California and Liberty by John Orr Corliss

Pacific Press Publishing Association · Mountain View, California · May 28, 1912

FromSigns of the Times, Vol. 39, No. 21.

California and Liberty

By John Orr Corliss

II — Court Decisions Regarding California Sunday Law

NOTWITHSTANDING the strong majority by which the Democratic Party took the reins of the California State administration in January, 1883, and the consequent repeal of the Sunday law which had hitherto been the source of so much sect animosity and neighborhood disturbance, the clergy of the State at once set about to secure the re-enactment of the obnoxious statute.

A Weekly Rest Law

In order to avoid the odium of working in behalf of a religious measure, special enactments were secured from time to time, as possible steps toward future statutes more general and comprehensive in nature. The first of these was a law approved February 27, 1893, entitled, “An act to provide a day of rest from labor.” Its provisions are as follows:

Day of Rest

“Section 1. Every person employed in any occupation of labor shall be entitled to one day’s rest therefrom in seven; and it shall be unlawful for any employer of labor to cause his employees, or any of them, to work more than six days in seven; provided, however, that the provisions of this section shall not apply to any case of emergency.”

Meaning of Term

“Sec. 2. For the purposes of this act, the term ‘day’s rest’ shall mean and apply to all cases, whether the employee is engaged by the day, week, month, or year, and whether the work performed is done in the day or nighttime.”

Penalty for Violation

“Sec. 3. Any person violating the provisions of this act shall be deemed guilty of a misdemeanor.”

Time Act Shall Take Effect

“Sec. 4. This act shall take effect and be in force thirty days from and after its passage.”

It will be readily seen that this statute places the guilt of its violation on the employer of the enforced labor, rather than upon the employee. No statute could be framed to meet the needs of overworked laborers better than this one, which has been a part of California’s civil code for nearly a score of years. It certainly provides for one day of rest in each week for every laboring man in the State. If these shall unite, in their choice, on Sunday as that weekly day of rest, well and good; the statute grants this demand. It concedes, in fact, all that any working man can ask for himself, and in granting this it affords the fullest personal liberty that any republic can offer its citizens.

On the other hand, to enact a positive Sunday rest law, which would require everybody, irrespective of his circumstances or desire, to rest on that day, would deprive men of their constitutional right of choice in “pursuit of happiness” so strongly guaranteed by the Federal Fundamental Law. An assemblyman of the thirty-eighth session of the California legislature, who then desired a Sunday law, was asked why the statute above cited was not sufficient to meet the needs of the laboring man, without putting a Sunday law on the statutes. He replied that the statute was of no value because it carried no penalty. But is this true? If so, in justice to the laboring class, it should at once be amended.

Let us, however, look at the statute before rendering a final decision. Upon investigation we find that it provided that “any person violating the provisions of this act shall be deemed guilty of a misdemeanor.” But what is a misdemeanor? Bouvier’s Law Dictionary says that this is —

“A term used to express every offense inferior to felony, punishable by indictment, or by particular prescribed proceedings. In its final acceptance, it is applied to all those crimes and offenses for which the law has not provided a particular name.”

Thus we learn that a misdemeanor, being an infringement of civil rights, is punishable by indictment or by particular prescribed proceedings when no prescribed penalty is provided by the act establishing the misdemeanor. This leaves in the hands of the trial court the right to prescribe the penalty, which may be a fine as high as $500, or six months’ imprisonment, or both. This would seem a penalty heavy enough to meet the most extreme demand.

Fear of Employees

But clerks and others say, “We do not like to complain of our employers, and so lose our jobs.” In that case, every such person can take the other alternative, and work; but there is the law to protect his interests, and if he chooses not to avail himself of its provision, he should not complain, nor ask the State to pass a religious rest law, repugnant to so many citizens, in order to relieve him of the responsibility of demanding his rights under the existing statute.

With all this provision upon the statutes, for the protection of labor’s rights, one is forced to conclude that the demand for a uniform Sunday rest law comes from religious teachers in the church, who ignore the provisions of civil law for the better condition of the working classes, and that their demand is in the interest of their religious doctrines, rather than for the freedom of the laboring man.

Making Labor a Crime

In 1895 a law was enacted making it a misdemeanor to keep open and conduct a barber shop, or to work as a barber, on Sundays and other holidays after the hour of twelve o’clock noon of said days. Under this law, one Leo Jentzsch was indicted, and on a writ of habeas corpus his case was carried to the State Supreme Court. Justice Henshaw, in the course of his judicial reasoning upon the statute, said:

“It is not easy to see where or how this law protects labor from the unjust exactions of capital. A man’s constitutional liberty means more than his personal freedom. It means, with many other rights, his right freely to labor, and to own the fruits of his toil. IT IS A CURIOUS LAW FOR THE PROTECTION OF LABOR WHICH PUNISHES THE LABORER FOR WORKING. Yet that is precisely what this law does. The laboring barber, engaged in a most respectable, useful, and cleanly pursuit, is singled out from the thousands of his fellows in employments, and told that, WILLY-NILLY, he shall not work upon holidays and Sundays after twelve o’clock noon. His wishes, tastes, or necessities are not consulted. IF HE LABORS HE IS A CRIMINAL. Such protection to labor carried a little further would send him from the jail to the poorhouse.

