
    State v. Powell.
    
      Exhibitions on Sunday — Section 7082a, Revised Statutes — Not in conflict with section 7, Bill of Rights — Power of legislature to adopt laws for well-being of society — Constitutional law.
    
    1. Section 7032a, Rev. Stat., making it, among other things, an offense punishable by fine and imprisonment ior any one on the first day of the week commonly called Sunday, to play base ball or exhibit “any base ball playing,” neither requires nor prohibits any religious observance, and does not, therefore, violate the right of conscience in matters of religion secured to the individual by the seventh section of our bill of rights.
    2. It is competent to the general assembly in the exercise of its legislative power to adopt all such wholesome laws as may be necessary to promote the peace, health and well-being of society; laws fixing regularly recurring days of rest from all secular pursuits, such as our Sunday laws, are of this character, and do not violate the personal liberty of the individual, secured by the first section of o.ur bill of rights.
    (Decided April 19, 1898.)
    
      Exceptions of the prosecuting attorney to the rulings of the Court of Common Pleas of Cuyahoga county.
    
      T. L. Strimple, prosecuting* attorney; Harvey JR. Keeler; Cha/rles W. Snider and J. K. Ingersoll, for plaintiff in error.
    I. The power of the legislature in Ohio in the enactment of laws is unlimited, except as limits are to be found in the constitution of the state or of the United States.
    The present constitution, which was adopted in 1851, defines the domain of legislative power and authority in language which is very broad and comprehensive. Article 2, section 1, Baker v. City of Cincinnati, 11 Ohio St., 534.
    Since the adoption of the present constitution containing the same grant of legislative power, interpretations to the same effect are contained in Lehman v. McBride, 15 Ohio St., 591; State ex rel. Games v. McCann, 21 Ohio St., 207; Bloom v. Xenia, 32 Ohio St., 464; Me Gill v. State, 34 Ohio St., 244; Peters v. McWilliams, 36 Ohio St., 161; Bronson v. Oberlin 41 Ohio St., 480; Sharpless v. The Mayor of Philadelphia, 21 Pa. St., 147.
    II. When the present constitution was adopted, the power to enact laws enforcing the observance of Sunday as a day of rest, had been fully recog*nized by both the legislature and the judiciary as a constitutional exercise of legislative power, and in adopting the present constitution the people adopted with it such interpretation.
    In Swan’s Statutes, p. 255; 29 O. L., (1831) p. 161, was a statute embracing substantially the same matters prohibited to be done on Sunday as are now contained, in Revised Statutes, sections 7032 and 7033.
    Section 7032 embraces those acts ending with the word ‘ ‘ shooting, ” while section 7033 embraces substantially the remainder of the statute of 1831 above quoted.
    We make this quotation as showing- that the legislature in its exercise of legislative power, preceding and at the time of the adoption of our present constitution, was assuming jurisdiction over the subject of enforcing Sunday rest upon the citizens of the state.
    The Supreme Court up to that time upheld such exercise of legislative power as being plainly within its legitimate province.
    Wright’s Rep., p. 754, Swisher's Lessee v. Williams' Sews, (decided in 1834) is the first recorded opinion of the Supreme Court regarding the law of Sunday observances, which was the law of 1831.
    The next utterance of the Supreme Court involving this law of 1831 is found in Cincinnati v. Bice, 15 Ohio St., 225.
    So that the chief contention in the Supreme Court came to be whether or not the words which by the ordinance had been added to the statute were embraced in the words “common labor,” which the statute contained; for if they were so embraced, then the second section of the ordinance, which contained the same provision of exemption from its punitive power to all who conscientiously observe the seventh day of the week as the Sabbath, would sustain the judgment of the common pleas and warrant the discharge of the defendant.
    We will very briefly ask the attention of the court to the next case in the Supreme Court involving the subject of Sunday observance, determined prior to the adoption of the present constitution.
    In Sellers v. Dugan, 18 Ohio, 489, the statute of 1831 came before the Supreme Court of Ohio for construction upon the point whether or not a single act of contracting for the purchase of corn was included within the words “common labor.”
