McEjnstry, J., dissenting: I dissent. Sections 300 and 301 of the Penal Code are:
“Sec. 300. Every person who keeps open on Sunday any store, workshop, bar, saloon, banking house, or other place of business, for the purpose of transacting business therein, is punishable by fine not less than five nor more than fifty dollars.
“Sec. 301. The provisions of the preceding section do not apply to persons, who, on Sunday, keep open hotels, boarding houses, barber shops, baths, markets, restaurants, taverns, livery stables, or retail drug stores, for the legitimate business of each, or such manufacturing establishments as are usually kept in continued operation; provided, that the provisions of the preceding section shall apply to persons keeping open barber shops, bath houses, and hair dressing saloons after 12 M., on Sunday.”
The important question presented by the petition herein is —Do the sections quoted conflict with the fourth section of Article i of the Constitution of the State ? The section of the Constitution reads as follows:
“The free exercise of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this State; and no person shall be rendered incompetent to be a witness or juror on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.”
It has sometimes been suggested that laws like that we are considering may be defended on the same ground as are laws against blasphemy and other profanity. But until it can be shown that any man in his sound mind pretends to believe that indulgence in wanton and public blasphemy, or other profanity, is necessary to the “free exercise and enjoyment” of his religious profession or worship, he can not be heard to [202]claim the protection of the provision of the Constitution. The difference between the two classes of laws is rendered palpable by their comparison.” “Sunday laws,” have never been upheld in California on any other ground than that they simply provided for a period of rest.
In Ex parte Andrews (18 Cal. 678, 685), the conclusion to which the Court arrived was distinctly based upon the reasoning of the dissenting opinion of Mr. Justice Field, in Ex parte Newman (9 Cal. 502, 518). In the dissenting opinion referred to the Act of 1858 “for the better observance of the Sabbath” is declared not to be violative of the provision of the Constitution which allowed the free exercise of religion, because it simply required a periodical cessation from labor “tending to the preservation of health and the promotion of good morals.” The cases cited by Mr. Justice Field all turn upon the same point. This will more clearly appear from an examination of the leading cases—Sped v. Commonwealth, 8 Barr. 312, and City Council v. Benjamin, 2 Strob. 529. In the first of these cases it was said that the statute of Pennsylvania then under consideration, only selected and set apart the first day of the week, or Sunday, as a day of legalized rest, and enforced the observance thereof by legal sanctions, and was, essentially, but a civil regulation. And in the South Carolina case, that religion had “nothing to do with” a prohibition of business on Sunday; that, in a political and social point of view, the prohibitory Act merely made the first day of the week a day of rest.
In view of the provision of the former and present Constitution prohibiting legislation which may discriminate against any form of religious profession or worship—the liberty of conscience intended to be secured by which is the more clearly defined by the clause that it shall not be construed to prohibit the prevention of licentious practices, or such as are inconsistent with the peace and safety of the State—I have never believed that a law which punishes as a crime the doing of any business, otherwise lawful, on Sunday, could be defended upon the ground on which such a law was attempted to be upheld in Ex parte Andrews.
Many years ago, in another place, I had occasion to say: “I confess I approach the question presented in this case with [203]a feeling of repugnance to such legislation as that upon which this prosecution is founded.” (The Act of 1858, “to prohibit barbarous and noisy amusements on the Christian Sabbath.”) “Indeed, if the constitutionality of ‘Sunday laws’ were a new question in this State, I should hesitate to sustain them. Strictly speaking, no form of religion is tolerated in California. By the terms of the Constitution (of 1849), ‘the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.’ It is the absolute right, therefore, of every citizen to worship God according to the dictates of his own conscience, and to keep holy such days as his own religion may sanctify; and it would be difficult to convince an ‘orthodox’ Jew (for example), who has abstained from secular employment on Saturday, that a law which compels him to refrain from like employment on Sunday gives no.preference to other forms of religion. Certainly all argument based upon the supposed physical benefits derived from a stated day of rest would have little application and furnish little ground for enforcing a ‘Sunday law’ upon one who has taken his rest on the preceding day.” (People v. Fritch, in the County Court of San Francisco.)
