|
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:
- Pastimes and Offences.—Sporting, rioting,
quarrelling, hunting, fishing, and shooting.
- 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.) |
