
    People ex rel. William J. Moffatt and Victor Hender, Relators, v. Michael J. Zimmerman, Captain of the Police of the City of Rochester, Monroe County, N. Y., Respondent.
    (Supreme Court, Monroe Special Term,
    September, 1905.)
    Sunday — Public traffic a misdemeanor — Laws regulating observance not unconstitutional — Penal Code §§ 263, 264 and 267 — Habeas corpus.
    Where the returns to a writ of habeas corpus show that the petitioners were arrested for opening their place of business for the sale of, and selling, upon Sunday, groceries, which were not among the exceptions permitted by statute, the petitioners will be remanded to the custody of the officers.
    The observance of Sunday as a religious and civil institution is recognized by our Government and §§ 263, 264 and 267 of the Penal Code, regulating its observance, must be liberally construed for its protection and are not unconstitutional.
    Habeas Corpus proceedings. Motion to quash writ.
    Robert Averill, Assistant District Attorney, for People.
    George D. Forsyth, for defendant,
   Davy, J.

The sole question in this case is whether M. J. Zimmerman, captain of the police of the city of Rochester, had legal authority to arrest and detain the petitioners for trial before the police magistrate of the city of Rochester. That question must be determined by the returns to the writs of habeas corpus.

It appears by the returns that the petitioners were arrested by the police officer, upon warrants issued by the police magistrate of said city, for unlawfully selling a quantity of groceries to one Frank Esqurral on Sunday. The information authorizing the police magistrate to issue the warrants was derived from the affidavits of said Esqurral, which alleged facts sufficient to give the court jurisdiction.

The statute of this State, regulating the observance of Sunday, prohibis all servile labor or work on that day, excepting works of necessity and charity, unless done by those who keep Saturday as a holy day and whose labor does not disturb other persons in the observance of the first day of the week as holy time. Penal Code, §§ 263, 264. It also prohibits: “ All manner of public selling or offering for sale of any property on Sunday is prohibited, except that articles of food may be sold and supplied at any time before ten o’clock in the morning, and except also that meals may be sold to be eaten on the premises where sold or served elsewhere by caterers; and prepared tobacco, milk, ice and soda-water in places other than where spirituous or malt liquors or wines are kept or offered for sale, and fruit, flowers, confectionery, newspapers, drugs, medicines and surgical appliances may be sold in a quiet and orderly manner at any time of the day. The provisions of this section, however, shall not be construed to allow or permit the public sale or exposing for sale or delivery of uncooked flesh foods, or meats, fresh or salt, at any hour or time of the day.” Penal Code, § 267.

Any person who violates any of the provisions of said act is guilty of a misdemeanor and .upon conviction is subject to a fine not less than five dollars and not more than ten dollars, or by imprisonment in the county jail not exceeding five days, or by both; but for a second offense where the party shall have been previously convicted it shall be punishable by a fine not less than ten dollars and not more than twenty dollars and by imprisonment' in a county jail not less than five nor more than twenty days. In addition to the above penalty, all property and commodities exposed for sale on the first day of the week, upon conviction of the offender shall be subject to seizure, which, when seized, shall be sold and the proceeds paid to the overseer of the poor for the use of the poor of the town or city. Penal Code, §§ 269, 270. This statute must be liberally construed for the protection of the Sabbath, because it is in harmony with the religious sentiment of the public and it also tends to promote public morals and good order.

The opening of a place of business for the sale of goods . and the actual selling of them is a public selling, which the act for the observance of Sunday was designed to remedy. It is the selling or offering for sale any article of merchandise that constitutes the offense and not the character of the article, unless it is among the exceptions in the act.

The learned counsel for the petitioners also contends that the act is unconstitutional and for that reason the petitioners should be discharged.

I am of the opinion that this statute violates no provision of either the Federal or State Constitution. The Christian Sabbath is one of the civil institutions of the State and the Legislature for the purpose of promoting the moral and good order of society has power under the Constitution to regulate its observance and prevent' its desecration by any appropriate legislation.

The existing Sunday laws rest chiefly on the right of all classes to rest one day in seven, the right to undisturbed worship on that day and the orderly and decent respect which should be paid to the religious institutions of the people. The Christian Sabbath was observed and respected long before the existence of our government. The early colonists brought with them the observance of Sunday both as a religious and as a civil institution and both the religious and secular observance of the day were enforced by laws similar to the English statutes. In this State the Sabbath exists as a day of rest by statute and also by the common law and the Legislature has passed acts regulating its observance. Sunday laws exist in nearly every State in the Union. The statutes of the different States differ somewhat in details and strictness, but in nearly all the States common labor and traffic are prohibited. Public amusements are restricted or prohibited and the constitutionality of these laws has been sustained by the highest State courts.

In People v. Moses, 140 N. Y. 215, Judge Earl said: “ The Christian Sabbath is one of the civil institutions of the state, and that the legislature for the purpose of promoting the moral and physical well-being of the people, and the peace, quiet and good order of society, has authority to regulate its observance, and prevent its desecration by an appropriate legislation is unquestioned.”

The motion, therefore, to quash the writ is denied and the petitioners are remanded to the custody of the captain of the police, who is directed to take them before the police magistrate to he dealt with according to law.

Motion denied.  