It is gratifying to know, that, in his exhaustive work upon Constitutional Limitations, subsequently published, Mr. Justice Cooley did not hesitate to avow his conviction that a law which prohibits ordinary employments upon the Sunday cannot be sustained as a sanitary regulation,based upon the demonstration of experience that one day’s rest in seven is needful for the recuperation of the exhausted energies of body and mind. The learned author says: “The Jew” (and we may add the Seventh Day Baptist, of whom we take notice there is a considerable number in California), “who is forced to observe the first day of the week, when his conscience requires of him the observance of the seventh also, may plausibly urge that the law discriminates against his religion, and, by forcing him to keep a second Sabbath in each week, unjustly though by indirection, punishes him for his belief. * * * It appears to us that, if the benefit to the individual is alone to be considered, the argument against the law which he may [204]make, who has already observed the seventh day of the week, is unanswerable.” (Cons. Lim. 476-7, First Ed.)
Nor can the doctrine stare decisis be invoked to prevent us from inquiring into the constitutionality of the sections of the Penal Code. If, in Ex parte Andrews the act of 1858 was decided to be valid, in Ex parte Newman (9 Cal. 502), the same act was declared to be in conflict with the fourth section of the first Article of the former Constitution. In holding the sections of the Penal Code to be obnoxious to constitutional objection, we but return to the rule which, for more than three years, was the established rule in California. But if the case Ex parte Andrews stood alone—“ Mo such rule ever existed as that a Court should be absolutely bound by a previous decision. And it would be especially dangerous to apply this inexorable standard to questions decisive of the constitutional rights of the citizen.” (Houghton v. Austin, 47 Cal. 666.) It was said in Willis v. Owen, 43 Texas, 48: “When the decisions relate not to matters of title or contract, but abstractly to the structure of the Government, the limits of executive and legislative power etc. the doctrine of stare decisis does not apply.” The last statement is certainly correct, unless it can be shown that property interests have grown up under a certain construction of the organic law of which there is no pretense with reference to the provision of the Constitution whose interpretation is to be considered in the present case.
But a decision holding the sections of the Penal Code to be repugnant to the constitutional inhibition of legislation of a partial character with respect to religious profession and practice, does not necessarily require a reversal of Ex parte Andrews. The Act of 1858, there considered, was in the usual form. It prohibited business, except of certain sorts, on “ the Christian Sabbath or Sunday,” and was entitled: “An act for the better observance of the Sabbath.” I cannot admit to be satisfactory the reasoning by which the result was reached, but the result was reached, that the words “ Christian Sabbath ” meant merely a period of time—the first day of the week.
In the view of the Court the words were entirely without ambiguity, so that there was no necessity to refer, and would [205]have been no propriety in referring to the title of the Act. Thus construing the body of the Act, it was said that its only scope and purpose was to establish, as a civil regulation, a day of rest from secular pursuits. In the dissenting opinion, in Ex parte Newman, much stress is placed upon the circumstance that there is nothing in the enacting clause of the Act of 1858, to indicate that it was in the mind of the legislators to enforce any religious observance. In that opinion the words are italicised—“ It does not even allude to the subject of religious profession or worship in any of its provisions." If the Act of 1858 had contained a distinct statement that it was intended thereby to punish any person who should be guilty of the irreligious act of performing labor upon the "Christian Sabbath,” the learned author of the dissenting opinion might have arrived at a different conclusion touching its validity. Construed according to established principles, such a declaration in effect is contained in Sections 300 and 301 of the Penal Code.
The Penal Code is divided into parts, titles, chapters and sections; and at the head of each chapter is a note indicating generally the subjects to which the chapter is devoted. Sections 300 and 301 are found in chapter seven of title nine, and the head note to this chapter is in these words: “ Crimes against religion and conscience, and other offenses against good morals.”
