
    2390.
    Kellam v. The State.
    Accusation of misdemeanor; from city court of Baxley — Judge Padgett. October 25, 1909.
    Argued March 8,
    Decided April 6, 1910.
    
      Crovatt & Whitfield, for plaintiff in error.
    
      G. H. Parker, solicitor, contra.
   Hill, C. J.

1. Tlie legislature of this State has expressly or by necessary implication made it legal to operate passenger and mail trains on Sunday. Penal Code, §420. Therefore, any work necessary to the running of such trains is be regarded as a “work of necessity,” and is within the exception of section 422 of the Penal Code, which prohibits any person from pursuing his business or the work of his ordinary calling-on the Lord’s day. Southern Ry. Co. v. Wallis, 133 Ga. 553 (66 S. E. 370).

2. The furnishing of water for the use of locomotives is necessary to the operation of trains, and the necessary repair of a water tank at a point on the railroad where it is customary for locomotives to obtain water, when it appears that a supply of water can not be conveniently obtained elsewhere, is a “work of necessity;” and the conviction of an employee of the railroad company of a violation of section 422 of the Penal Code, because of his act in repairing such a tank on the Sabbath day, is unauthorized. Judgment reversed.  