State v. Nichols

• Decision Date: 16 June 1902
• Citation: 69 P. 372,28 Wash. 628
• Court: Washington Supreme Court
• Parties: STATE v. NICHOLS.

69 P. 372

28 Wash. 628

STATE v. NICHOLS.

Supreme Court of Washington

June 16, 1902

Appeal from superior court, Walla Walla county; Thos. H. Brents Judge.

Dorsey Nichols was charged with keeping open a place of business for sale, etc., of goods on Sunday. From a judgment sustaining a demurrer to the information, the state appeals. Reversed.

Sharpstein & Sharpstein, for respondent.

REAVIS, C.J.

Defendant was charged with the crime of 'keeping open a place of business for sale and trade in goods, wares, and merchandise on Sunday, committed as follows: * * * on the 21st day of July, 1901, in the county of Walla Walla, * * * to wit, a store, for the purpose of sale and trade in goods, wares, and merchandise, upon the first day of the week, commonly called Sunday.' Upon arraignment the information was demurred to upon the the ground that the same does not charge any crime or offense against the laws of the state of Washington. The demurrer was sustained, and the state appeals.

The information is framed under section 7251, Ballinger's Ann. Codes & St., which is as follows: 'It shall be unlawful for any person or persons of this state to open on Sunday, for the purpose of trade or sale of goods, wares, and merchandise, any shop, store, or building, or place of business whatever: provided, that this section shall apply to hotels only in so far as the sale of intoxicating liquors is concerned, and shall not apply to drug stores, livery stables, or undertakers. Any person or persons violating this section shall be guilty of a misdemeanor and on conviction thereof shall be fined in any sum not less than twenty-five dollars nor more than one hundred dollars.' The only question presented for review is the validity of the statute. The first objection to the statute urged by counsel for defendant seems to suggest that Sunday laws are not within the general police powers of the state. It is appropriate to observe here of this contention that the uniform expression of judicial opinion, in an unbroken current for centuries with apparently a single exception, classes these laws peculiarly within the police powers of the state. The learning and industry of counsel have favored the court with one case entertaining this exceptional view (Ex parte Newman, 9 Cal. 502), which has subsequently been overruled in that jurisdiction in Ex parte Andrews, 18 Cal 678. In Bloom v. Richards, 2 Ohio St. 387, the court, by Judge Thurman, observed of a Sunday law: 'We are, then, to regard the statute under consideration as a mere municipal or police regulation, whose validity is neither strengthened nor weakened by the fact that the day of rest it enjoins is the Sabbath day. Wisdom requires that men should refrain from labor at least one day in seven, and the advantages of having the day of rest fixed, and so fixed as to happen at regularly occurring intervals, are too obvious to be overlooked. It was within the constitutional competency of the general assembly to require this cessation of labor and to name the day of rest.' Mr. Justice Field, in Ex parte Newman, 9 Cal. 502, referring to the same subject, said: 'Its requirement is a cessation of labor. In its enactment the legislature has given the sanction of law to a rule of conduct which the entire civilized world recognizes as essential to the physical and moral well-being of society. Upon no subject is there such a concurrence of opinion among philosophers, moralists, and statesmen of all nations as on the necessity of periodical cessations from labor. One day in seven is the rule, founded in experience and sustained by science. * * * The prohibition of secular business on Sunday is advocated on the ground that by it the general welfare is advanced, labor protected, and the moral and physical well-being of society promoted.' To the same effect are the following decisions and authorities: Frolickstein v. Mayor of Mobile, 40 Ala. 725; Shover v. State, 10 Ark. 259; Scales v. State, 47 Ark. 476, 1 S.W. 769, 58 Am. Rep. 768; Warner v. Smith, 8 Conn. 14; Gunn v. State, 89 Ga. 341, 15 S.E. 458; Langabier v. Railroad Co., 64 Ill. 243, 16 Am. Rep. 550; Voglesong v. State, 9 Ind. 112; Megowan v. Com., 2 Metc. (Ky.) 3; State v. Judge, 39 La. Ann. 132, 1 So. 437; State v. Ambs, 20 Mo. 214; Lindenmuller v. People, 33 Barb. 548; Society for Visitation of Sick and Burial of Dead v. Com., 52 Pa. 126, 91 Am. Dec. 139; Mayor, etc., v. Linck, 12 Lea, 499; Gabel v. City of Houston, 29 Tex. 335; In re King (C. C.) 46 F. 905; Ex parte Andrews, 18 Cal. 685; Ex parte Burke, 59 Cal. 19, 43 Am. Rep. 231; Ex parte Koser, 60 Cal. 202; State v. Baltimore & O. R. Co., 15 W.Va. 362, 36 Am. Rep. 803; Cooley, Const. Lim. (5th Ed.) 726; Tied. Lim. 175-188; Cooley, Const. Law, 216. It may well be concluded that the power of the legislature to enact these laws, as an appropriate exercise of the police power, is set at rest by judicial authority.