“While,” as was said of the Practice Act in Barnes v. Jones, “ while the rule is well settled that the title of an act will not control the language in the body of the statute, but may be referred to as tending to explain the intention (only) when the language is doubtful, we are of opinion that these head notes are entitled to more consideration than the title to the entire Act.” (51 Cal. 303.)
“ In this form of enactment, such statements ” (at the head of the respective chapters) “ are a part of the law itself, and not in any wise extrinsic to the enacting clause. To reject them, or to refuse to give effect to them, according to their fair and ordinary import and understanding, would be to make the law, not to administer it.” (The People v. Molineux, 53 Barb. Sup. Ct. B. 15; see, also, Williams v. People, 45 Id. 201.) In People v. Molineux, on appeal, (401ST. T. 119), it was [206]said: “ The whole of the first part of the Revised Statutes, including the definitions given in heads of the chapters and the title to the subject-matter following, was a single statute. Those headings are not titles of the acts, but are parts of the statute, limiting and defining their effect.”
Thus considering the note in the head of the chapter as a portion of the chapter, it is to be pointed and applied to the several sections of the chapter appropriately. The sections in the chapter which prohibit certain acts upon the “ Christian Sabbath,” or Sunday, are intended to declare that these acts are not only violations of a sanitary regulation, but a desecration of a religious holiday, and, consequently, “ crimes against religion.” Other sections evidently are intended to be covered by the phrase “ other offenses against morality.” In the sections of the Penal Code it is declared, therefore, that any person who shall neglect or refuse to observe, to the extent of a cessation from ordinary employments at least, a religious festival, recognized and celebrated by Christians alone, and not by all sects of Christians, is guilty of a crime against religion, to be punished as provided. As to the Jew, it is not a crime against his religion to labor on the first day of the week, and the plain purpose of the provision of the Constitution is to prohibit a legislative confusion which shall substitute the religious profession or worship of a class or sect for religion. Under penalty citizens are compelled by the sections of the Code, so to conduct themselves as is required not by their own, but by the religion of others.
The statute (reading the note which precedes the chapter in connection with the several sections comprised within it) declares it to be a crime against religion for any person not to refrain from certain secular employments upon Sunday; a word for which the words “Christian Sabbath” are used as an equivalent in the same chapter. To enforce such a law is in effect to punish for a disregard of a religious institution or ordinance; to enforce it against one whose religion attributes no sanctity to the institution or ordinance, but requires of him to keep sacred, as of binding obligation, another day in the week, .is to discriminate against the free exercise of his religious profession and worship.
[207]Eoss, J.: I dissent for the reason last given in the opinion of Mr. Justice McKinstry, that is to say, for the reason that the statute involved in this proceeding, fairly construed, makes the Act in question a crime against religion. It is a mistake to say that the present statute is like that involved in Ex parte Andrews, 18 Cal. 678, and in the other cases cited. The distinction which is an important one, has been clearly pointed out by Mr. Justice McKinstry and need not be repeated by me.
Sharpstein, J.: I dissent. In Ex parte Andrews, 18 Cal. 678, the Court endeavored to avoid the objection that “the Sunday law” then in force was repugnant to that clause of the Constitution which declares that “The free exercise and enjoyment of religious worship, without discrimination or preference, shall forever be guaranteed in this State,” by holding that it was within the power of the Legislature to make it a misdemeanor for any one to keep his place of business open for the transaction of business on any day of the week, and that “the power of selection being in the Legislature, there is no valid reason why Sunday should not be designated as well as any other day.”
I cannot assent to the proposition that this law can be regarded as it would be if the day designated in it had not been the Sabbath of any religious sect, nor do I think that the Legislature would have the constitutional power to make it a misdemeanor for a person to keep his place of business open on any day other than the Sabbath of some religious sect, for the transaction of business which it would be neither illegal, immoral nor improper to transact on any other day than the one so designated.
