Home page The Occident and American Jewish Advocate Jews in the Civil War Jews in the Wild West History of Palestine The Occident Virtual Library Shopping Mall of Zion AHAVA Hero Products 250x250

בס"ד

Sunday Laws in Ohio

Jacob Rice ads. City of Cincinnati, In Certiorari, to Common Pleas

The Case

Jacob Rice, the defendant in Certiorari, was fined by the Mayor of Cincinnati, for trading on Sunday.

The ordinance under which this fine was imposed, is contained in the 2d volume of the City Ordinances, page 58, and is in these words:

“Any person of the age of fifteen years and upwards, who shall be found on the first day of the week commonly called Sunday, sporting, rioting, quarrelling, hunting, fishing, shooting, trading, bartering, or selling, or buying any goods, wares, or merchandise, or at any common labour, (works of necessity and charity excepted,) shall be fined in any sum not exceeding $20.”

And the second section contains a provision, that

“Nothing in the first (the foregoing) section of this ordinance, in relation to common labour, shall be construed to extend to those who conscientiously do observe the seventh day of the week as a Sabbath.

The record of the Mayor’s proceedings sets forth that the defendant offered to prove, and it was admitted by the plaintiff, that he conscientiously doth observe the seventh day of the week as a Sabbath.

Upon the hearing, on this state of law and fact, the Court of Common  Pleas reversed the judgment of the Mayor, and certiorari is now obtained from this Court for the purpose of reversing the judgment of the Common Pleas.

It would be enough to call the attention of the Court to the fact, that the transcript of proceedings before the Mayor does not set forth, that defendant is a person of fifteen years and upwards, nor does it negative the exception, in regard to works of necessity and mercy.

But we do not wish this case to go off upon any technical point. The defendant is one of a class of citizens who are somewhat numerous in this community, and who are peculiar in their faith and forms, and naturally sensitive in regard to whatever infringes upon them. This case is one only out of some forty, which rest upon the same principle;—and that principle is regarded by them as a question of religious freedom; as indeed it is. In that light mainly we shall regard it.

The Argument

It is argued for the City, that the exemption only extends to common labourers, and not to common labour,—and that defendant being a tradesman, is not exempted, although a conscientious Sabbatarian, &c.

We set out with the proposition, that the Court should endeavour 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.—Dodge v. Gridley, 10 Ohio Rep. 176; Ib. 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:

  1. Pastimes and Offences.—Sporting, rioting, quarrelling, hunting, fishing, and shooting.
     
  2. Lawful Avocations.—Trading, bartering, selling, buying, &c., or any common labour.

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 labour &c.

That the words “trading, bartering,” &c., are but so many specifications of kinds of common labour, and the words “or at any common labour” 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 and the State Legislature.

On the other hand, the construction for which the counsels 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—

1st. Pastimes and Offences, and lawful avocations—thus, sporting, rioting, quarrelling, hunting, fishing, shooting, trading, bartering, buying, or selling, &c.

2d. Common Labour. And that the latter alone 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 et al., 1 Cond. Sup. Ct. 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 or 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 labour”—-and the reading we insist upon 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 labour,” 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 enumeration here spoken of is mere surplusage;—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 labour,” let it, in the language of Lord Bacon, “be restrained unto the fitness of the matter and the person.” The proposition of plaintiff’s counsel, is, that “common labour” is that in which we may suppose the vast majority of mankind to be habitually engaged, as distinguished from mechanical or other labour, requiring the exercise of intellect or skill;” and that such “common labour” is protected under the proviso. According to this argument, a dozen wood-sawyers, 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? “Common” labour 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 merchandizing, 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 labour;” and 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.

It is the character or kind of labour, therefore, that is protected, and not the conscientious scruples of him that performs it. The law enacting and the law administering powers may not restrain the rights of conscience,—but either or both may divide men of the same faith into classes, according to their avocations, and may define what species of labour may be followed on a given day, consistent with the rights of conscience, and what may be proscribed. As between these classes of men, so made up, the law is to give the benefit of his conscientious view to one, and pay no kind of attention to the equally sincere faith of the other. The one is regarded with toleration;—perhaps favour; whilst the other is put down in the same category with rioters and brawlers, and punished accordingly. And this, too, altogether without reason as to the matter of employment, which is indeed no business of the Legislator; since if a man has a right to go about his lawful business or avocation on a particular day, he has it absolutely; and whether it be labouring or trading, the right is the same. It could never be allowed as a function of the lawgiver, or the province of the courts, so to discriminate among pursuits, and punish men, not on account of their offences, but their avocations.

The proposition we submit is, that the phrase “common labour,” is to be construed in reference to the man himself; and that the “common labour” 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 labour in their respective callings. It is all labour, and we are all labourers. Whether it be physical labour alone, or of the  physical and intellectual powers combined, it is still labour;—still the result of the primeval sin and curse, “In the sweat of thy brow shalt thou eat thy bread.” And it is all “common labour,” because it is labour common to our respective pursuits in life. And this we contend is the correct construction of the phrase “common labour,” as well in the Ordinance as in the Statute.

It is true, plaintiff’s counsel, by a note to page 4 of his argument, contends that this phrase in the Statute, by a rule of repugnance, cannot mean any man’s ordinary occupation. Then by the statute, bartering, selling, etc., are not made punishable; for unless included in the phrase “common labour,” they are not prohibited at all;—and yet, reverse the position of the City Solicitor, and he would contend with equal energy, and far more legal reason, that a merchant who should attempt to pursue his ordinary avocation on the Sabbath, without conscientiously observing the seventh day, ought to, and should be he held to punishment under the Statute.

The argument, which is based upon the relative provisions alike of the 1st and 2nd 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 the 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.

(To be continued.)