
    In Bank.
    Dec. Term, 1846.
    The City of Cincinnati vs. Jacob Rice.
    The prohibition of “ common labor” upon the Sabbath, in the act for the prevention of immoral practices, embraces the business of “trading, bartering, selling or buying any goods, wares or merchandise.”
    (The ordinance of the city of Cincinnati, prohibiting such “ trading,” &c., ow Sunday, is-void as to those who conscientiously do observe the seventh day of the week as the Sabbath.
    This case comes before this Court by Writ of Error to the Court of Common Pleas of Hamilton County.
    The case made upon the record is this: Jacob Rice, the defendant, was brought before the Mayor’s Court of Cincinnati, on the 27th of August, 1845, charged with a violation of one of the ordinances of the city, in selling goods upon the first day of the week, commonly called Sunday. Upon the hearing, the defence relied upon was, that the defendant was a Jew, and conscientiously observed the seventh day of the week as a Sabbath. This fact was admitted, as appears by the transcript from the Mayor’s Court. The Mayor did not consider this as any defence, but found the defendant guilty and assessed a fine against him of ten dollars, for which judgment was rendered, together with costs.
    To reverse this judgment, the defendant removed the case to the Court of Common Pleas by certiorari, in which court the judgment of the mayor was reversed and judgment entered against the city for costs.
    To reverse this latter judgment, this writ of error is prosecuted, and the error assigned is, that the Court of Common Pleas erred in reversing the judgment of the Mayor’s Court.
    
      Samuel M. Hart, for Plaintiff in Error.
    First: The first question arises upon the phraseology of the ordinance, whether the defendant was a common laborer, as appears by this record, within its true intent and construction. His counsel argued, that the term “ common labor,” meant a man’s usual occupation, of what kind soever it might be, and that the ordinance should be construed just as though it had said, “ trading, bartering or selling, or buying any goods, wares or merchandise, or .at any other common labor.” Against this interpretation, however, there are many reasons to protest:
    1. The terms “labor” and “laborer” have meanings well ascertained in law, applicable to occupations and men, quite different from the occupation of the defendant and from himself. In Blackstone’s chapter “ Of the Civil State,” we find not only the degrees, but the occupations of all private citizens marked out as the law has fixed them. “ The rest of the £ commonality,” says Sir William, “ are tradesmen, artificers £ and laborers, who, as well as all others, must, in pursuance of £ the statute 1 Henry V, chap. 5, be styled by the name and £ addition of their estate, degree or mystery, and the place to £ which they belong or where they have been conversant, in all £ original writs of actions, personal appeals and indictments, £ upon which process of outlawry may be awarded, in order, as £ it should seem, to prevent any clandestine or mistaken outlaw- £ ry, by reducing to a specific certainty the person who is the £ object of its processI Bla. Com. 407. Therefore, to describe Jacob Bice as a “ laborer ” and not as a “ tradesman,” in an indictment where description is required, would be bad upon a plea of abatement; Arch. Crim. PI. 26. Nor is this distinction made by the common law a whit plainer than that existing in the very nature of things. If one were to call a man, whose business is merely buying and selling, a laborer, it would shock any, the most ignorant man’s sense of propriety. And to prevent the least doubt, the ordinance speaks not of “ labor ” only, but of “ common labor,”— that in which we may suppose the vast majority of mankind to be habitually engaged, as distinguished from mechanical or other labor, requiring the exercise of intellect and skill.
    