“How comes it that the legislative eye was so keen to discern the needs of the oppressed barber, and yet was blind to his toiling brethren in other vocations? Steam car and streetcar operatives labor through long and weary Sunday hours, so do the mill and factory hands. There is no Sunday period of rest and no protection for the overworked employees of our daily papers. Do these not need rest and protection? The bare suggestion of these considerations shows the injustice and inequality of this law.”

In conclusion the justice quoted the following opinion from Judge Cooley:

“Every one has a right to demand that he be governed by GENERAL rules, and a SPECIAL statute that singles his case out as one to be regulated by A DIFFERENT LAW from that which is applied in all similar cases would not be LEGITIMATE LEGISLATION, but an arbitrary mandate unrecognized by the law.”

The decision was next rendered, in which the full bench concurred: “The prisoner is discharged.”

Several judicial opinions of the same nature have been handed down from the courts of California, but the space of this article permits the use of but one other. Under the Sunday law of 1858, a Jewish clothier of Sacramento, by the name of Newman, was arrested for keeping open his store on Sunday. He was tried, and sentenced to pay a fine of fifty dollars, and twenty dollars additional as costs of prosecution. Failing to pay the fine and costs, he was imprisoned, but petitioned the Supreme Court for a writ of habeas corpus, and was discharged from imprisonment.

In rendering decision, Chief Justice Terry cited two sections of the State Constitution, the first of which declares:

“All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness.”

The fourth section affirms:

“The free exercise and enjoyment of RELIGIOUS PROFESSION AND WORSHIP, WITHOUT DISCRIMINATION or preference, shall FOREVER BE ALLOWED IN THIS STATE.”

After quoting these sections of the Constitution, Justice Terry asked two pertinent questions relative to the law under which Newman was convicted, as follows: 1. “Does the act of the legislature make a discrimination or preference favorable to one religious profession, or is it a mere civil rule of conduct?” 2. “Has the legislature the power to enact a municipal regulation which enforces upon the citizen a compulsory abstinence from his ordinary, lawful, and peaceable avocations for one day of the week?”

Purely Religious

Reasoning upon the question of the law’s constitutionality, the conclusion was drawn that “the truth is, however much it may be disguised, that this one day of rest is a purely religious idea. Derived from the Sabbatical institutions of the ancient Hebrews, it has been adopted into all the creeds of succeed

ing religious sects, throughout the civilized world.”

Usurpation of Power

Speaking directly to the case in hand, Justice Terry pertinently said:

“One of the objects for which the judicial department is established, is the protection of the constitutional rights of the citizen. The question presented in this case is not merely one of expediency or abuse of power. It is a question of USURPATION OF POWER. If the legislature have the authority to appoint a time of compulsory rest, we would have no right to interfere with it, even if they required a cessation from toil for six days in the week, instead of one. If they possess this power, it is without limit, and may extend to the prohibition of all occupations at all times.”

The opinion concludes:

“In our opinion, the act in question is in conflict with the first section of article first of the Constitution, because, without necessity, it infringes upon the liberty of the citizen, by restraining his right to acquire property.

“And that is in conflict with the fourth section of the same article, because it was intended as, and is in effect, a discrimination in favor of one religious profession, and gives it a preference over all others.

“It follows that the prisoner was improperly convicted, and it is ordered that he be discharged from custody.”

In the concurring opinion rendered by Justice Burnett, occurs this decisive expression:

“The act of the legislature under consideration violates this [the fourth] section of the Constitution, because IT ESTABLISHES A COMPULSORY RELIGIOUS OBSERVANCE.”

Again:

“The act violates as much the religious freedom of the Christian as of the Jew. Because the conscientious views of the Christian compel him to keep Sunday as a Sabbath, he has the right to object, when the legislature invades his freedom of religious worship, and assumes the power to compel him to do that which he has the right to omit if he pleases. The principle is the same, whether the act of the legislature COMPELS us to do that which we wish to do or not to do.”

True, Justice Field, the remaining member of the supreme bench at that time, dissented from these opinions. But inasmuch as he had for a long time held a bitter personal pique against Justice Terry, it would be easy to suspect his motive in doing so; for it does not require a judicial mind to discover that the reasoning of the two concurring opinions was absolutely sound in logic and good sense. Justice Field justified Sunday legislation on the ground that “Christianity is the prevailing faith of our people,” and the “basis of our civilization,” thus making religion the basis of all Sunday legislation. He did not contend that the Constitution upheld such legislation, but that the majority should rule in such matters.

But why should the religious views of the majority in any nation be enforced upon a minority who do not believe the same? Why should not the minority be entitled to protection in their religious rights as well as in their civil rights? To refuse such protection is nothing short of intolerance, which one can hardly believe that the liberty-loving people of California are yet ready to endorse.

J. O. CORLISS.