
    Preston W. Sellers v. George Dugan.
    Under the act of 1831, “ for the prevention of immoral practices,” a sale on Sunday of four hundred bushels of corn, is void, and no action for damages can be sustained for the breach of such contract.
    This is a writ of error to the Supreme Court of Brown county.
    The writ was allowed for the purpose of bringing before the court the act of 1831, (Swan’s Stat. 255,) and of settling the construction of that part of the first section which prohibits, under a penalty, common labor on Sunday. The defendant, Dugan, brought an action of assumpsit against Sellers to recover damages for the breach of a contract for the delivery of four hundred bushels of corn. Sellers claimed in the defense that the contract was made on Sunday, the plaintiff’s agent representing at the time that the plaintiff’s boat would be at the landing in a few days and receive it. By the evidence it was shown that the contract was made on Sunday, and a small part of the price of the corn was paid.
    
      Sellers ^ Marshall, for plaintiff in error.
    
      O. Baird, for defendant.
   Avery, J.

That section of the statute upon which we are called to put a construction, is in these words:

That if any person of the age of fourteen years or upwards, shall be found on the first day of the week, commonly called Sunday, sporting, rioting, quarreling, hunting, fishing, shooting, or at common labor, (works of necessity and charity only excepted,) he or she shall be fined in a sum not exceeding five dollars, nor less than one dollar; provided, nothing herein con tained shall be construed to extend to those who conscientiously do observe the seventh day of the week as the Sabbath, nor to prevent families emigrating, from traveling; watermen from landing their passengers; superintendents or keepers of toll-bridges from attending and superintending the same ; or ferrymen from conveying travelers over the waters, or persons removing their families on such days.”

What is the right construction of the words, in this section, “ at common labor, works of necessity and charity only excepted” ? The act under consideration, which is entitled “ an act for the prevention of certain immoral practices,” begins with an enactment against specified amusements, against quarreling, and against common labor, on the day called Sunday; but it excludes from its operation all such as conscientiously observe the seventh day of the week as the Sabbath. In the bill of rights of our state constitution, it is declared, that religion, morality and knowledge are essentially necessary to good government and the happiness of mankind; but it is there also declared, that all men have a natural and indefeasible right to worship Almighty God according to the dictates of conscience; that no human authority can control or interfere with the rights of conscience; * * * that no preference shall be given by law to any religious society or mode of worship.” There is no citizen of the state, who is not familiar with the terms Sunday and Sabbath, used in the act, and with what is known to be the common and religious observance of the day. There is no reason to doubt that the legislature had -power given to them by the constitution, to pass a law prohibiting all persons who do not conscientiously observe another day as the Sabbath, from engaging in sports or labor on that day. Whether the power ought to be exercised, would depend upon their sense of the public good; and in our representative government, it is very certain that they would reflect, in that particular, as in others, the public and general sentiment.

When the law is decided to be within the constitutional power of the legislature, we have next to ascertain their intention, if possible, in passing it, and give effect to such intention.

A similar statute upon this subject in England, has, upon numerous occasions, received a construction in the English courts. The statute is the 29 Car. II, c. 7, sec. 1, and provides, that no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, business or work of their ordinary callings, on the Lord’s day, or any part thereof, works of necessity and charity only excepted j and that every person of the age of fourteen years, offending in the premises, shall forfeit five shillings. The case of Fennel and another v. Riddler, was a decision upon this statute of the 29th Charles. There the court determined that a horse-dealer could not maintain an action for the sale and warranty of a horse, made by him upon a Sunday. Bayley, J., in delivering the judgment of the court, says: “ It (the action) was an action upon the warranty of a horse. The plaintiffs were horse-dealers, and the horse was bought and the warranty given on a Sunday; and the only question was, whether, under the 29th Charles, the purchase was illegal, and the plaintiffs precluded from maintaining the action. * * * That the purchase of a horse by a horse-dealer is an exercise of the business of his ordinary calling, no one can doubt.” In the course of the opinion, he says further: Upon the principle that this statute is entitled to such a construction as will promote the ends for which it was passed, that it applies to private as well as public conduct, and that the purchase by the plaintiff was within the mischief intended to be suppressed, and within the words made use of to suppress it, we are of opinion that the plaintiffs cannot maintain the present action.” In this same opinion, Drury v. De la Fontaine, (1 Taun. Rep. 155,) is noticed, which was a case on a private contract for the purchase of a horse, and where Lord Mansfield laid it down that a contract made on Sunday, by any man in the exercise of his ordinary calling, would be void.