      2. Although the term ££ common labor,” in the act of 17th February, 1831, (Swan’s Stat. 255,) should be supposed to embrace all sorts of employment, the term cannot have that extensive signification in the ordinance; for the ordinance itself specifies bartering, trading, selling, &c., as quite distinct from common labor; and “ all words,” as Lord Bacon says, “ wheth- £ er they be in deeds or statutes, or otherwise, if they be general, £ and not express and precise, shall be restrained unto the fit-c ness of the matter and the personBacon’s Maxims, Regula X. And Blackstone tells us to resort to the context whenever the phrase is doubtful, ££ with which (the context,) it may be of £ singular use to compare a word or a sentence, whenever they £ are ambiguous, equivocal or intricate. 1 Black. Com. 60.
    3. If we so construe this ordinance as to insert the word ££ other ” before the words ££ common labor,” thus torturing its language to make’bartering, trading, selling, &c., common labor, we shall turn the whole ordinance into ridicule. For, be it observed, that when we have thus converted bartering, trading, selling, &c., into common labor, we have converted sporting, rioting, quarreling, hunting, shooting, &c., into common labor likewise. Let him that runs, read :
    ££ That any person of the age of fourteen years or upwards, £ who shall be fohnd, on the first day of the week, commonly £ called Sunday, sporting, rioting, quarreling, hunting, fishing, £ shooting, trading, bartering, of selling, or buying any goods, £ wares or merchandis’d, or at any [other] common labor, works £ of necessity and charity excepted, shall be fined in any sum £ not exceeding twenty dollars.”
    The plain rules of grammar do not admit the interpolation, without entirely destroying the sense of the section.
    ■ Fourth: If, by “common labor,” the city council meant any business-in which a man is ordinarily, from ■ day to day, employed,' as our opponents argue, then a lawyer, a physician, a steamboat captain, a music master or a circus actor, is a common laborer in Cincinnati, though certainly no where else.— W e' need not dwell upon the manifest absurdity of this notion, but call attention to the second section of- the ordinance, which, according to Blackstone, will be ££ of singular use ” to explain the first section. That declares, “ if any tavern, coffee house 4 or restaurat keeper, shall sell or barter any spirituous liquors 4 on the first day of the week, commonly called Sunday, (ex-4 cept to travelers on a journey,) such tavern, coffee house or c restaurat keeper, or other person so offending, shall, for the £ first offence, be fined any sum not exceeding twenty dollars, 4 with costs of suit; and for a second offence shall, moreover, £ forfeit his license.” Now, if the city council had, by the words 44 common labor,” intended the ordinary occupation of any man, it is obvious that the keepers of taverns, coffee houses and restauráis, would themselves be common laborers; and as there is no exemption made for an Israelite in those employments, the second section of the ordinance would be inconsistent with the first.
    Upon the whole, we can see no pretence of argument for any such interpolation as our opponents desire, nor for any construction of the ordinance which amounts to such an interpolation.
    Second: The second proposition of the defendant’s counsel is, that this ordinance contravenes the act of the Legislature, 44 for the prevention of certain immoral practices,” passed February 17th, 1831. Swan’s Stat. 255.
    That act declares, ££ that if any person of the age of fourteen £ years, or upwards, shall be found on the first day of the week, 4 commonly called Sunday, sporting, rioting, quarreling, hunt-4 ing, fishing, shooting, or at common labor, (works of necessity 4 and charity only excepted,) he or she shall be fined in a sum 4 not exceeding five dollars, nor less than one dollar: provided 4 nothing herein contained shall be construed to extend to those 4 who conscientiously do observe the seventh day of the week 4 as the Sabbath; nor to prevent families, emigrating, from 4 traveling; watermen from landing their passengers; superin4 tendents or keepers of toll bridges from attending and super- £ intending the same; or ferrymen from conveying travelers 
      ‘ over the waters, or persons removing their families, on such £ days.”
    The second, section declares, “ that if any tavern keeper, £ or other person, shall sell or barter any spirituous liquors on ‘ the first day of the week, commonly called Sunday, (except £ to travelers on a Sunday,) such tavern keeper, or other per- £ son, so offending, shall be fined in a sum not exceeding five £ dollars.” Swan’s Stat. 256.
    In reference to this matter, it was argued below that, wherever the State had legislated, the city could not legislate. We might admit, for the purpose of this case, so much of the ordinance as follows the terms of the statute to be void; and thus we should leave trading, bartering, buying and selling upon Sunday, as offences not created by the statute, and not therefore exempted from city legislation. 'One part of an ordinance may be void, and the remainder effectual. Rogers v. Jones, 1 Wend. 260; Rex v. Faversham Fishermen’s Company, Q Term Rep. 356; 2 Kyd on Corp. 155.
    But we assert that an ordinance is not void merely because the State may have enacted a law upon the same subject. In Roger v. Jones, the Supreme Court of New York decided the very question. Per Woodworth, Justice, delivering the opinion of the Court: ££ It is said, that the bylaw of a town or a cor- £ poration is void, if the Legislature have regulated the subject £ by law. If the Legislature have passed a law regulating as to £ certain things in a city, I apprehend the corporation are not £ thereby restricted from making further regulations. Cases of ‘ this kind have occurred, and never been questioned on that £ ground; it is only to notice a case or two out of many. The £ Legislature have imposed a penalty of one dollar for servile £ labor on Sunday, the corporation of New York have passed £ a bylaw imposing the penalty of five dollars for the same ‘ offence. As tó storing gunpowder in New York, the Legisla- £ ture and corporation have each imposed the same penalty. £ Suits to recover the penalties have been sustained under the £ corporation law;” 1 Wend. 261. Our very case, it will be observed, is here cited as an illustration.
    
