State v. Chicago, B. & Q. R. Co.

• Court: Missouri Supreme Court
• Writing for the Court: Botsford
• Citation: State v. Chicago, B. & Q. R. Co., 143 S.W. 785, 239 Mo. 196 (Mo. 1912)
• Decision Date: 02 January 1912
• Parties: STATE v. CHICAGO, B. & Q. R. CO.

143 S.W. 785

STATE v. CHICAGO, B. & Q. R. CO.

Supreme Court of Missouri.

January 2, 1912.

Rehearing Denied January 27, 1912.

1. SUNDAY (§ 1)—STATUTES—PURPOSE.

The Missouri Sunday laws have regard to that day as a day of rest, and not as to its religious character.

2. SUNDAY (§ 7)—STATUTES—RULE OF CONSTRUCTION —WORKS OF "NECESSITY."

The word "necessity" in Rev. St. 1899, § 2240, prohibiting labor on Sunday, excepting works of necessity, should be construed reasonably and neither too literally nor too liberally.

3. SUNDAY (§ 7)—LABOR—WORKS OF "NECESSITY."

Under Rev. St. 1899, § 2240, prohibiting labor on Sunday, but excepting works of "necessity," a physical and absolute necessity is not required, but it is sufficient if there is a moral fitness or propriety in doing the work on that day, under the circumstances of the particular case.

4. SUNDAY (§ 7)—LABOR—WORKS OF "NECESSITY."

Under Rev. St. 1899, § 2240, prohibiting labor on Sunday, but excepting works of necessity, carrying freight is a work of necessity.

5. RAILROADS (§ 227)—TRAIN SERVICE—CONSTRUCTION OF STATUTES—"EVERY DAY."

The words "every day" in the act of March 19, 1907 (Laws 1907, p. 180), requiring all persons or corporations operating railroads to run at least one regular passenger train over all lines each way "every day," includes Sunday, since it is not unlawful for travelers to ride on a railway train on Sunday, nor for a railroad company to carry them on Sunday, and hence a railroad company that fails to run any trains over a line on Sunday is liable for the penalty prescribed for violation of the act.

6. CONSTITUTIONAL LAW (§ 84)—RAILROADS (§ 227)—CIVIL RIGHTS—RELIGIOUS LIBERTY.

Act of March 19, 1907 (Laws 1907, p. 180), so construed as to require the running of at least one regular passenger train each way over all railroad lines on Sunday the same as on any other day, is not in violation of any provision of the state Constitution relating to religious liberty, since it does not prevent any one who wishes to observe that day as a day of worship from doing so.

7. CONSTITUTIONAL LAW (§ 241) — EQUAL PROTECTION OF LAWS — REGULATION OF RAILROADS.

Act of March 19, 1907 (Laws 1907, p. 180), requiring the running of at least one regular passenger train each way every day over all railroad lines, is not invalid on the ground that it is discriminatory, or that it denies to railroads the equal protection of the laws, since it applies equally to all railroads of the state.

8. COMMERCE (§ 58)—INTERSTATE COMMERCE —POWERS OF STATE.

Act March 19, 1907 (Laws 1907, p. 180), requiring the running of at least one regular passenger train each way every day over all railroad lines, is not invalid as a regulation of interstate commerce.

9. RAILROADS (§ 227)—REGULATION—DUTY TO OPERATE—COMPELLING PERFORMANCE.

A railway company may be compelled by law to furnish trains for the carriage of passengers, and loss to the railroad is no defense to the enforcement of the law.

Lamm, Ferriss, and Graves, JJ., dissenting.

In Banc. Appeal from Circuit Court, Worth County; Wm. C. Ellison, Judge.

The Chicago, Burlington & Quincy Railroad Company was convicted of a violation of the act of March 19, 1907 (Laws 1907, p. 180), requiring railroads to run at least one train a day stopping at all stations, and it appeals. Affirmed.

Kelso & Kelso and Spencer & Nelson, for appellant. Herbert S. Hadley, Atty. Gen., Elliott W. Major, Atty. Gen., John Kennish, Asst. Atty. Gen., and F. G. Ferris, Asst. Atty. Gen., for the State.

BOTSFORD, Special Judge.

This cause comes by appeal from the Worth county circuit court. At the hearing here, one of the judges of this court, having been of counsel, did not sit, and the remaining six judges being equally divided in opinion, the special judge in the case was appointed. Const. of Mo. art. 6, § 11. The cause is resubmitted by the parties to the court thus constituted. The suit originated by a criminal information to recover a fine for the violation of a statute which was enacted in 1907 (Laws 1907, p. 180), and reads as follows:

"Be it enacted by the General Assembly of the state of Missouri, as follows:

"Section 1. That all persons, copartner-ships, companies or corporations operating any railroad or part of a railroad in this state shall, unless hindered by wrecks or providential hindrance, run at least one regular passenger train each way every day over all lines, or part of a line, of railroad so operated by such person, copartnership, company or corporation in this state, which train shall stop at all regular stations along the line of such railroad for the purpose of receiving and discharging passengers.

