SUNDAY ENFORCEMENT NEWS AND COMMENT.
By John D. Bradley
A New York Sunday-Law Decision.
A DECISION affirming the constitutionality of the New York statute "compelling the closing of grocery stores on Sunday" was rendered by Justice Davy at Rochester late in October. The question came up on the application for a writ of habeas corpus for the release of two Rochester grocers "who had been arrested for selling on Sunday," but upon just what grounds it was raised the report did not disclose. After setting forth that "the statute of the state regulating the observance of Sunday prohibits all servile labor or work on that day, excepting works of necessity or charity, unless done by those who keep Saturday as a holy day, and whose labor does not disturb other persons in the observance of the first day of the week as holy time," and that "it also prohibits all manner of public selling or offering for sale of any property on Sunday, except that articles of food may be sold and supplied at any time before 10 o'clock in the morning, and except also that meals may be sold to be eaten on the premises where sold or served elsewhere by caterers, and prepared tobacco, milk, ice, and soda water in places other than where spirituous or malt liquors or wines are kept or offered for sale, and fruit, flowers, confectionery, newspapers, drugs, medicines and surgical appliances may be sold in a quiet and orderly manner at any time of the day," the judge declared that this section "shall not be construed to allow or permit the public sale or exposing for sale or delivery of uncooked meats or flesh foods, fresh or salt, at any time of the day." He thus decided against the contention that the law, or that portion of it especially prohibiting the sale, or exposing for sale, of meats, was unconstitutional. He said:11I am of the opinion that this statute violates no provision of either the Federal or State constitution. The Christian Sabbath is one of the civil institutions of the state, and the legislature, for the purpose of promoting the morals and good order of society, has power under the constitution to regulate its observance and prevent its desecration, by any appropriate legislation. In this State the Sabbath exists as a day of rest by statute and also by the common law, and the legislature has passed acts regulating its observance. Sunday laws exist in nearly every state in the Union. The statutes of the different states differ somewhat in details and strictness, but in nearly all the states common labor and traffic are prohibited. Public amusements are restricted or prohibited, and the constitutionality of these laws has been sustained by highest state courts. In People vs. Moses (140 N. Y., 125) Judge Earl said: "The Christian Sabbath is one of the civil institutions of the state, and that the legislature, for the purpose of promoting the moral and physical well-being of the people, and the peace, quiet, and good order of society, has authority to regulate its observance and prevent its desecration by any appropriate legislation, is unquestionable." It may be questioned whether Justice Davy rendered any service to the section of the Sunday statute upon the constitutionality of which he was called to decide. The profiting, of course, as much as possible by the religious sentiment with regard to Sunday, those who secured the enactment of this section a few years ago were not moved by religious sentiment and motives, nor did they have in view primarily the prevention of the "desecration" of the day, and in upholding this measure it would have been the policy of wisdom to have taken advantage of this and to have argued that it did not involve religion and possessed no religious character. But Justice Davy makes no discrimination between it and the Sunday statute as a whole, and places it upon the same religious basis. His justification of the Sunday statute is thoroughly in accord with eminent precedents in the supreme court of the state, but that an American judge, especially at this late day, can deliver himself thus is really astonishing. There was a time once when the "Christian" church was a civil institution of the state, when church membership was a civil duty in the state, and when many religious things were part and parcel of the civil institution of society; but the time for the propriety for such things, and for their legality in this country, has long since passed. Instead of it being unquestionable that an American legislature, and especially the legislature of New York, "has authority to regulate" the observance and to prevent the "desecration" of "the Christian Sabbath," it is decidedly unquestionable that it does not have that authority; any more than it has the authority to regulate the observance and to prevent the desecration of "Good Friday" or "Ash Wednesday," or any observance or institution of religion. Instead of establishing its constitutionality, the fact that a measure is grounded upon the proposition that "the Christian Sabbath is one of the civil institutions of the state" is the strongest possible demonstration that it is utterly and flagrantly unconstitutional. It is utterly unconstitutional in New York, and in other states, for "the Christian Sabbath," or any other institution and observance of religion, to be "one of the civil institutions of the state." That an American judge can fail to recognize and declare this palpable fact illustrates how blind and obstinate is established custom and tradition. The compulsory observance in any degree of the religious Sunday is a thing so manifestly and decidedly at variance with the principles upon which this government was founded, that the thoughtful person can but wonder that such a thing is allowed to continue for a single day; and the increase of such occurrences, as those noted and commented upon herewith, indicate a rapid decline in healthy, liberty-loving sentiment among the people. That such things can occur in the United States, which has stood forth as the chief exponent of the great principles of the separation of church and state, and the complete freedom of the individual in all matters of religion, must cause astonishment even in the nations of the Old World that had begun to look to America as an example.