      And this power must belong to a municipal corporation by the very nature of-its establishment.
    Third: But, it was argued in the Common Pleas, although the Legislature might pass a law to prohibit people from trading on Sunday, the city council has no such power.
    Upon the contrary, we maintain that this subject of Sabbath observance, this prohibition of trade on particular days, is peculiarly within the province of municipal government. It is a part of the minor morals, if we may indulge the term, which can never be wisely controlled by a Legislature, overrun with more important business, and unacquainted with the temper of people in different neighborhoods. And if any line of distinction can be drawn between powers of general legislation and of municipal legislation, that line will leave this subject to such bodies as the city council. But we need no speculation upon principles here. The eighth section of the charter of Cincinnati declares:; “That the said city,council shall have power, £ and it is hereby made their duty to make and publish, from £ time to time, all such ordinances as shall be necessary to se- £ cure said city, and the inhabitants thereof, against injuries by £ fire, thieves, robbers, burglars, and all other persons violating £ the public peace; for the suppression of riots and gambling, £ and indecent and disorderly conduct; for the punishment of £ all lewd and lascivious behavior in the streets and other pub- £ lie places of said city, and for the apprehension and punish-c ment of all vagrants and idle persons. They shall have £ power, from time to time, to make and publish all such laws £ and ordinances, as to them shall seem necessary, to provide £ for the safety, preserve the health, promote the prosperity, and £ improve the morals, order, comfort, and convenience of said £ city, and the ^inhabitants thereof;” Digest of Ord.' 10,11. We can scarcely imagine a larger delegation of power over subjects of this character. Under terms far less extensive, the Supreme Court of the United States decided that the city of Philadelphia could accept a devise for the purposes of education ; (Vidal v. Gerard’s Executors, 2 How. 187, 189, 190;) and education upon a peculiar and questionable system.
    
      Fourth: Lastly, it was contended below that this ordinance violates the constitution of Ohio.
    And in this place we are referred to the third section of the eighth article. .We there find, in our bill of rights, the declaration, “ that all men have a natural and indefeasible right to ‘ worship Almighty God according to the dictates of con- ‘ science; that no human authority can, in any case whatever, ‘ control or interfere with the rights of conscience; that no ‘ man shall be compelled to attend, erect, or support any place ‘ of worship, or to maintain any ministry, against his consent; ‘ and that no preference shall ever be given, by law, to any re- ‘ ligious society or mode of worship, and no religious test shall ‘ be required as a qualification to any office of trust or profit.” Swan’s Stat. 35.
    Now, the ordinance in question clearly does not violate a Jew’s right to serve God according to his own judgment. How it should have this effect, one can easily see; for, although the Israelite’s religion teaches him not to buy and sell on Saturday, surely there will be no attempt to say that it enjoins him to buy and sell on Sunday. His conscience forbids him to violate the Sabbath of his people, but it does not compel him to violate the Sabbath of others. In The Commonwealth v. Wolf,- 3 S. & R. 50, it was indeed urged that there may be Jews who “make ‘ it a point of conscience to show, by plain, open, unequivocal ‘ acts, that the Christian institution of Sunday is abhorrent to £ their minds.” But the Court answered that, “ the invaluable ‘ privilege of the rights of conscience ” was never designed to shelter those persons who took pleasure in showing “ their con- ‘ tempt and abhorrence of the religious opinions of the great ‘ mass of the citizensand a very proper, answer it was.
    But we are told that we have, by means of this political regulation, given a religious preference. To test the charge, let us consider similar cases, and cases of municipal legislation.
    