    The next case in order before the Supreme Court of Ohio, in 2 Ohio St., 387, was decided after the adoption of the present constitution, to-wit: at December Term, 1853; Specht v. Commonwealth,, 8 Pa. St., 312; City Council of Charleston v. Benjamin, 2 Strobh, S. C. Law Rep., 508; Cooley’s Constitutional Limitations, p. 67; Wolfv. State, 19 Ohio St., 255.
    III. The bill of rights in our present constitution, especially in the guaranty of liberty of conscience and freedom from religious tests, does not impose such restraint upon the legislative power as to prohibit the enactment of the law in question: Article 1, section 7.
    Statutes designed to secure rest from labor, on grounds of pure political economy, were in force in most of the states when this constitution was adopted. This statute under discussion does not forbid or interfere with any one in the “worship of Almighty God according to the dictates of his own conscience.”
    We have never heard the contention, and do not expect to hear it, that playing base ball is an act of worship, which the conscience of any one requires to be performed on Sunday; and until such senseless contention is made, there is no ground for the further contention that a law forbidding the playing on Sunday is an interference with the rights of conscience in worship. In McGatrick v. Wason, 4 Ohio St., 566, the Supreme Court had occasion to pronounce the validity of the Sunday law, the .same law of 1831 given above.
    These doctrines are affirmed by the Supreme Court in Canton City v. Christ, 9 Ohio St., 439; Board of Education v. Minor, 23 Ohio St., 211; Biligheimer v. State, 32 Ohio St., 435; Hastings v. Columbus, 42 Ohio St., 585.
    IV. There is no rational or legal ground for objection to the statute in question in the contention by defendant that it is in conflict with the spiritand genius of our free institutions. 20 Ohio Appendix, 8; Griffith v. Comrs. of Crawford Co., 20 Ohio, 609; Walkers. Cincinnati, 21 Ohio St., 14; The Btateexrel, Herrons. Smith, 44 Ohio St., 374; Probascos. Panne, AudÁtor, 50 Ohio St., 390.
    The authorities are numerous in the reports of other states supporting this principle of construction. States. Wheeler, 29 Conn., 297; Sharpless s. Mayor, etc., 8 Pa., St., 160 ; State s. Blotter, 33Ind., 410; Borman s. State, 34 Ala., 235; Sioan s. Swan, 21 Fed. Rep., 299 ; Tiedeman’s Lim’s of Police Powers, section 2; Cooley’s Cons. Lim’s, p. *72; Vol..21 Am. & Eng’. Ene., p. 530.
    V. The statute in question, prohibiting the playing of base ball upon Sunday, lies plainly within that domain of legislative power commonly called the police power. 18 Am. & Eng. Enc., 739 ; Tiedeman’s Lim’s of Police Power, section 1; Stone v. Mississippi, 101 U. S., 818; Mayor of N. Y. s. Miln, 11 Peters, 139; Railroad Co. s.Husen, 95 U. S., 470; Beer Co. s. Massachusetts, 97 U. S., 25; States. Hoyes, 47 Me., 211; Lakeview s. Rosehill Cemetery Co., 70 111., 192; Commonwealths. Alger, 7 Cush., 85; People s. King, 110 N. Y., 423.
    VI. We advance from the principles previously contended for, to another principle which is properly a corollary to the proposition last above argued; viz. :
    The police power can only be exercised by legislative enactment, and it rests solely within legislative discretion to determine when the public welfare or safety requires its exercise. Tiedeman Lim. of Police Power, section 2.
    It is not essential to the exercise of the police power by the legislature, that the matter in respect to which it is exercised must be in its nature injurious ; or as the court below is reported to have expressed it, a matter malum in se.
    
    The cases reported as court decisions are numerous in which the courts sustain the exercise of the police power by legislatures in restraint of natural right, when the object to be gained concerns the protection of the public or security of its welfare.
    In cases of wager upon the result of an election.
    See numerous cases cited in notes on p. 996 of 8 Am. & Eng. Encyclopedia.
    In cases of contract for sale of grain or other personal property when the intent exists not to deliver the property. 8 Am. & Eng Encyc., 997, and cases cited in note 2; 8 Am. & Eng. Encyc., p. 1006 and cases cited in note 1 and p. 1015, note 1.
    In cases of adulteration of food or drugs': Oleomargarine, for butter. 1 Am. & Eng. Encyc., p. 740, note 1.
    Milk, when containing less than a certain per cent, of solids. State v. Smyth, 14 R. I., 100; Polinsky v. People, 73 N. Y., 65; Commonwealth v. Shaffner, 146 Mass., 512; State v. Campbell, 61 N. H., 404; 1 Am. & Eng. Encyc., p. 743, note 1, showing states which have laws on these subjects.
    
