State v. Dolan

Decision Date10 December 1907
Citation13 Idaho 693,92 P. 995
PartiesSTATE, Respondent, v. W. F. DOLAN, Appellant
CourtIdaho Supreme Court


1. In the exercise of its police power, a state may prohibit the conduct of business on Sunday.

2. The title of the act of March 12, 1907, "An act to set apart Sunday as a day of public rest; to provide for the closing of saloons and other places of business on Sunday; to prohibit the selling, giving away or disposing of any spirituous vinous, malt or intoxicating liquors on Sunday; to provide for the closing of places of public amusement and prohibiting horse-racing on Sunday; and to provide for the punishment of those guilty of violating the provisions of this act, and providing for the disposal of all fines collected under the terms of this act," does not violate article 3, section 16, of the constitution of this state, which provides "Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title," etc.

3. The act of March 12, 1907, prohibiting keeping open on Sunday for the purpose of trade, etc., any shop, store, building, or place of business whatever, and exempting hotels restaurants, livery-stables, stores in selling medicine and supplies for the sick, undertakers, news-stands in the quiet sale and delivery of papers and magazines, nonintoxicating refreshments, candies and cigars, and prohibiting saloons from opening or the sale of intoxicating liquor on Sunday and prohibiting the opening of a theater, playhouse, dancehouse, racetrack, merry-go-round, circus, or show, concert saloon, billiard or pool-room, bowling-alley, variety-hall, or any such place of public amusement, prohibiting horse-racing on Sunday, and providing penalties for violations of the act and prescribing the duties of the prosecuting attorney as to such prosecutions, does not take property without due process of law, does not violate the bill of rights, is not special or local legislation, does not discriminate between different persons, and is not unfair or unreasonable under the constitution.

4. The legislature is the judge of a proper classification under a Sunday rest law, and its discretion will not be interfered with, unless such law violates some provision of the constitution.

5. A law declaring Sunday a day of rest is not unconstitutional, because it does not prohibit all kinds of labor on Sunday.

(Syllabus by the court.)

APPEAL from the District Court of Third Judicial District for Ada County. Hon. Fremont Wood, Judge.

The defendant was convicted of keeping his place of business open on Sunday in violation of section 2 of an act approved March 12, 1907. Affirmed.


C. C. Cavanah, J. J. Blake, J. P. Gray, and H. P. Knight, for Appellant.

Section 16 of article 3 of our constitution was not complied with by the legislature, in attempting to adopt either a Sunday rest law or to provide for religious observance, as more than one subject and matter are embraced therein, and the title does not fairly express the object of the enactment. (Cooley's Const. Lim., 7th ed., 119; Turner v. Coffin, 9 Idaho 338, 74 P. 962; Katz v. Herrick, 12 Idaho 1, 86 P. 873; Pioneer Irr. Dist. v. Bradbury, 8 Idaho 310, 101 Am. St. Rep. 201, 68 P. 295; Clark v. Board Co. Commrs., 54 Kan. 634, 39 P. 225; Ryno v. State, 58 N.J.L. 238, 33 A. 219; State v. McCann (Tenn.), 4 Lea, 1; Spaulding L. Co. v. Independence Imp. Co., 42 Or. 394, 71 P. 132; State v. Stone, 24 Nev. 308, 53 P. 497.)

The title to the act is deceptive and misleading, as it does not clearly express the subject of the legislation and does not fit the body of the bill. (Katz v. Herrick, supra; State v. Coffin, supra; People v. Allen, 42 N.Y. 404-420.)

The title to this act is too general, and therefore deceptive. (Sneath v. Mager, 64 N.J.L. 94, 44 A. 983; Burnett v. Dean, 63 N.J. Eq. 253, 49 A. 503, 51 A. 1023; Coutieri v. City New Brunswick, 44 N.J.L. 58.)

Section 2 of said act is invalid and unconstitutional, in that it is in violation of the fourteenth amendment of the federal constitution, as it deprives the defendant of his property without due process of law, denies him the equal protection of the law, and abridges the privileges and immunities of the citizens and the defendant as guaranteed by said fourteenth amendment; also is in violation of section 1 of article 1 and section 19 of article 3 of the constitution of Idaho as it deprives the defendant of the right of acquiring, possessing and protecting his property, and is local, special and class legislation, and unlawful discriminates between citizens engaged in selling goods, wares and merchandise and those engaged in any other lawful business (Ex parte Newman, 9 Cal. 502; French v. Teschemaker, 24 Cal. 518; Ex parte Westerfield, 55 Cal. 550, 36 Am. Rep. 47; Ex parte Jentzsch, 112 Cal. 468, 44 P. 803, 32 L. R. A. 664; 1 Tiedeman on Police and Federal Control, 209-215; City of Pasadena v. Stimson, 91 Cal. 238, 27 P. 604; Rauer v. Williams, 118 Cal. 401, 50 P. 691, 693; Eden v. People, 161 Ill. 296, 52 Am. St. Rep. 365, 43 N.E. 1108, 32 L. R. A. 659, 664; Millett v. People, 117 Ill. 294, 57 Am. Rep. 869, 7 N.E. 631; Keim v. Chicago, 46 Ill.App. 445; Cooley's Const. Lim., 5th ed., 484-487; City of Denver v. Bach, 26 Colo. 530, 58 P. 1089, 46 L. R. A. 848; State v. Granneman, 132 Mo. 326, 33 S.W. 784; Ragio v. State, 86 Tenn. 272, 6 S.W. 401; Story on the Constitution, 5th ed., 1590; Garrabad v. Dering (1893), 84 Wis. 585, 36 Am. St. Rep. 948, 54 N.W. 1104, 19 L. R. A. 858; May v. People, 1 Colo. App. 157, 27 P. 1010, 1112; State v. Goodwill, 33 W.Va. 179, 25 Am. St. Rep. 863, 10 S.E. 285, 6 L. R. A. 623; Wynehamer v. People, 13 N.Y. 378; Frorer v. People, 141 Ill. 171, 31 N.E. 395, 16 L. R. A. 492.)