      Mayor of New York v. Slack, 3 Wheeler’s Criminal Cases, 237. Cities may forbid, by penalty, burials of the dead within their corporate limits; even in ancient burial grounds. Now, we all know that some religious sects consecrate their places of interment, and deem it wrong ever to use the ground for other purposes. But these sects must yield to a sanitory regulation, and abandon the old graveyard, with all its holy attributes and recollections, for some new place of the dead. Moreover, burial grounds may be, and have been, appropriated to public use, for squares and streets, under our constitution. Yet how absurd would it be to argue that, in either of these examples, a political regulation had given the preference to religious societies which do not consecrate their places of interment over those which do.
    
      Permoli v. The First Municipality, 3 How. 589. Cities may forbid, by penalty, the exposal of a corpse, at public prayers for the dead, within their corporate limits. This regulation was enacted by the council of New Orleans, as early as 1827, to prevent the spread of contagious diseases; and all the Catholics were compelled to carry the bodies of their deceased relatives to the Obituary Chapel, outside of the city, for the last rites of their church. But shall we be told that here is a preference, by political regulation, to those sects which have no prayers for the dead over those which have ?
    We might here stop. The proposition cannot be enforced more strongly than its own terms enforce it, by ever so many arguments and illustrations. No preference has been given to the Christian Church, nor to the Christian mode of worship at all; and no preference has been given to the individual Christian over the individual Jew, which could be avoided in the nature of things. For, if Saturday had been chosen, the Jewish professor would have been preferred; if Friday, the follower of Mohammed. And so through all the days of the week; for travelers tell us that each day is holden sacred by some sect or people on earth. But some day must be chosen, and why not the Sabbath of the vast majority of our citizens? The fact that the Jew, if he abstain from work both Saturday and Sunday, will have fewer days in which to amass wealth than the Christian, proves nothing to this question. For the Catholic has his holidays, by the observance of which he also is 'prevented in the race to get rich. It would, at most, furnish an argument that Saturday, as well as Sunday, should be kept sacred by the whole people, a point to which we have alluded already, but cannot now discuss.
    