      In cases which, in the discretion of the legislature affect the health of the people.
    Putting limits within which the slaughtering of cattle shall be forbidden. 16 Wal., U. S., 36, Slaughter house cases.
    Protecting the water supply of cities. 1 Dillon Munic. Corp., section 146; Livingston v. Pippin, 31 Ala., 542; Pome v. (Jabot, 28 Ga., 50; LLale v. Houghton, 8 Mich., 458. Fixing qualifications of doctors and surgeons. Eastman v. State, 109 Ind., 278; PichaA'dson v. State, 47 Ark., 562; Robinson v. Hamilton, 60 Iowa, 134.
    Regulating location of cemeteries. 18 Am. & Eng. Encyc., p. 749, note 3.
    Compelling drainage or filling of stagnant waters. Winsloio v. Winslow, 95 N. Car., 25; Donelly v. Decker, 58 Wis., 461; Kennedy v. Board of Health, 2 Pa. St., 366.
    Forbidding smoking upon street cars. State v. Heidenhain, 42 La. Ann., 483.
    Forbidding- the growing of certain crops or keeping certain animals within a city. Green v. Mayor, etc., 6 Ga., 1.
    Regulating the rate of charges for services rendered by one who serves the public as by a railroad or warehouse. Munn v. 111., 94 U. S., 113.
    In cases concerning the preservation of public morals, prohibiting lotteries. Moore v. State, 48 Miss., 147; Stone v. Miss., 101 U. S., 814; Nolin v. Mayor, etc., 5 Yerger (Tenn.), 163.
    Prohibiting’ gambling or gaming-. Waugh v. Beck, 114 Pa. St., 422; Peoples. Weithoff, 51 Mich., 203; Gamer on v. State, 15 Ala., 383; Torney v. State, 13 Mo., 155.
    Restricting sales of intoxicating liquors. Tiedeman’s Lim’s of Police Power, section 103; Mugler 
      v. Kansas, 123 U. S., 623; State v. Donehey, 8 Iowa, 39&•, Lincoln Y. Smith, 27 Vt., 328; State y. Robinson, 33 Me., 568.
    Restraints on games and amusements. Tanner v. Albion, 5 Hill, 121; Commonwealth v. Colton8 Gray, (Mass.), 488 ; /Stoic v. Hoy, 29 Maine, 457; /Stoic v. Freeman, 38 N. H., 426; Walloch y. Mayor, eto., 3 Hun. (N. Y.), 87.
    Though the illustrations above cited give some intimation of the extent and variety of subjects upon which the police power is exercised by the legislature, yet they by no means cover the entire field. We beg from this court a brief attention to some of the subjects in which the exercise of the police power has been under their consideration. Buck v. State, 1 Ohio St., 61; Bliss v. Keans, 16 Ohio St., 54; Call v. Cincinnati, 18 Ohio St., 563; Bainbridge v. State, 30 Ohio St., 264; Palmer v. State, 39 Ohio St., 236; Anderson v. Brewster, 44 Ohio St., 576; Weller v. State, 53 Ohio St., 77; /Stoic v. Kelly, 54 Ohio St., 166.
    We contend that all these eases cited from Ohio Supreme Court decisions deny the principle which was assumed as the basis of the opinion given in the ease at bar by the court of common pleas, to-wit: That the police power could only be exercised on things immoral, or as it was also expressed, things mala in se.
    
    Aside from the many illustrations above given, which show the police power to extend to matters harmless in themselves, we beg to refer to the doctrine of crime in Ohio. FoutSY. State, 8 Ohio St., 111.
    VIII. The law forbidding the playing of base ball on Sunday should not be pronounced unconstitutional unless it can be shown to be plainly and without doubt repugnant to the constitution.
    