In the 4th Bingham 84, is a case — Smith v. Sparrow — in which it was held that an action could not lie on a contract of sale entered into on a Sunday, though entered into by an agent. Our statute prohibits “ common labor; ” the English statute, “ worldly labor, business or work.” Ours uses the terms common labor, with no exception but works of necessity and charity. The English statute has this qualification further, it must be work “ of their ordinary calling; ” and upon this qualification some of the English decisions turn. The construction of the 29th Car. II, is well settled in England; and there a contract made by one in the exercise of his ordinary calling, is void.

In the State of Alabama, a statute is in force forbidding, under a penalty, worldly business or employment, ordinary or servile work, works of necessity or charity excepted; and after enumerating shooting, sporting, etc., adds: “ and no merchant or shop-keeper, or other person, shall keep open store, or dispose of any wares or merchandise, goods or chattels, on the first day of the week, commonly called Sunday, or sell or barter the same,” etc. Under this statute, it has been held, O'Donnel et al. v. Sweeney, 5 Alabama Rep. 467, that a note executed upon the purchase of a horse, on Sunday, cannot be enforced. It was said in that case by the judge giving the opinion of the court — it had been contended in argument that the design of the legislature was to prevent public sales, and had no reference to private contracts; but he says: “We do not think the design of the legislature, in the passage of the act, can be doubted. It was evidently to promote morality and advance the interests of religion, by prohibiting all persons from engaging in their common and ordinary avocations of business or employment on Sunday, unless impelled thereto by necessity, or engaged in acts of charity.” In the 10th Alabama 566, Dodson and another v. Harris and another, the same court decides that, where a horse is sold on Sunday and a note taken on the Sunday, both the contract and note are void. The court in this case refer to several other adjudged cases in the state to the same effect. The language of the statute of Alabama is more comprehensive than that of the 29th Charles, and may be thought to be somewhat more comprehensive uhan ours; whether it is or not, it is more minute and particular in designating the acts prohibited.

But our statute upon this subject, and in regard to the words under examination, “ common labor,” has received an interpretation by this court, which is in point upon the present question. The ease is in 15 Ohio Rep. 225, City of Cincinnati v. Rice. There it was decided, that these words “ common labor,” in the act now under review, embrace the business of “ trading, bartering, selling or buying any goods, wares or merchandise.” A majority of this court believe that that was a sound construction of. the act, and that any other would have been a narrow construction.'

A large number of the states of the Union, have by statute prohibited, under a penalty, both amusements and labor on Sunday; though they have varied in the expressions employed to accomplish the object. Upon principle, where an act is prohibited under a penalty, any contract for the performance of such an act is void. Accordingly, in the reports of many of the states, cases are found, where a contract is declared void, because ic is in violation of a law prohibiting, by some form of expression, labor or business on Sunday..

A majority of the court are of opinion, that an ordinary contract made in the course of business, on a Sunday, is void, and that no action can be sustained, to recover damages for the breach of such a contract; that the contract between these parties, on which the suit was originally brought, is void, because it was made on Sunday.

The judgment of the supreme court for Brown county is reversed.

Caldwell, J.,

dissenting.

I cannot give my assent to the decision which the majority of the court have made in this case. 1 do not believe that the court have any legal authority for so deciding. The decision is claimed by the court to be authorized by the 125th section of the act providing for the punishment of crimes and misdemeanors of the third class. That statute provides that if any person of the age of fourteen years or'upwards, shall be found on the first day of the week, commonly called Sunday, sporting, rioting, gambling, hunting, fishing, shooting, or at common labor, (works of necessity and charity only excepted,) he or she shall be fined, etc.