      Brough fy Zhnn, and E. R. Norton, for the Defendant.
    It is argued for the city, that the exemption only extends to common laborers, and not to common labor, and that defendant being a tradesman, is not exempted, although a conscientious Sabbatarian, &c.
    We set out with the proposition, that the Court should endeavor so to construe this ordinance as to- make it harmonize with natural justice, and with the constitution and laws of the State. Acts in pari materia are to be construed together, and in such manner as, if possible, to give effect to each. Bodge v. Gridley, 10 Ohio Rep. 176; Ibid. 452; 2 Mass. Rep. 143 ; 9 Cowen, 437.
    And the construction which we suggest, and upon which we respectfully insist, is that which distinguishes the acts, specified into two classes — thus :
    First: Pastimes and Offences.— Sporting, rioting, quarreling, hunting, fishing and shooting.
    Second: Lawful Avocations.-— Trading, bartering, selling, buying, &c., or any common labor.
    That the phrase “ any” has relation to trading, &c., and has the same signification as though the word other occurred directly after it. “ Trading,” &c., or any other common labor, &c.
    That the words “ trading, bartering,” &c., are but so many specifications of kinds of common labor, and the words “ or at any common labor ” thrown in to save time, as it were, by grouping all under the generic phrase.
    The exception in the second section is, then, as broad as the enacting clause, and is pertinent and sensible, and the law harmonizes with itself, and with the higher law of the Constitution ánd the State Legislature. . '
    On the other hand, the construction for which the counsel for the city contends, as being that upon which the judgment of the Mayor undoubtedly was grounded, is, that the acts enumerated should be classified into —■
    First: Pastimes and offences, and lawful avocations; thus, sporting, rioting, quarreling, hunting; fishing, shooting, trading, bartering, buying or selling, &c.
    Second: .Common labor. And that the latter aloné is excepted by the proviso, and all of the former class indiscriminately swept within the. operation of the penalty. .
    Before Considering the objections to this view, we beg leave to quote another general rule, of the highest authority, as ,to the construction of statutes. ' It is in , the language of Chief Justice Marshall, in United States v. Fisher ei at, 1 Cond. S. C. Reports, 425. . • • '■
    Where rights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, the “legislative intention must be expressed with irresistible clearness,” to induce a court of justice to suppose a design to effect such objects.
    There is not a word in this lucid passage but is pregnant with meaning and force, in respect to the argument we are about to submit.. If we can show that rights are infringed — that fundamental principles are. overthrown — that the general principle of the law is departed from, in the construction contended for on the opposite 'side, will not this Court, too, say the legislative intention must be expressed with irresistible force, before we can suppose such an intention ? And ■ is it so expressed in the view they present? Place the emphasis upon the word any —■ “ or at any common labor ”;— and the réading we insist upoii is, in point of fact, the plain, natural and common-sense reading of the clause.
    It is admitted by plaintiff’s counsel, .that the term “ common labor/’ in the act of 1831, may embrace all sorts of employment; yet it .cannot have that extensive signification in the ordinance, because that enumerates, “bartering, trading,” etc., before using the comprehensive phrase. If the greater includes the less, then the enúmeration here spoken of is-mere surplus-age; it is merged in the comprehensive phrase. On the other hand, if the- enumeration is used with the intent to take it out of that phrase; then it is an infringement of rights — an infraction of fundamental principles, and a departure from the general system of the, law; and, therefore, not only is the intention to be most clearly manifest, but the power so to legislate must be equally apparent.
    As to the extent of this phrase “ common labor,” let it, in the language of Lord Bacon, “ be restrained unto thé fitness of the matter and the person.” The proposition of plaintiff’s"' counsel is, that “ common labor ” is that in which we may suppose the vast majority of mankind to be habitually engaged, as distinguished from mechanical or other labor, requiring the exercise of intellect or skill, and that' such “ common labor ” is protected under the proviso. According to this argument, a dozen wood sawers, or as many street pavers, might pursue their avocations, in the immediate vicinity of a place of worship, on the first day of the week, and, if they had conscientiously observed the preceding day, they would be justified in so doing. Nay, farther; the defendant himself, and others of his persuasion, might do the same thing, although their usual avocations on other days of the week were widely different, and rest themselves with perfect security upon the saving clause of the city ordinance. Yet if one of them, instead of this, pursues his ordinary avocation on that day, without infringing upon the rights or consciences- of .others, he becomes amenable to the penalty of the law. Now, to what result does "this reasoning lead us 1 “Common” labor, upon the first day of the week is’protected. Why so ?' Because he who performs it, conscientiously observes .the seventh day of the week as the Sabbath, and the constitution will not permit his right of conscience to be restrained.— All very well; But the Israelite, whose ordinary avocation is-merchandising, may not pursue it on the first day of the week. Why ? Does he not conscientiously observe the seventh day ? Certainly. Can you restrain his right of conscience? No. What then ? . Why, his ordinary avocation, in the eyes of the city Fathers, is not “ common laborand though he have a conscientious right to saw wood, or pave streets on that day, he has no such right to pursue his ordinary avocation, if it be any other than such common employment.
    The proposition we submit, is, that, the phrase “ common labor,” i¿ to be construed in reference to the man himself, and that the “ common labor ” of every one is that which pertains to his ordinary avocation. The drayman, the mechanic, the farmer, the clerk, the merchant, the physician, the attorney, the judge and the divine, all labor in their respective callings. It is all labor, and we are all laborers. Whether it be physical labor alone, or of the, physical and intellectual powers combined, it is still labor — still the result of the primeval sin and curse, “In the sweat,of thy brow shalt thou eai: thy bread.” And it is all “ common labor,” because it is labor common to our respective pursuits in life. And this, we contend, is the correct construction of the phrase “ common labor,” as well in the ordinance as in the statute.
    The argument which is based upon the relative provisions alike of the first and second sections of the ordinance and the statute, and a comparison between the keeper of a tavern or coffee house, and a merchant or mechanic, following his usual occupation, is utterly unsound. The one is exercising a calling which the law has claimed and exercised the right and power to control, from the very organization of the State; one in which he has no rights save what he acquires from the law itself, and in which he may be restricted; the other is in the enjoyment of a natural and indefeasible right. True, that in the exercise of it he is subject to tlm well settled and defined principles of law that govern the intercourse of men; but his calling cannot be singled out and struck down because it is not sufficiently “common” or menial in its "character.
    