      In 21 Pa. St., 147, this principle is asserted by judges of every grade, both in the Federal and in the state courts, and by some of them it is expressed with much solemnity of language. 6 Cranch, 87.
    To the same effect is the doctrine stated in 6 Am. & Eng. Encyc., (2nd Ed.), p. 1085,. paragraph (bb) and note 6; Cass v. Dillon, 2 Ohio St., 607; Goshorn v. Purcell, 11 Ohio St., 653; Lehman v. McBride,, 15 Ohio St., 591; State v. Keridle, 50 Ohio St., 355.
    Solders, Jlogsett d? Tilden, for defendant in error.
    Brief of G. B. Solders.
    
    We shall seek to maintain:
    That said act, section 7032does not create an offense.
    Said act is in conflict with section 1 of the Bill of Rights as restricting and interfering with the inalienable right of a human being to enjoy life, to seek and obtain happiness.
    Said act is in conflict with section 7 of the Bill of Rights as being an act in aid of and seeking to enforce the observance of the first day of the week on religions grounds, and preferring the Christian religion.
    Said act is void in not containing the exception mentioned in section 7033 in favor of those who conscientiously observe the seventh day as therein mentioned.
    Said act cannot be justified as an exercise of police power.
    Of these claims in their order:
    
      First — It is in the nature of an. eos post facto law, in that it makes an act done, which when done is innocent, not prohibited, not criminal. Chitty’s Blackstone, Vol. 1, page 31; Blackstone’s Commentaries, 5.
    Section 7032a, does not declare any base ball playing an offense, because the will of the sovereign power does not indicate this. An offense or crime must be such at the time it was committed, because the sovereign power has declared that the act shall not be done, or has commanded that the act be done, in default either way, punishable. Any base ball playing on the first day of the week would become an offense, depending entirely upon the views of the various localities and counties of the state — lawful if the liberal sentiment of the community will tolerate it, and unlawful if the religious sentiment of the community disapproves. It is in the nature of an act depending’ entirely upon the popular will find not upon the will of the sovereign power in declaring’ the act to be an offense.
    Sections 7031, 7032, 7032a and 7033, which touch human conduct upon the first day of the week, contain the clause, “on complaint made within” the time stated, ten days in sections 7031, 7032 and 7033, and twenty days in section 7032a. All other sections of crimes and offenses in the state of Ohio fail to show this peculiar clause as to time.
    Second and Third Claims involve a constitutional question, an argument involving the relations of church and state, and the character which is sought by the advocates of Sunday laws, (the union of church and state,) to be given through secular power, to the day which they observe as a sacred day; not so much in obedience to the common labor statute as to the religious sentiments maintained by them as to how the day shall be devoted and to what purposes.
    