"Sec. 2. Any person, copartnership, company or railroad corporation violating the provisions of this act shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not less than one hundred dollars nor more than five hundred dollars for each offense. Approved March 19, 1907."

The information charged defendant company with having failed to run a regular passenger train each way over its line of railroad between Grant City and Worth in said county on July 28, 1907, which day fell on Sunday, the first day of the week. At the trial, a jury was waived and the cause submitted to and decided by the court on an agreed statement of facts, which were the same as the facts stated in the information. It appears from the agreed statement that defendant had and has a railroad between Chariton, Iowa, and St. Joseph, Mo., through said Worth county, with said Grant City and Worth as regular stations, and that defendant habitually ran a regular passenger train each week day each way on its said line, but did not run, and failed and refused to run, any passenger train on said line on said Sunday. Both the information and agreed statement negatived that defendant was hindered from running passenger trains on said Sunday by wrecks or providential hindrance. The points made by the company were that Sunday was not included within said act of 1907, and that, if construed to include Sundays, said act was invalid under the Constitution of Missouri, and also that of the United States. The trial court overruled these points and gave a final judgment against the company finding it guilty and assessing a fine of $100. Those points having been saved by proper exceptions and an overruled motion for a new trial, preserved in a bill of exceptions, are before us on defendant's appeal.

The first point, that Sunday is not included in the act by the use therein of the words "every day," depends for its solution on the question whether the running of trains, as enjoined by the act, is lawful on Sunday the same as on a week day. Sunday is a day of a dual character. It is the Christian's day of worship; it is also the day of rest of men everywhere, irrespective of whether they have or have not a creed or a religious belief. The law does not deal with Sunday as a day of worship, but with it only as a day of rest. The confusion of the two characteristics of the day has doubtless contributed to the large number of conflicting decisions by the courts.

The Missouri Sunday laws have regard to that day as a day of rest, and not to the religious character of the day. They are civil, not religious, regulations, and are based upon a sound public policy which recognizes that rest one day in seven is for the general good of mankind. Hennington v. Georgia, 163 U. S. 299-304, 16 Sup. Ct. 1086, 41 L. Ed. 166. Those laws are sustained as civil, municipal, or police regulations, without reference to the fact that the day of rest is also the Christian's day of rest and worship. State v. Ambs, 20 Mo. 214; State v. Granneman, 132 Mo. 326, loc. cit. 331, 33 S. W. 784; St. Louis v. De Lassus, 205 Mo. 578, loc. cit. 585, 104 S. W. 12; Swann v. Swann (C. C.) 21 Fed. 299; 27 Am. & Eng. Ency. Law (2d Ed.) p. 388; Lindenmuller v. People, 33 Barb. (N. Y.) 548.

The decisions of our courts that Sunday is not included in the four days given for filing a motion for a new trial, are because at common law and under the statutes, with certain exceptions, judicial proceedings cannot take place on Sunday.

At common law, only judicial proceedings on Sunday were unlawful. 27 Am. & Eng. Ency. of Law, p. 389; Merritt v. Earle, 29 N. Y. 116, 86 Am. Dec. 292; Pepin v. Baptiste, 24 R. I. 550, 54 Atl. 47, 60 L. R. A. 626; Eden v. People, 161 Ill. 296, 43 N. E. 1108, 32 L. R. A. 659, 52 Am. St. Rep. 365; Roberts v. Barnes, 127 Mo. 415, 30 S. W. 113, 48 Am. St. Rep. 640. Labor and the making of contracts were not prohibited. Swann v. Swann (C. C.) 21 Fed. 299.

In the above case of Swann v. Swann (C. C.) 21 Fed. 299, which was a case decided in the United States Circuit Court for the Eastern District of Arkansas, the following propositions were adjudged, as appears from the syllabus of the case:

"3. Lord's Day Contracts—Valid in Tennessee, When.—In Tennessee isolated private contracts made on the Lord's Day, outside of the ordinary calling of the parties to them, are valid.

"4. Same—Arkansas Rule.—Prima facie contracts made in Arkansas on the Lord's Day are void; but contracts made in that state on that day between parties who observe as a day of rest any other day of the week, agreeably to the faith and practice of their church or society, are valid.

"5. Same—Common Law.—At the common law, contracts made on the Lord's Day were as valid as those made on any other day.

"6. Public Policy—How Ascertained.—The only authentic and admissible evidence of the public policy of a state, on any given subject, are its Constitution, laws, and judicial decisions.

"7. Lord's Day Acts—Police Regulations. —The Lord's Day acts are not religious regulations; they are a legitimate exercise of the police power, and are themselves police regulations."

The opinion in the case is by Judge Caldwell. That contains a full citation of the authorities, English and American, and an extended...