      But, it is asked, what is the office of the word “ common,” prefixed to “labor,” if it be not- thus to distinguish between classes and grades of employment. The answer is, that as the statute describes an offence and affixes a punishment, it contemplates the existence of a motive to do evil in the transgressor. The man who observes the seventh day of the week, and quietly goes about his ordinary avocations on the first, is not in motive or design, which is the language of the criminal law, a transgressor; and this, because he Is engaged in that which is, with him, “ common labor.”
    Again, the inquiry is made, why, -if the city council Intended to include the ordinary occupation of a citizen, in the words “ common labor ” used in the proviso, did they insert thq prohibition against bartering, selling, &c., in the first section? We answer, that the office of the whole ordinance, taken together, is to prohibit all from either buying or selling, who afe not protected by the saving clause. Though under the statute and ordinance both, as we construe them, the Israelite is permitted, on account of, his religious faith, to vend his wares on the first day of the week, and there is no power to prohibit him from so doing; yet it is perfectly competent to prohibit a traffic with him on that day, by any others than those who hold a like religious faith. His right to sell, if that be his usual occupation, his “ common labor,” and the right of others holding to like faith and observances, to buy, are matters which cannpt be restricted. The right of others to vend merchandise on that day, even as an ordinary occupation, is restrained by the statute, but the traffic of those not Israelites, and so amenable to the general laws in regard to the Sabbath, with such as are permitted to vend, is not restricted by the statute; and the office of the prohibition is to remedy this omission, and nothing more. To this end it is competent; beyond this, it has no power.
    The ground we assume as to the relative positions of the ordinance and the statute, are not fully or fairly statéd by plaintiff’s counsel. We submit this proposition, and conceive it to be well settled law, that where the act of á corporation, either by express words or necessary implication, contravenes the letter or spirit of a- statute law of the State, upon the same it is necessarily void. Marietta v. Fearing, 4 Ohio Rep. 432.
    The policy of this statute is to require a due observance, of the first day of the week as a Sabbath. Yet it is marked by a great and distinctive principle, and that' is, that its provisions shall not be operative upon those who conscientiously observe the seventh day instead.
    For the purpose of the argument, let it be conceded, that within the policy of the law, a municipal corporation has the power, within its jurisdiction, to legislate upon the same subject, and in so doing, to increase the punishment, or embrace other offences against the Sabbath than those which are named; does it follow, by parity of reasoning or correct legal conclusion, that such corporation has also' a right to infringe the principle of the law, by substituting a saving clause widely different, and far more restrictive than that which the statute contains ? Most assuredly not. Such a doctrine is too absurd in theory to be maintained by the Courts, as it would be too dangerous in practice to be submitted to by the citizen.
    The counsel for the city has labored to controvert this position, by a citation of authorities, all of which fall within the first, without impairing the latter point. In Rogers v. Jones, i Wend. 260, it was held, that the Legislature of New York, having fixed a fine of one dollar for servile labor on Sunday, the corporation of the city of New York might increase it to five dollars; and this is said to be a case in point. Not so. The increase was within .the policy of the. law; and we are not advised that any rights were impaired. In like manner, the ordinance now under consideration increases the maximum penalty of the statute from .five to twenty dollars; but that is not adduced as a violation of the statute. So as to penalties for storing of gunpowder, cited in the same case. The Legislature had never acted upon the subject. The principle is not shaken.
    
      But the learned counsel lays stress upon the phraseology of the statute. “ Nothing herein contained shall be construed,” &c. “ A simple exemption from the force of that statute, not ‘ from liability under any other statute, or any municipal ordi- * nance.” The technicality is a mere grasp at a straw; a quibble unworthy the case or the counsel. Is hot the statute an existing law of. the State ? Does it riot, by its very exemption, declare a great principle, and fix the rights of the citizen under it ? And may a municipal corporation restrict the one and infringe the other, because not prohibited in express terms from so doing? Most certainly not.
    We submit, then, that if the construction which is claimed by the city be put upon the ordinance, that it is in letter and in spirit repugnant to and contravenes the general law of the State; not because the corporation has legislated upon the same subject, but because in s.o doing it has undertaken to restrict the proviso of the statute, and limit the rights of the citizen, which the constitution has guarantied, and the statute confirmed unto him; and that insomuch as it does so, it is null and void.
   Hitchcock, J.

