Xepapas v. Richardson

• Decision Date: 05 February 1929
• Docket Number: 12573.
• Parties: XEPAPAS et al. v. RICHARDSON, Chief Constable, et al.
• Court: South Carolina Supreme Court

146 S.E. 686

149 S.C. 52

XEPAPAS et al. v. RICHARDSON, Chief Constable, et al.

No. 12573.

Supreme Court of South Carolina

February 5, 1929

Original action by George J. Xepapas and others against John W Richardson, Chief Constable, and others. Injunction granted.

G Duncan Bellinger, of Columbia, for petitioners.

John M Daniel, Atty. Gen., and Cordie Page and J. Ivey Humphrey, Asst. Attys. Gen., for respondents.

BLEASE J.

In this action, the petitioners (plaintiffs) allege that as individuals and partners they are respectively engaged in the mercantile business in the city of Columbia; that some of them are Israelites and of the Hebrew faith, while others of them are Christians and of that religious faith; that for many years they have operated their places of business on Sundays; that the respondents (defendants), certain peace officers, threaten to enter upon the premises of the plaintiffs and to seize, confiscate, and sell their goods, wares, and merchandise offered or exposed for sale on Sunday, under pursuance of sections 713, 714, and 717 of the Criminal Code of 1922, vol. 2, c. 16. The petitioners allege that the sections of the Code referred to are unconstitutional, null, and void, in that they violate, and are in conflict with, many of the provisions of the Constitution of the state of South Carolina and the Constitution of the United States. The petitioners pray that the defendants be enjoined from seizing, confiscating, and selling their goods.

The respondents, by their return, admit their intention to enforce the provisions of the statutes mentioned, and allege that it is their duty so to do, and they set up the validity of the legislative enactments attacked.

It is only necessary at this time, under the view we take, to discuss five issues made in the case.

The first of these is the contention of the petitioners that the statutes under consideration are in violation of section 4, art. 1, of the Constitution of 1895, in that the said statutes are laws respecting the establishment of religion. The particular language of the section and article mentioned is as follows: "The General Assembly shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." In this connection, it is also urged that these statutes violate the Fourteenth Amendment of the Constitution of the United States, which guarantees the equal protection of the law to all citizens of the state and the United States. The petitioners declare that Hebrews and Seventh Day Adventists do not observe Sunday, or the Christian Sabbath, as their day of rest and worship, and the laws under consideration have the effect of requiring them to observe the Christian Sabbath instead of Saturday, the day set apart according to their religious belief for rest and worship.

Without entering upon any religious discussion, we point to the case of City Council of Charleston v. Benjamin, 2 Strob. (33 S.C. L.) 521, 49 Am. Dec. 608, as being decisive in this state of the question here raised. The Benjamin Case, decided in 1846, has been reaffirmed from time to time by this court, and, in a way, was approved as late as the case of Charleston Oil Co. v. Poulnot, 143 S.C. 283, 141 S.E. 454, decided in 1928.

In addition to the cases in this state holding that the statutes here attacked do not contravene the provisions of the Constitutions of either the state or the United States, which prohibit the legislative power from enacting laws respecting the establishment of religion, or prohibiting the free exercise thereof, we call attention to the fact that all the well-recognized lawwriters in the United States are of the same opinion. See articles on Sunday Laws in R. C. L., American & English Encyclopedia of Law, and Cyclopedia of Law. The great constitutional authority, Judge Cooley, in his work on Constitutional Limitations, says this: "We have elsewhere referred to cases in which laws requiring all persons to refrain from their ordinary callings on the first day of the week have been held not to encroach upon the religious liberty of those citizens who do not observe that day as sacred. Neither are they unconstitutional as a restraint upon trade and commerce, or because they have the effect to destroy the value of a lease of property to be used on that day, or to make void a contract for Sunday services. There can no longer be any question, if any there ever was, that such laws may be supported as regulations of police." Cooley's Constitutional Limitations (7th Ed.) p. 859. (Italics added.)

