548; Shover v. State, 10 Ark. 259; State v. Ambs, 20 Mo. 214; 2 Bl. Com. 63. Mr. Freeman, in his note, 49 Am. Dec. 617, says: Judge Story asserts that the Christian religion is the religion of liberty, and may well be regarded as the true basis of our popular form of government, and that at the adoption of the Constitution, and the amendment to it which provides that Congress shall pass no law respecting an establishment of...
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