      Let us note, at the outset, what are the constitutional provisions bearing upon the question. Revised Statutes, Vol. 2, page 3209.
    Bill of Rights, section 1 : “All men are by nature free and independent and have certain inalienable rights, among which are those of enjoying and defending life and property, acquiring, possessing and protecting property and seeking and obtaining happiness and safety.” Anderson v. Poindexter, 6 Ohio St., 622; Morgan v. JSTolte, 37 Ohio St., 23.
    Those who have advocated Sunday laws, so-called, have shown an inclination to treat constitutional limitations lightly. Story on the Consti-' tution, Vol. 2.
    When human conduct is controlled upon one day in a manner different from other days, excepting the common labor statute, and regulates human action upon one day by prohibiting an act, which is not deemed by the state prejudicial to it or to its citizens upon other days, which Sunday laws do, such legislation is in furtherance of religious ascendancy over the human mind.
    “Webster on the Independence of the Judiciary,” Vol. 3, page29; 15 Pa. St., 18; 15 N.Y., 558; Cooley’s Con. Lim., 43 ; 1 Ohio St., 81.
    The first Sunday law was in the time of Constantine, March 7, A. D. 321, Neander, Church History, 300; see Carthage Convention year, 401; Schaff’s Church History, Vol. 2, section 27.
    History records the fact that after the doctrine of Christ became recognized in the Roman empire and thereafter spread to other portions of the then partially civilized countries, that in time the Papacy subordinated the civil power and continued to enforce the religious views of Sunday, not prohibiting common labor on the first day of the week on the basis of sanitary regulations, but entirely upon the basis of the religious views of the day.
    The first Brownist Sunday law, so-called, was passed in England in 1623.
    The next thing was a law aimed at traveling. In 1632, nine years after the first Sunday act, the law forbade “worldly work. ” A century and a half elapsed after this first Brownist Sunday law, so-called, before any work, (that is, one’s ordinary calling with the exceptions of works of necessity and charity) was forbidden on Sunday.
    The combined prohibition of work and play is found in the statutes of many states, as to the first day of the week, not necessarily in the same act prohibiting common labor, but in separate acts.
    We shall attempt to support the claim that all legislation from the earliest dawn of civilization are based upon the historic truth that Sunday laws represent and embody union of church and state. This, in tiie early decisions was ignored by the courts, as for instance, the celebrated case of Lindmuller v. The People, 33 Barber, N. Y., 548, relied upon so much as the main case in the state of New York, said latter case holding the contrary doctrine of Bloom v. Richards 2 Ohio St., 387, cited in said case which clearly declares and recognizes that there is no union of church and state in Ohio.
    In 1803 Georgia enacted a Sunday law requiring all persons to attend public worship. The Georgia statute is based upon the principle that Sunday is a holy day. Weldon’s case, 62 Ga., 449.
    The Iowa statute set Sunday apart as sacred. Davis v. Fish, 1 Green, 400.
    In New York, it seems to have been consecrated by the statute. 8 Johns, 290; Johnson’s case, 22 Pa. St., 102; Stockton’s case, 18 Ark., 186; North Carolina and. Tennessee had similar laws. Also South Carolina. State v. Ambs, 20 Mo., 314; 35 Neb., 614; Goursey v. Bath, 35 N. H., 530; Varney v. French, 19 N. H., 245; Moore v. Hagan, 2 Duv., Ky., 437; Davis v. Somerville, 128 Mass., 594.
    This indicates beyond all question that the main idea underlying such legislation is the religious view maintained as to how the day shall be utilized.
    The very object of the constitutional guarantees, “is to limit the power of the majority; to enumerated points which they shall not be permitted to decide.” 2 Ohio St., 387.