First: Can the Legislature, in view of the provision of the Constitution above quoted, ignore the existence of religious sects in this State to the extent that the Court-in Ex parte Andrews holds that it may ? If so, what force and effect is to be given to the words “ without discrimination or preference ?” There are in this State religious sects whose tenets [208]require them to suspend the transaction of business on the first day of each week, and other sects whose tenets require them to do so on the seventh day of each week. And it is held in Ex parte A ndrews that the Legislature has the power to require a suspension of business on one day of each week, which it may designate for that purpose, because the physical and moral well-being of society is thereby promoted.
Mow it is apparent that by selecting the first day of the week as a day of rest, the Legislature has discriminated in favor of those whose religious tenets require the observance of that day, and against those whose religious tenets require the observance of the seventh day. A member of the latter sect is required to observe two days, while a member of the former is only required to observe one day of each week. If the seventh day had been selected, the discrimination against those whose religion constrains them to observe the first day would have been equally plain. And if any other than the first or seventh had been selected, there would have been a discrimination against all sects whose religion exacts the observance of either the first or seventh day of each week. The law does not require that any one should live up to the requirements of his religion in this respect. But the Constitution does guarantee to every one the free exercise and enjoyment of religious worship without discrimination or preference, and it is plainly the duty of the Legislature to so frame its enactments that they shall not bear more heavily upon one sect than upon another, or upon those who profess religion than upon those who do not. As I read the constitutional guarantee, it not only requires that the Legislature shall recognize the existence of religious sects, but that it shall protect them in the exercise and enjoyment of religious worship without discrimination or preference.
Mow, if it be necessary that people should rest one- day in seven, and unnecessary that they should rest two days in seven, and wholly immaterial on what day they rest, it was the duty of the Legislature to take notice of the fact that many people are constrained by their religion to rest on the seventh day of each week, and to have excepted them from the operation of “the Sunday law.” I do not think that there would have been any more impropriety in excepting [209]them from its operation than there was in excepting livery stable keepers from its operation. It was only by excepting from the operation of the law those whose religious convictions constrained them to observe some other day than the one designated in the Act, that it could be made to bear equally upon all classes of people. And a law which does not bear equally upon all classes of people is not without discrimination or preference. It is impossible for a person whose religion constrains him to observe the seventh day of each week, to live up to the requirements of his religion and at the same time obey this law, without sacrificing, one day more each week than the person whose religion constrains him to observe the first day of the week, or the one who is not constrained by religion to observe any day of the week. It does seem to me that this constitutes discrimination or preference, and as I understand the Constitution the Legislature has no power to pass such a law. It is no answer to this objection to say that the law ignores religion altogether, because the Legislature has no right under the Constitution to ignore religion when passing laws which must seriously affect those who profess it in some one of its various forms. If it is only necessary that the people of this State should rest one day in seven, and wholly immaterial on what day of the week they rest, those whose religion requires them to rest on a day other than that designated in the Sunday law, should have been excepted from its operation in order to avoid discrimination or preference which the Constitution forbids.
Second: If this law is not inconsistent with the provision of the Constitution to which I have referred, is it consistent with all other provisions of that instrument ?
In this State, at least, the validity of this law has been sustained on the sole ground that it is within the power of the Legislature to make it a misdemeanor for a person to keep his place of business open for the transaction of business on any day which it may designate, and that the fact of Sunday having been designated is an immaterial circumstance, in no way affecting the question of the constitutionality of the. law.
[210]The principle is doubtless well settled, “ that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community.” (Commonwealth v. Alger, 7 Gush. 53, per Shaw, G. J.) And it is unquestionably within the power of the Legislature to impose such restraints upon the free use of property by its owner as may be necessary to prevent such use of it from being injurious to the rights of others or of-the community. Among the rights which the Constitution declares to be inalienable are those of. “ securing, possessing, and protecting property,” and it further declares that no person shall be deprived of “property without due process of law.” A person who acquires property, acquires the right to use it, subject to “the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community.” “ The term (property), although frequently applied to the thing itself, in strictness means only the rights of the owner in relation to it.” (Per Selden, J., in Wynehamer v. The People, 131ST. Y. 378.) And one of the rights of an owner of property in relation to it is the right to use it. And any Act of the Legislature which interferes with the right of a person to use his own property within the limit above defined, deprives such person of one of his constitutional rights. And unless it can be .shown that a person who keeps his place of business open for the transaction of business on every day of the week, thereby transgresses that limit, any law making it a misdemeanor for him to so keep it open on every day, would clearly be unconstitutional. I am assuming now that this law must be regarded precisely as it would be if the day designated had not been the Sabbath of any religious sect. If, then, it can not be seen or shown that a person by keeping his place of business open for the transaction of business on every day of the week, would cause any more injury to the rights of any other person, or those of the community, than he would by so keeping it open on six days every week, it seems to me that the Legislature could not constitutionally make it a mis[211]demeanor for a person to keep his place of business so open on any day of the week.