The legislature may not, under the guise of protecting public interest, arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police power is not final or conclusive, but is subject to the supervision of the courts. (Lawton v. Steele, 152 U.S. 133, 38 L.Ed. 385, 14 S.Ct. 499; Gulf, Col. & S. F. Ry. Co. v. Ellis, 165 U.S. 150, 41 L.Ed. 666, 17 S.Ct. 255; Yick Wo v. Hopkins, 118 U.S. 220, 30 L.Ed. 220, 6 S.Ct. 1064; Cooley's Const. Lim., 1st ed., p. 391; People v. Gilson, 109 N.Y. 389, 4 Am. St. Rep. 465, 17 N.E. 343; Barbier v. Connelly, 133 U.S. 27, 28 L.Ed. 923, 5 S.Ct. 357.)

Section 2 of said act is unreasonable, harsh and oppressive, in that it does not exempt from being performed on Sunday works or acts of necessity and charity.

Section 1 of this act does not contain nor does the act contain any penalty by way of enforcement. Section 1 is not in any sense a law unless some penalty can be inflicted or punishment imposed for a violation thereof. A penalty must be especially created and imposed by statute and can never be raised by implication. (Am. & Eng. Ency. of Law, 2d ed., 55; In re McDonough, 49 F. 360; Franch v. Foley, 11 F. 801.)

J. J. Guheen, Edwin Snow, J. H. Peterson, and B. S. Crow, for Respondent.

In the case of State v. Doherty, 3 Idaho 384, 29 P. 855, this court laid down the correct rule of construction, a rule to which it has ever since closely adhered and a rule upon which we can find no conflict in any of the courts. The court said: "It is sufficient if the act treats of but one general subject and the subject expressed in the title." (Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 101 Am. St. Rep. 201, 68 P. 295; State v. Board of Commrs., 21 Nev. 235, 29 P. 974; Northern Counties Investment Trust v. Sears, 30 Or. 388, 41 P. 931, 35 L. R. A. 188; State v. Jones, 9 Idaho 693, 75 P. 819; Gerding v. Commrs., 13 Idaho 444, 90 P. 357.)

"The generality of the title is, therefore, no objection to it so long as it is not made a cover to legislation incongruous in itself and which by no fair intendment can be considered as having a necessary and proper connection." (Cooley's Const. Lim., 6th ed., 172; State v. Shaw, 22 Or. 287, 29 P. 1028; O'Keefe v. Webber, 14 Or. 55, 12 P. 74; Bowman v. Cockerill, 6 Kan. 311; Howland Coal Co. v. Brown, 13 Bush (Ky.), 681; Montgomery etc. Assn. v. Robinson, 69 Ala. 413; State v. County Judge, 2 Iowa 280; State v. Courtney, 27 Mont. 378, 71 P. 308.)

There can no longer be any doubt but that Sunday closing laws are constitutional and valid as a legitimate and proper exercise of the police power of the state. Nearly all the states in the Union have passed such laws, and they have been uniformly held to be constitutional, except in the single case of Ex parte Newman, 9 Cal. 502. A few years subsequently the case of Ex parte Newman was expressly overruled. (See Ex parte Andrews, 18 Cal. 678; Cooley's Const. Lim. 734.)

In the great discretion allowed the legislature in the exercise of its police power for the health, morals and general welfare of the public, the legislature thought it advisable to close shops and places of business on Sunday. The exercise of this discretion is a matter entirely with the legislature and the people they represent. The judicial department of the state has nothing to do with the manner in which this discretion shall be exercised. (Ex parte Koser, 60 Cal. 189; Cooley's Const. Lim., 6th ed., 153.)

A law affecting all alike who are in the same class is not class or special legislation. (Boise Land & Irr. Co. v. Stewart, 10 Idaho 38, 77 P. 25, 321; Brooks v. Hyde, 37 Cal. 366; Barbier v. Connolly, 113 U.S. 27, 28 L.Ed. 923, 5 S.Ct. 357.)

"The fourteenth amendment does not prohibit legislation which is limited either in the objects to which it is directed or by the territory...

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