Now do the facts of this case come within the provisions of this law ? The pleadings are silent on the subject of the contract being made on Sunday; all that we have on the subject is, that two of the witnesses speak of the place where the contract was made, and merely state, without any explanation whatever, that it was on Sunday. All we know then about the' matter, is, that the parties met at the house of a neighbor, that one of them was about to remove from where he resided, and remarked that he would have to sell his corn; the other offered a price that he was willing to take, and the contract was consummated. It does not appear that any one was disturbed by any show or bustle of business, or that it was done under such circumstances as to wound the feelings of any one, who might consider the act a desecration of the day; in the peculiar language of the statute, they were not “ found ” by any such person, as appears from the evidence. Indeed, the circumstances of the case, to my mind, go to preclude the idea of any such exhibition or disturbance. The court bring this act within the terms of the statute, “ common labor.” What is the object of the statute ? We do not suppose that any part of its object was to punish persons for not observing the Sabbath in a particular way; this would be persecution, and as the legislature have no power under our constitution to pass such a law, it would be a nullity. How far, then, can the legislature go in this matter ? No farther than to protect that portion of the community who observe the day as hallowed to religious exercises, from disturbance and annoyance. I think a careful examination of the statute will. show, that the legislature have been careful to keep within this bound. To say that two men making a contract, in a house, on Sunday, could be made amenable to a criminal law providing a punishment for those who are found at common labor, is certainly giving a penal enactment a very liberal construction. It would certainly be a very awkward account of the matter, if a person who had witnessed this sale of the corn, were to describe it by representing the parties as being engaged in common labor. It is a contradiction to the terms as used in common parlance. It is said, however, that the term common labor means ordinary business or employment. Now what the ordinary business of these men was, we do not know. One of them, it appears, had raised a small crop of corn. Now if this man had been found in his field at work on Sunday, or had been on that day engaged in gathering his corn, or had been engaged in other common business on his farm, he would have been engaged at common labor. The most reasonable conclusion that can be drawn from the facts we have before us is, that these men met together that day, at their neighbor’s house, and that the contract then happened to be made, because they had so far observed the Sabbath, as to abstain from their usual employment.

It is said that a man keeping open his store and selling goods, or engaged in business of that kind, would come within the provisions of that statute. That, however, differs very widely from a case of this kind: that is a case of a continuous engagement in ordinary business, of common labor, both of the mind and body, and so presents itself to the public, and thus produces the evil sought to be remedied by the statute. The statute, we think, never could be intended to operate in a single instance of the union of two minds in making a contract. It would, I think, be rather a singular spectacle to see two men seized and taken before the proper authority, and punished for making a contract on Sunday, when no disturbance nor annoyance was given to any one, by the act. And yet the court (and as I think by a strained construction of the statute) have virtually decided that such is the law. If an act such as making a single contract, on Sunday, that in its nature is not calculated to disturb the peace and quiet of the day, can be made the subject of legal supervision and penal enactment, it can only be on the ground that it is abstractly wrong, immoral. If the legislature can punish an act of this kind, they can another, and their power to persecute, to punish for whatever, they may consider abstractly wrong, is unlimited. It is the glory of our country that the right of belief in .any particular religious tenet without molestation on account thereof, is granted to every one; but this principle can only be preserved by extending it equally to the unbeliever. It is the same great indivisable principle that alike protects humanity, the birth-right of the whole, which each with equal reason may claim, should he believe any religious creed whatever; or should he disbelieve the whole.

We have been referred to the decisions of the court for authority upon this subject. Those decisions are all made on statutes essentially differing from our own. We know that many authorities can be found, both ancient and modern, that have gone as far as this decision in enforcing the observance of the Sabbath. We do not propose to examine them for two reasons: one is, the one mentioned above, that the statutes on which they are made, differ from ours. Another is, that the pernicious and ruinous consequences of enforcing religious principle by legal enactment have been so well tested, and are so apparent, that any decision of the kind should not be regarded. Indeed, if I were to attempt to present the error into which I think the court have fallen in this decision, in its strongest light, I would do it by a reference to the action of the courts and legislative bodies, not only in Europe, but in some parts of this country, in its early settlement, in attempting to enforce the observance of the Sabbath by law. It always has, and always will produce, a pharisaical and hypocritical observance of a religious duty, and creates a v spirit of cen sorious bigotry, and tends powerfully to destroy every religious feeling of the heart.

I know of but one reported decision in this state ; that is the-case of Swisher’s Lessee v. Williams’s Heirs, Wright’s Reports 754. The court there say “ the objection that the deed was executed on Sunday will not avail you. Both parties partook equally of the sin of violating the Sabbath, and the law does not require of us to enable either party to add to the sin,, by breaking the faith pledged on that day, and commit a fraud, out of assumed regard for the Sabbath day.” This decision is directly in point, and I think good law. I think the decision of the court on the circuit was right, and should have been affirmed.  