“If the particular work or trade be not in its nature a nuisance, as prejudicial to the health or comfort of the public, it does not become so by being performed or carried on on one day, more than another.” Per Ruffin, C. J., in State v. Williams, 4 Iredell, 400). In the same opinion the following passage occurs: “The truth is, that it. (work on Sunday) offends us not so much because it disturbs us in practicing for ourselves the religious duties, or enjoying the salutary repose or recreation, of that day as that, it is in itself a breach of God’s law, and in violation of the party’s own religious duty.” He admits, however, that, “There are many offenses against God, which are not offenses against the State.” And he says: “Although it may be true, that the Christian religion is a part of the common law, it is not so in the sense that an act contrary to the precepts of our Savior or Christian morals; is, necessarily, indictable. Those which were merely against God and religion were left to the correction of conscience, or the religious authorities of the State. Such, necessarily, must be the character of acts which are criminal only in respect of the day on which they are done, being a day set apart by the author of our religion for his peculiar service.”
It is only in respect of the day on which they are done that the acts enumerated in the law under consideration are criminal. They may lawfully, and some of them must almost necessarily, be done on nearly all other days. Under our Constitution the Legislature has no power to enforce the observance of any day as a religious duty. The power of the Legislature to interfere with the use of property by its owner in proper cases can not be questioned. But when it does so interfere, and its power to do so is challenged by the owner, the duty of deciding whether such interference was reasonable or not devolves upon the Courts. If the Court is unable to discover any reasonable ground for such interference, it must decide that it was unconstitutional. And the only ground upon which a person can be deprived of the ordinary and lawful use of his property one day in seven is that such deprivation is necessary in order to protect other persons, or the community, in the enjoyment of their equal rights. That, [212]however, is not the ground upon which it is claimed that the constitutionality of this law can be supported. But it is claimed that it can be supported on the ground “that one day’s rest in seven is needful to recuperate the exhausted energies of body and mind.”
In' a government modeled after the Republic of Plato, that would doubtless constitute a sufficient ground for legislative interference. But if the government has the power to do that, why should it not assume all the functions which Plato assigned to it ? In the language of Macaulay, “ why should it not take away the child from the mother, select the nurse, regulate the school, overlook the play-ground, fix the hours of labor and recreation, prescribe what ballads shall he sung, what tunes shall be played, what books shall be read, what physic shall be swallowed—-why should it not choose our wives, limit our expenses, and stint us to a certain number of dishes, of glasses of wine, and of cups of tea ? ” Why should it not fix the hours of retiring at night and rising in the morning ? Experience has demonstrated that a certain number of hours sleep in every twenty-four are needful to recuperate the exhausted energies of body and mind.
In deference to public opinion, the Legislature of this State enacted what is known as the “ Eight-hour law.” The ground upon which that law was demanded was that experience had demonstrated that whoever labored eight hours in twenty-four required the other sixteen for the recuperation of the exhausted energies of his body and mind. But the Legislature did not attempt by that law to prevent any one from laboring more than eight hours a day. It simply declared that “ eight hours of labor constitute a day’s work, unless it is otherwise expressly stipulated by the parties to a contract.” Now, I do not think that it would be seriously claimed that the Legislature would have the power to make it a misdemeanor for any person to keep his place of business open for the transaction of business more than eight hours a day, because experience had demonstrated that the other sixteen were needful for the recuperation of the exhausted energies of his body and mind. And yet it cannot be denied that such a law would be within the principle invoked by those [213]who maintain that the Sunday Law in this State is constitutional.