    Suppose the Israelites, Seventh-day Adventists and Baptists, under this sound constitutional principle of protection to the minority, should go to the legislature asking for protection in the same way that the advocates of Sunday laws ask, to enact a law compelling all people to abstain from the innocent acts prohibited in sections 7032 and 7032-a, in order to protect them in their rights in observing Saturday as their Sunday. What would be thought of that? Cooley, Con. Lim., 476.
    But it will be said that the Ohio labor statutes excepts those who observe the seventh day. Excepts them from what ? Section 7033 prohibits “common labor on Sunday” and then makes an exception in favor of those who conscientiously observe the seventh day of the week as Sabbath. The face of this statute indicates religious basis and religious views.
    The language of most Sunday laws is so general as to strongly support the idea that spiritual betterment of the abstainer from physical work is -what the state is aiming at, although it is sought to justify Sunday legislation on other grounds that is, sanitary benefits.
    Many American eases take this view, spiritual benefit, which is the established rule in England. Fenmueller v. Ridley, 5 B. •& C., 406.
    Another class of cases, while holding to the view that Sunday laws are essential religious regulations, 3et reason that their design is not to improve the spiritual condition of man, but to enforce rest upon him in order to prevent him from interfering with measures taken by other people for their own spiritual improvement. These cases may contend that the object of Sunday laws is to preserve good order and peace. 20 Howard Pr., 76. And that these laws are passed in order that religious exercise may be performed without interruption. Pierce v. Atwood, 13 Mass., 324. And to prevent the disturbance of our citizens in their religious devotions. Adams v. Gray, 19 Vt., 358. And to prevent the religion of the community from unseemly hindrance. Smith v. Wilcox, 24 N. H., 353.
    Williams case, 4 Tre., 400; The People v. Eavenor, 149 N. Y., 203; Lindmuellm' v. The People, 33 Barber, 548; 69 N. Y., 557 ; 140 N. Y., 514; People v. Gillson, 109 N. Y., 389; Cooley Con. Lim., 467; Tiedeman on Pol. Power, section 76.
    Article IV of the constitution of the United States says: “No religious test shall ever be required as a qualification for office of public trust under the United States.” By an' amendment: “Congress shall make no laws respecting the establishment of religion or promoting the free exercise. In 1796 a treaty was made with Tripoli in. which it was declared (Art. 11.) that: “The government of the United States of America is not in any sense founded upon the Christian religion.”
    Certainly the fathers of the constitution, the public men then (1796) representing the affairs of the infant nation .were competent to construe and know the meaning of constitutional provisions. This was the view that the fathers then maintained. Note how this is in conflict with the case of Lindmueller v. The People, in 33 Barber, 548.
    The inhibition in section 7033 is simply of common labor as distinguished from intellectual. Those then that observe the seventh day of the week as a religious day are exempt from said statute. Exempt from what? From the prohibition as to common labor? If this be true, then the first day of the week, as to the people who fall within this statute, observing the seventh day, is the same to them, and ought to be as a matter of right so far as civil power is concerned, as Monday, Tuesday or any other day of the week.
    If this be true, then why should the provisions of sections 7032 and 7032 «, so far as it relates to human conduct which is not of itself a breach of the peace, like rioting and quarreling, be binding upon them when the provisions in these two sections are not binding upon the Christians so far as the seventh day of the week is concerned.
    It seems that the legislature entertained like views, as evidenced by the act passed February 17, 1831, Vol. 29, page 161, and found in S. and C., Vol. 1, page 447, entitled, “An act for the prevention of .certain immoral practices. ” Cincinnati v. Bice, 15 Ohio, 225; Canton v. JVist, 9 Ohio St., 439; Thompson v. Vernon, 11 Ohio St., 688.
   Minshall, J.