The second position of the petitioners is that the right of jury trial is denied by the sections under examination, particularly by the provisions of section 717. The last-mentioned section contains the following language: "*** Every Magistrate within his county shall have power and authority to summon before him any person or persons whatsoever who shall offend in any of the particulars before mentioned, and upon his own view, or confession of the party, or proof of any one or more witnesses, upon oath, the said Magistrate shall give a warrant, under his seal, to seize the said goods cried, showed forth, or put on sale as aforesaid, and to sell same."

The petitioners insist that the words we have italicized, "upon his own view," leave it absolutely to a magistrate, without jury trial, to pass upon the guilt or innocence of one charged with selling goods on Sunday, and upon conviction by the magistrate to declare a forfeiture of the goods. It is argued that the provisions of the statute referred to are in conflict with articles 7 and 14 of the Amendments of the Constitution of the United States, and sections 5, 18, and 25 of article 1 of our own Constitution.

The Seventh Amendment to the Federal Constitution provides, "In suits at common law, where the value in controversy shall exceed Twenty Dollars, the right of trial by jury shall be preserved. ***" The petitioners cannot appeal to that amendment to sustain their contention, for it has been repeatedly held by the Supreme Court of the United States that the amendment applies only to courts sitting under the authority of the United States. See Pearson v. Yewdall, 95 U.S. 294, 24 L.Ed. 436, and numerous other cases cited in the Revised and Annotated Constitution of the United States 1924, p. 623, published under the authority of Congress.

The part of the Fourteenth Amendment to the Federal Constitution to which the plaintiffs have referred is a clause which provides, "nor shall any State deprive any person of life, liberty, or property, without due process of law." Section 5 of article 1 of our own Constitution contains a similar provision.

Section 18 of article 1 of the Constitution of this state guarantees to an accused in all criminal prosecutions the right of trial by an impartial jury. Section 25 of the same article is as follows: "The right of trial by jury shall be preserved inviolate."

It is the duty of this court, however, to sustain the constitutionality of any legislative enactment whenever it is possible to do so. And, in order to do this, we must not only consider the challenged statute, but any and all provisions of our laws, which in any way bear upon, or are connected with, the enactment under consideration.

Section 27, vol. 1, of the Code of Criminal Procedure 1922, declares: "Every person arrested and brought before a Magistrate, charged with an offense within his jurisdiction, shall be entitled, on demand, to a trial by jury, which shall be selected as provided in Section 2245 of Vol. III."

Section 2244 of volume 3 of the Code is as follows: "Either party to suit before a Magistrate shall be entitled to a trial by jury."

The rules to be observed by the court in giving effect to parts of a statute which are constitutional, when other parts thereof are unconstitutional, as laid down by Mr. Cooley in his book on Constitutional Limitations (6th Ed.) pp. 211 and 212, have been approved by this court in several cases, and are as follows: "If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute, are capable of being separated within the meaning of the rule. If a statute attempted to accomplish two or more objects, and is void as to one, it may still be, in every respect, complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fall, unless sufficient remains to effect the objects, without the aid of the invalid portion, and if they are so mutually connected with and dependent upon each other, as conditions, considerations or compensations for each other, as to warrant the belief, that the legislature intended them as a whole, and if all could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditionally or connected, must fall with them." State v. Warehouse Commission, 92 S.C. 81, 75 S.E. 392; Utsey v. Hiott, 30 S.C. 360, 9 S.E. 338, 14 Am. St. Rep. 910; Murph v. Landrum, 76 S.C. 21, 56 S.E. 850.

This court has repeatedly held that statutes constitutional in part will be upheld as to those parts when it is possible so to do. See State v. Johnson, 76 S.C. 39, 56 S.E 544, 11 Ann. Cas. 721; People's Bank of Rock Hill v. People's Bank of Anderson, 122 S.C. 476, 115 S.E. 736; State v. Burns, 73 S.C. 194, 52 S.E. 960; Strickland v. Railway Co., 112 S.C. 67, 98 S.E. 853; State v. Glover...