When the construction put upon the “ eight-hour ” clause of the San Francisco street law was before the Supreme Court, Sanderson, J., said: “It seems to me that to provide that a man shall not labor more than eight hours in each day, notwithstanding his own necessities, or the necessities of those who are dependent upon him may render it absolutely necessary for him to do so, would be to go much further than any legislative body has yet gone in regulating the exercise of the natural right of every man to labor for the support of himself and family, or for the purpose of acquiring, possessing, and protecting property.” (Drew v. Smith, 38 Cal. 325.) But it would be going no further than the Legislature has gone in making it a misdemeanor for a person to keep open his place of business more than six days in each week for the transaction of business. And it is quite evident that Mr. Justice Sanderson saw that he was laying down a principle to which “Sunday laws” were no less repugnant than “Eight-hour laws..’ For he immediately added: “That man shall not work on Sunday, seems to be considered by common consent to be a necessary and salutary rule, on the score of health, and, therefore, the Courts have held that Sunday laws are not an unreasonable interference with his natural right to labor and transact business; but who is prepared to say that a man shall not only not work on Sunday, but he shall not work more than eight hours in each of the other days of the week, or, in other words, that out of each one hundred and forty-four hours he shall not be allowed to work more than forty-eight hours, under the pretense that to do so would injuriously affect and impair his general capacity for labor ? ”
If it is simply a question of hygiene and the Legislature has the power to prescribe a regimen for the people of this State, every one should be prepared to say, what he evidently thought that no one was prepared to say. The circumstance that it seems to be considered by “ common consent ” a necessary and salutary rule “ that man shall not work on Sunday ” is not entitled to much weight in determining his constitutional right to do so. Something more than “ common consent ” is required before a man can be deprived of any of his, [214]Constitutional rights. I do not doubt the constitutionality of the law which constitutes eight hours of labor a day’s work, unless otherwise stipulated by the parties; nor do I doubt that it is within the power of the Legislature to constitute six days of labor a week’s work, unless otherwise stipulated by the parties. But I think that it is beyond the power of the Legislature to make it a misdemeanor for a man to work more than eight hours a day, or more than six days a week, unless his doing so would injuriously affect the rights of others.
All the courts and law writers concur in basing the power of the Legislature to impose any restrictions or regulations upon the right of an owner to use his own property as he sees fit, upon the maxim, sic utere tuo ut ctlienum non laedas, which does not require that a man shall use his own property so as not to injure it or himself. And it has probably never been held, except in cases involving the validity of Sunday laws, that the Legislature could restrict or regulate the use of private property for any other purpose than that of preventing such use from becoming “ injurious to the equal enjoyment of others having an equal right to the enjoyment of their property,” or “ injurious to the rights of the community.”
Third: Is the constitutionality of this law an open question in this State ? In Ex parte Newman, 9 Cal. 502, a similar Act of the Legislature was held to be unconstitutional. Afterwards another Act of the same character was passed, which in Ex parte Andrews, supra, was held to be constitutional. In Ex parte Bird, 19 Cal. 130, the Court, on the authority of Ex parte Andrews, held the same Act to be constitutional. From that time to the present, embracing a period of more than twenty years, no effort to enforce the observance of the law appears to have been made, and no one who has lived in the State during that period will claim that the law has been even generally complied with. Many have devoted the day to religious exercises, some to recreation, and others to labor, and all apparently ignorant of the existence of this law. It does not seem to me that under such circumstances it can fairly be claimed that the question of the constitutionality of this law in this State is no longer an open one. The decisions upon that question in this State are not [215]uniform, and those which affirm the constitutionality of the law are based mainly upon the ground that such laws have quite uniformly been held to be constitutional in other States. But that, in my opinion, is not of itself a sufficient reason for construing any provision of our own Constitution-contrary to its obvious meaning.