The complaint which was the foundation of the proceedings in this case, was based upon an ordinance of the city of Cincinnati, “for.the prevention of certain immoral practices.” The first section of this ordinance is as follows:

“ Be it and it is hereby ordained, by the City Council of Cincinnati, that any person of the age of fourteen, years or * upwards, who shall be found, on the first day of the week, * commonly called Sunday, sporting, rioting, quarreling, hunt- ‘ ing, fishing, shooting, trading, bartering or selling, or buying any goods, wares or merchandise, or at any common labor, 1 works of necessity and charity excepted, shall be fined in any * sum not exceeding twenty dollars.”

In the second section is found a proviso, as follows:

“ Provided, nothing contained in the first section of this or- dinance, in relation to common labor, shall be construed to £ extend to those who conscientiously do observe the seventh £ day of the week as the Sabbath.”

It may, for present purposes, be admitted, that the city council, under the general proviso delegated in the city charter, had power to pass this ordinance, provided the same does not contravene the constitution or some positive legislation of the State. But it is insisted by defendant’s counsel, that, by a proper construction of the ordinance, a man whose ordinary business is to sell and buy goods, wares or merchandise, and who transacts such business on the first day of the week, is within the proviso, if he conscientiously observes the seventh day as a Sabbath. That, in thus transacting his ordinary business; he is but in the performance of ££ common labor.” It is further argued, that unless such be the proper construction, the ordinance does, in fact, contravene a positive law of the State.

The words of the ordinance are, ££ trading, selling or buying any goods, wares or merchandise, or at any common labor,” provided, that the prohibition “ in relation, to common labor, shall not be construed to extend,” &c. Taking the phraseology of the first section, together with .the .proviso, it might, perhaps, be concluded, that it was intended to make a distinction between ££ trading, buying or selling,” and ordinary or ££ common labor.” And, in construing the bylaws or ordinances of a corporation, or in construing a statute, it is generally safe to adopt the most obvious meaning of the law to be construed. But if such construction will defeat the operation of sorpe other existing statute, such other construction should be adopted, if it can be done without doing violence to the language, that both may have effect.

In the first section of the ££ act for the prevention of immoral practices,” it is enacted, “ 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, quarrel- £ ing, hunting, fishing, shooting or at common labor, works of £ necessity or charity only excepted, he or she shall be fined in £ a sum not exceeding five dollars, nor less than one dollar: { provided, nothing herein contained shall- be construed to ex- tend to those who conscientiously do observe the seventh day of the week as the Sabbath,” &c.; Swan’s Stat. 255. It will be seen, that the city ordinance, before referred to, is upon the same subject matter with this section of the statute, and it is an exact transcript of the same, with the interpolation of the words “ trading, bartering or selling, or buying any goods, wares or merchandise,” previous to the words or at common labor.” , -

Now, how is this general law of the State usually understood and construed ? Does it admit or license “ trading, bartering or selling, or buying any goods, wares or merchandise,” on the first day of the week, while ordinary labor is prohibited ? Can the merchant keep open his store, and vend his goods on this day, while the farmer is compelled to abandon his ordinary occupation ? Such has never been understood to be the meaning of the law. But, if trading or merchandising is prohibited on this day, it is only because the transaction of this description of business is considered to be within the meaning of the terms “ common labor.”

It seems to be admitted by counsel for the plaintiff in error, that, in giving a construction of the general law of the State, and in carrying that law into effect, “ trading, bartering or selling, or buying goods, wares and merchandise,” must be held to be common labor; and such is, undoubtedly, the proper construction of the statute. -But it is claimed that, when the same words are used in an ordinance of the city of Cincinnati, they should be held to have a different meaning. There may be force in this reasoning, but it seems to me, if adopted,' it will lead us into difficulty.

Here we have a general law of the State, in which it is admitted that the phrase K common labor/’ includes within its meaning, “ trading, bartering or selling, buying,” &c. We then have a city ordinance, in which these identical words are used, and we are called upon to say, that they are-not included in the term “ common labor,” because, in connection with them, these latter words are introduced. It seems to me that it will n°t do; that although, by giving the construction to this ordinance contended for by plaintiff’s counsel,’we may shut up the shops of the Jewish merchants in Cincinnati, on the first day of the week, we shall open the shop-doors of the whole mercantile community, in every other part of the State.

Besides, by giving the ordinance the construction which seems to me to. be the proper one, that ordinance is rendered perfectly unobjectionable, as there can be no pretence that it is contrary to a statute law of .the State.

The judgment of the Court of Common Pleas is affirmed, with costs.  