
    KECK v. THE CITY OF GAINESVILLE. McCUTCHEON v. The Same.
    A municipal ordinance making it penal to “act in a disorderly manner,” or “make any unnecessary noise within the corporate limits, calculated to disturb the peace, quiet or good order of the city,” or to " be guilty of disorderly conduct,” is not violated by quietly working in a closed church on the Sabbath day upon the benches therein, the work in question not being itself of such a character or causing such noise as would ordinarily disturb any citizen, and the only “disturbance” occasioned by it arising from the fact that it was done on the Sabbath. The ■design of such an ordinance is to insure the peace, tranquillity and repose of the community, and not to prevent acts otherwise unobjectionable, but which from the fact that they are done on that day are shocking to the religious or moral sensibilities of a portion of the citizens.
    May 11, 1896. Argued at the last term.
    
      
      Certiorari. Before Judge Ilimsey. Hall superior court. July term, 1895.
    
      E. H. Dean, for plaintiffs in error.
    
      Perry & Craig and Howard Thompson, contra.
   Simmons, Chief Justice.

It will be seen that the ordinance alleged to have been violated applies to every day in the week, and not especially to Sunday. It prohibits disorderly acts or the making of' unnecessary noise calculated to disturb the peace, quiet or good order of the community, but there is no indication that its purpose is also to' prevent acts which disturb the religious feeling of the community, but which are not otherwise objectionable. The conduct which it was alleged constituted a violation of the ordinance was the making of benches inside a meeting-house on Sunday, and the noise was that made by the use of a saw, a hammer and other tools in doing this work. The witnesses for the prosecution testified that they were disturbed by the work because it was being done on Sunday, and that they would not have been disturbed if it had been done on any other day. It was done quietly, and would not have attracted any special attention but for the fact that the day was Sunday.

We think the court erred in holding that the conduct in question amounted to a violation of the ordinance. To' constitute a violation of the ordinance, the act must be such as would be disorderly, and the noise such as would be unnecessary and calculated to disturb the peace, quiet and good order of the community on other days of the week as well as on Sunday. It does not follow that because one does an act which shocks the religious feeling of another1, his conduct is “disorderly.” (See Kahn v. The City of Macon, 95 Ga. 419.) People of different religious beliefs have very different views in regard to the observance of the Sabbath, or as to what constitutes a violation of the sanctity of that day. What would shock the religious feeling of one would not be considered objectionable by another. Taking a carriage, drive for pleasure on Sunday disturbs the religious feelings of some, while by others it is regarded as an innocent recreation. Bull-fighting on Sunday would disturb the religious feeling of most people in this country, yet in some countries it is a customary mode of recreation, and doubtless is not regarded as a violation of the Sabbath.

If the plaintiffs in error, on the occasion in question, were carrying on the work of their ordinary callings, and not a work of charity or necessity, they were violating a law of the State (Code, §4579), and ought to have been indicted under that law. A municipal corporation has no power to impose a punishment for an act made penal by the law of the State, unless expressly authorized by the legislature to 'do so. (Kahn v. City, supra, and cases cited.) The statute above referred to is ample to protect the public from the carrying on by any person of the work of his ordinary calling on Sunday, whatever may be his religious belief. It is a police regulation which the State has a right to adopt; and its purpose is not to force people to observe Sunday in a religious way, or according to the religious views of any portion of the community, but to require that it be observed as a day of rest and cessation from labor, the legislature doubtless regarding this as necessary to the health and well-being of the people. The legislature could have appointed Monday for this purpose as well as it did Sunday, and the law would have been equally binding. See Hennington v. The State, 90 Ga. 396; Hennington v. Georgia, 163 U. S. 299. Judgment reversed.  