State v. McElhinney, 326
| Decision Date | 04 April 1950 |
| Docket Number | No. 326,326 |
| Citation | 88 Ohio App. 431,100 N.E.2d 273 |
| Parties | , 45 O.O. 225 STATE v. McELHINNEY. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. The common law of England making Sunday a dies non juridicus is not a part of the common law of Ohio.
2. In the absence of statutory prohibition, which does not exist in Ohio, judicial acts performed on Sunday are not void.
3. The actions of a justice of the peace in accepting a plea of guilty from a defendant and pronouncing sentence thereon on Sunday are not void.
4. However, the full functioning of a court on Sunday, necessary in the trial of cases, involving the attendance of the clerk, bailiff, jurors and witnesses, the labors of a janitor and the manifold activities of such proceeding might not only violate the statutes against the performance of common labor on Sunday but also so outrage the customs of a community as to constitute an abuse of discretion such as to make the proceedings voidable and warrant a vacation thereof.
Fred R. Wickham, Delaware, for appellant.
Clyde E. Lewis, Prosecuting Atty., Delaware, for appellee.
This is an appeal on question of law from a judgment of the Court of Common Pleas of Delaware County, affirming a judgment of a justice of the peace overruling a motion for a new trial, based solely on the ground that the arrest, plea of guilty and sentence of the defendant on a misdemeanor charge took place on Sunday, October 17, 1948.
The assignment of error is as follows:
'The court erred in affirming the judgment of the justice of the peace for Delaware township, Delaware county, Ohio, wherein said justice overruled the motion of the defendant-appellant for a new trial and adhered to his judgment accepting defendant's plea and sentecing him on Sunday, October 17, 1948.'
It is not contended that these proceedings were against the will and over the objection of the defendant, and it is admitted in argument that he desired quick action until the terms of a heavy sentence made the procurement of counsel and challenging action desirable.
The sole question involved is whether the courts of Ohio may take judicial action on Sunday. It is admitted that there is no statutory law in this state prohibiting courts from functioning on Sunday; and that the Sunday laws which we have, such as prohibiting common labor on Sunday, do not include judicial acts.
The contention is that under the common law of England Sunday is a nonjudicial day or dies non juridicus and as such all judgments pronounced by courts on that day are void; that this principle of the common law is the law of Ohio; and that if this is not so the appeal has no merit.
It is alleged that there are no decisions by our Supreme Court directly in point binding upon this court. This perhaps is true except as certain of the decisions hereinafter referred to contain statements of principle and arguments which are true and persuasive. Many decisions are cited from other states holding that judicial acts on Sunday are void. Many of these are based upon specific statutory enactment. In some states, it is true, the decisions are based squarely upon the common law.
Exhaustive and helpful briefs have been filed by counsel herein and numerous authorities cited from texts and other states as well as our own. It would serve no useful purpose to enter into a detailed analysis of these cases as, in our opinion, two or three Ohio cases are decisive of the question herein presented, not because they are in direct point, but because the principles and arguments therein expounded are pertinent and persuasive and are arrows that point the way which ought to be followed.
In the case of Bloom v. Richards, 2 Ohio St. 387, it was held that a contract entered into on Sunday was not for that reason void at common law. However, in the statement of principles therein the following appears:
'But even were such a contract void by the common law of England, it would not necessarily follow that it is void in Ohio.
'Christianity is a part of the common law of England, but, under the provisions of our Constitution, neither Christianity nor and other system of religion is a part of the law of this state.
The case of State v. Thomas, 61 Ohio St. 444, 56 N.E. 276, 279, 48 L.R.A. 459, involved the question, among others, whether a conviction based upon an indictment returned by a grand jury which was impaneled and sworn of Labor Day is invalid. Labor Day is designated by statute as a holiday ' and for all purposes whatever considered as the first day of the week.' The second paragraph of the syllabus of that case is as follows:
'Construing section 457 of the Revised Statutes, with section 4446-2, which makes the first Monday in September a holiday to be known as 'Labor Day', it is not unlawful to hold the court of common pleas on that day, when the judges of the district, in the exercise of their powers under the first of these sections, have fixed that day for the commencement of the term; and an indictment found and returned by a grand jury impaneled and sworn [in] on that day is not on that account, invalid'
In the course of the opinion, at pages 465 and 466 of 61 Ohio St., at page 279 of 56 N.E., the court states:
'If it be conceded that the statute places Labor Day in the same category with Sunday for all purposes does it follow that a grand jury impaneled on that day is an illegal body without authority to thereafter hear evidence and find indictments?
The distinctive principle established by the case of Bloom v. Richards, 2 Ohio St. 387, is that Sunday laws are mere civil regulations for the good of society, and not designed to enforce or require any religious observance of the day; and, that being penal in their nature, such laws will not be extended by construction beyond their plain import; so that, whatever act may be lawfully doen on any other day of the week is equally lawful on Sunday, unless its performance on that day is forbidden by statute. Our statute goes no further than to the prohibition, on that day, of common labor, the arrest of persons on civil process, the selling of intoxicating liquors, and certain shows, games, and sports. It was held in that case that the making of a contract for the sale of land did not come within the prohibition against common labor on Sunday, and the specific performance of such a contract made on that day was enforced. The case was thoroughly considered, and it is shown by Judge Thurman, in an opinion of great research, that the principles stated are maintained by the great weight of authority in this country, and that under constitutions like ours an enactment could not be sustained whose purpose was simply to enforce the observance of Sunday as a religious duty. It is generally held that statutes which in terms require the closing of public offices on Sunday do not prevent the performance of judicial duties by judges on that day. There is no provision in our statutes, as there is in those of many of the states, and was in 29 Car., II c. 7, under which most of the English decisions on the subject were made, forbidding the holding of courts or judicial proceedings on Sundays or holidays, or requiring public offices to be closed, or all secular business suspended on that day; and the omission of such provisions from our statutes, in view of their presence in the statutes of other states, and especially since the decision of Bloom v. Richards, supra, which has been accepted as the law of this state for nearly half a century, leads to the conclusion that the legislature has not deemed it advisable to incorporate either of them into the laws of the state. Certain it is that neither of them is embraced in the term 'common labor,' as used in our statute. Where the transaction of judicial business on Sundays or holidays is expressly forbidden by statute, acts of a ministerial character on those days are held lawful; such as the issue of a warrant for the apprehension of a criminal and his admission to bail, the receiving of a verdict and committing the defendant for sentence, the issue and service and service of civil process, and many other acts of a similar nature. All of which is a recognition of the rule already stated that whatever acts may be lawfully done on other days are also lawful when performed on Sunday or a holiday, except when and in so far as their performance on those days is prohibited by statute. * * * Our attention has also been called to the case of [Spiedel] Grocery Co. v. Armstrong, 8 Ohio ...
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