John Powell, with others, was prosecuted in the police court of the city of Cleveland, on an information charging him in one count, with having on Sunday, May 16, 1897, participated in playing baseball, and, in a second count, with having exhibited a game of baseball playing, on certain grounds in the city — a charge for admittance having been made. The case was tried to a jury on a plea of not guilty. He was found guilty on both counts ; and, after a motion for a new trial made and overruled, was sentenced to pay a fine and costs of prosecution. The case was then taken to the court of common pleas on error, where the judgment was reversed and the defendant discharged on the ground that the section of the Revised Statutes, 7032«, under which the conviction was had, is unconstitutional. This section, among other things, makes it an offense, punishable by fine and imprisonment, for any one on the first day of the week commonly called Sunday, to participate in, or exhibit to the public in any “building” or on any “ground” in this state, “any baseball playing. ”

A bill of exceptions was taken by the prosecuting attorney to the ruling of the judge, and, on application, leave was given by this court to file the same.

The question presented by the bill is the validity of our Sunday laws. After so many years of acquiescence in their adoption, and, I might say, of almost unquestioned validity, these laws are now assailed on the ground that they violate the guaranties of personal and religious liberty contained in the'^rsTand seventh sections of our bill of rights. JEhese-questions may he better considered in their reverse order.

The seventh section secures to every citizen of the state the fullest liberty of conscience in matters of religion: No one can be compelled to support or observe any form of worship against his consent. If the observance of Sunday as a day of rest and abstinence from all secular pursuits, had for its object the enforcement of a religious requirement, there are few lawyers or judges that would undertake to sustain the statute as a valid enactment. It would clearly contravene the section of the bill of rights just referred to. But that they are secular in purpose and not made to enforce any particular form of religious observance is sustained by a consensus of opinion in the decisions of the courts of this country, rarely found upon any other subject. Indeed there is not to be found a decision of a court of last resort to the contrary, except that of the state of California, which has since been overruled by the same court. Ex parte Newman, 9 Cal., 502, overruled in Ex parte Andrews, 18 Cal., 679. And though the day adopted for the observance of rest may coincide with the religious persuasion of a large part of the people, though not with all, is not' regarded as infringing upon the rights of the latter, since no religious observance of any kind is enjoined. Those who desire can devote the day to religious observances ; others may do as they see fit, so that they do not engage in such secular pursuits as, in accordance with the policy of the law, are prohibited. The policy of Sunday laws is based upon the observed fact, derived from long experience and the custom of all nations, that periods of rest from ordinary pursuits are requisite to the well-being, morally and physically, of a people. If there were no such regularly recurring periods, there is reason to believe, that the masses would, become morbid in body and mind, crime would multiply, and degeneracy likely ensue. Rest recuperates the mind and body, gives new life and hope to the people, and cheerfulness and health attend renewed labor; and, as has been well observed, more, UDder these circumstances, can be accomplished in six days, than would otherwise be accomplished in seven. This is the foundation and policy of all statutes regulating the observance of a day of rest; and whether the day selected is one consonant to the religious views of a portion of the people or not, does not affect the validity of the regulation, where no religious observance is enjoined. Religious liberty does not consist in the right of any sect to oppose its views to the policy of a government. Such a claim would end in simple intolerance of all not in accord with the sentiments of the particular sect. Those who, as a matter of religious faith, observe the seventh day of the week are not prohibited from doing so; but they cannot insist that others shall do so, nor refuse to observe the day fixed by the state for secular reasons. There are sects who believe in polygamy, and adopt it as a part of their religion. But, however, conscientious they may be in entertaining such notions, if one of them should come into Ohio, and bring with him his wives, his religious scruples would not protect him on an indictment for bigamy.

The question however, is not an open one in this state. In Bloom v. Richards, 2 Ohio St. 387, decided in 1853, the whole subject was fully considered. Whilst holding that the making of a contract is not within the meaning of the term “common labor,” the statute as thus construed, was sustained as a secular regulation, that in no way interferes with any one’s rights of conscience. Thurman, J., in delivering the opinion said that “Acts evil in their nature, or dangerous to the public welfare, may be forbidden and punished, though sanctioned by one religion and prohibited by another; but this creates no preference whatever, for they would be equally forbidden and punished if all religions permitted them. Thus, no plea of religion could shield a murderer, ravisher, or bigamist; for community would be at the mercy of superstition, if such crimes as these could be committed with impunity, because sanctioned by some religious delusion. ” “We are then, ’ ’ he said, ‘ To regard the statute under consideration as a mere municipal, or police regulation, whose validity is neither strengthened or 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 recurring intervals, are too obvious to be overlooked. It was within the constitutional competency of the General Assembly to require the. cessation of labor, and to. name the day of rest. It did so by the act referred to, and, in accordance with the feelings of a majority of the people, the Christian Sabbath was very properly selected. But, regarded merely as an exertion' of legislative authority, the act would have had neither more nor less validity had any other day been adopted. ’ ’ He then cites a number of cases, particularly Specht v. The Commonwealth, 8 Ban., 312, and Charlston v. Benjamin, 2 Strobh, 508, which fully support his opinion as to the secular character of Sunday laws and the policy on which they rest.

Among the eases that may be cited, sustaining the enactment of Sunday laws, in addition to those already referred to, are the following: Watts v. Van Ness, 1 Hill, 76; Shover v. State, 5 Eng., 259; State v. Elmer, 20 Mo., 214; Hall v. State, 3 Kelly, 18; Bode v. State, 7 Gill, 326; Jones v. People, 14 Ill., 196; Story v. Elliott, 8 Conn., 27; Commonwealth v. Har, 122 Mass., 40; People v. Havnor, 149 N. Y., 195; Hennington v. State, 90 Ga., 396, affirmed by the Supreme Court of the United States, 163 U. S. 299. They are also fully collected and well considered in the opinion of Fisher, J., in State v. Goode, 5 Nisi Prius Rep., 179. And it is proper to call attention to the able dissenting opinion of Field, J., in Ex Parte Newman, 9 Cal., 518, since the decision of the majority in this ease was overruled by an unanimous decision in the subsequent case of Ex Parte Andrews, 18 Cal., 679; and the law of that State “ for the better observance of the Sabbath,” sustained, though the same Constitutional objections were urged against it, that are made in this case, the provisions of their bill of rights being in this regard substantially the same as our own.