It follows from the source and nature of such legislation that the inquiry into the other objections urged by counsel for defendant--that the law is void because it invades the rights of persons and property, and deprives the defendant of each without due process of law, and that it discriminates between different classes, and is therefore repugnant to section 12 art. 1, of our constitution, and the fourteenth amendment of the federal constitution--is narrowed to an inquiry into the reasons or motive of the enactment. The usual and substantially the ancient and original Sunday law prohibited secular occupations on Sunday, excepting works of necessity or charity. In the legislation of all the states in the Union, except, it seems, in Illinois, the substantial features of the law are the same. There have been different views in the minds of legislators as to what particular acts were works of necessity or charity. They have been uniform in regarding all noisy occupations and amusements and trades as within the substance of the law. The statute (section 7251, supra) forbids the opening on Sunday, for the purpose of trade or sale of all goods, wares, and merchandise at any place of business whatever. Here is the plain legislative expression that the sanitary, moral, and physical good of the community requires the cessation of these labors on Sunday. But excepted are hotels, drug stores, livery stables, and undertakers. Certainly, in the view of authority and well-recognized principles, this is no arbitrary exception; and, unless clearly so, it is not within the province of the judiciary to inquire further into the policy of the statute. The legislature is itself primarily the judge of how far police restrictions shall go. But here it is apparent that the recognized exception of works of necessity or charity was in the mind of the legislature. That the legislature may in the first instance determine what are works of necessity and charity has been adjudged by the highest authority. The general Sunday law of Minnesota prohibited all labor on Sunday, excepting works of necessity and charity. Afterwards the legislature amended the law, and provided 'that keeping open a barber shop on Sunday for the purpose of cutting hair and shaving beards shall not be deemed a work of necessity or charity.' The supreme court of Minnesota, in State v. Petit, 77 N.W. 225, observed of this proviso, and the definition contained in it of works of charity: 'In the exercise of the police power in establishing a day of rest, a very large discretion must be allowed to the legislature in determining what kinds of labor or business should be prohibited, and what are and what are not works of necessity or charity; and unless their classification is manifestly purely arbitrary, and not founded upon any substantial distinction or apparent natural reason, which suggests the necessity or propriety of different legislation, the courts have no right to interfere with the exercise of legislative discretion. Courts will take judicial notice of the fact that, in view of the custom to keep barber shops open in the evening as well as in the day, the employés in them work more, and during later hours, than those engaged in most any other occupations, and this is especially true on Saturday afternoons and evenings. * * *' The same case, upon appeal to the supreme court of the United States ( Petit v. Minnesota, 177 U.S. 164, 20 S.Ct. 666, 44 L.Ed. 716), was reviewed, and the opinion of the state court commended and affirmed, and it was observed: 'We recognize the force of the distinctions suggested, and perceive no adequate ground for interfering with the wise discretion confessedly necessarily exercised by the states in these matters, by holding that the classification was so palpably arbitrary as to bring the law into conflict with the federal constitution.' In State v. Judge of Section A (La.) 1 South. 437, the constitutionality of a Sunday law was under consideration. Its salient object was to require the closing of all places of business, with the exception of certain designated classes, from 12 o'clock on Saturday night until 12 o'clock on Sunday night of each week, and the punishment of the violation thereof by criminal penalties. It was urged that the law conflicts with the fourteenth amendment of the federal constitution, and with the state constitution, declaring the right to the enjoyment of life, liberty, and property. The court observed, in upholding the validity of the statute: 'There exists a remarkable consensus of authority that the establishment of a cumpulsory day of rest in each week is a legitimate exercise of the police power. Such laws have been passed in nearly every state of the Union, and their constitutionality has never been successfully questioned in but a single case within our knowledge,--that of Ex parte...