But it is further claimed that the statute violates the guaranty of personal liberty contained in the first section of the bill of rights. This, though one of the great maxims of our form of government, has never been regarded as limiting the power of the legislature in the enactment of such good and wholesome laws as are required to secure the peace, health and good order of society The learned Sedgwick in his work on Statutory and Constitutional Construction, 153, commenting on the provisions usually contained in the bill of rights of our American Constitutions says: “They are of no little value as safeguards against error and injustice; but I think they must be regard ed rather as guides for the political conscience of the legislature, than as texts of judicial duty. Important as they are, still they are expressed in such general terms as necessarily to admit of great and prominent exceptions. As to the enjoyment of life and liberty, property, and the pursuit of happiness, all these rights are daily interfered with by the legislature, without scruple for the common welfare. I suppose it be must admitted that, in a judicial sense, these clauses could not easily be made available.” Liberty, as understood in this country, is not license, but liberty regulated by law. The personal liberty of every man is subject to such reasonable regulations as, in the wisdom of the legislature, are regarded necessary to promote, not only the peace and good order of society, but its well-being. This objection to the law is well answered in the clear and forcible language of Justice Field, in the dissenting- opinion before referred to. “If,” he says, “it be admitted that the legislature possesses the right to restrain each one in his freedom of conduct only so far as is necessary to secure protection to all others, from every species of danger to person, health, and property, .no inference can be drawn against the validity of the act under consideration. The character and mode of protection, and what is dangerous to the person, or to health and property, must necessarily be left to its determination, and in the first section of the Constitution no inhibition to the exercise of its power in this respect can be found. 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. The legislature has so considered it, and the judiciary cannot say that the legislature was mistaken, and, therefore, the act is unconstitutional, without passing out of its legitimate sphere, and assuming a right to supervise the exercise of legislative discretion in matters of mere expediency,” and which he proceeds to say cannot be done.

We have carefully considered the able argument of counsel for the Judge whose ruling is under review. The gist of his argument is that the purpose of the act is to enforce the observance of Sunday as a religious requirement; and calls attention to the claims and views of those most zealous in its enforcement. No doubt, many who advocate Sunday observance, particularly the'Christian ministry, do so from the persuasion that our Sunday laws are designed as religious observances only, and insist that they should be more rigidly enforced that the people may be more accessible to the influences of the Christian pulpit. However desirable this may be from the Christian standpoint, it is certain that it is not in the power of the legislature to accomplish this by any direct legislation, so long as religious liberty is guaranteed, as it is, in our bill of rights. This was settled by the case of Bloom v. Richards, supra. The fact, however, that such views are entertained of the purpose of the law and may have controlled the votes of many who supported it in the legislature, cannot affect its real character and proper construction. The purpose and object of a law are to be determined by the language applicable to its subject-matter. Speaking to the same point, Baldwin, J., in Ex parte Andrews, 18 Cal., 685, said: “The act itself in the body of it explains in what manner the day was to be observed, and shows that the object of it was only to require duties purely civic or secular.” A law enacted for sufficient reasons of a secular nature — as the public health, cannot be held invalid, because there is a variety of religious notions upon the subject. Nor can the state be prevented from adopting certain civil regulations, recommended by a wise public policy, simply because found to be in accord with the teaching of some religion. There is probably no religious observance that could not be enforced as a secular duty, without violating the guaranty of religious liberty, where there are sufficient secular reasons for doing so, independent of what is ordained as a matter of religion. In general, where there are secular and religious reasons for the same observance or law, the observance or law may be adopted as a civil regulation by the legislature for the attainment of the secular purposes; and when enforced for these purposes alone, no one can complain of it, simply because the observance or law finds support in the precepts of some religion. It is enjoined for secular and not religious reasons. It might be questioned whether the Jewish Sabbath was prescribed purely as a religious observance and without any regard to the temporal welfare of the people. It must be remembered that the Jewish government was in the nature of a theocracy, and its precepts were given without much regard to what was of a spiritual nature, and what was secular and related to the temporal government of the people alone.

Exceptions sustained.  