April Term, 1858.

SUPREME COURT OF CALIFORNIA.

APRIL TERM, 1858.

EX PARTE NEWMAN.1

SUNDAY LAW UNCONSTITUTIONAL.- - Per TERRY, Chief Justice.The act of April, 1858, "for the better observance of the Sabbath,” is in conflict with the first and fourth sections of article first of the Constitution of the State, and is therefore void.

CONSTITUTIONAL LAW.-RELIGIOUS TOLERATION.- The Constitution, when it forbids discrimination or preference in religion, does not mean merely to guarantee toleration, but religious liberty in its largest sense, and a perfect equality without distinction between religious sects. The enforced observance of a day held sacred by one of these sects, is a discrimination in favor of that sect, and a violation of the religious freedom of the others.

IDEM. POWER OF THE LEGISLATURE.— Considered as a municipal regulation, the Legislature has no right to forbid or enjoin the lawful pursuit of a lawful occupation on one day of the week, any more than it can forbid it altogether.

IDEM. — EXTENT of Power of GOVERNMENT.— The governmental power only extends to restraining each one in the freedom of his conduct so as to secure perfect protection to all others from every species of danger to person, health, and property; that each individual shall be required so to use his own as not to inflict injury upon his neighbor; and these seem to be all the immunities which can be justly claimed by one portion of society from another, under a government of constitutional limitation.

IDEM. ACT UNCONSTITUTIONAL.- -The act in question is in intention and effect a discrimination in favor of one religious profession over all others, and as such is in violation of the Constitution.

IDEM. RELIGIOUS EQUALITY ENTITLED TO PROTECTION.- Per BURNETT, Justice.- Our Constitutional theory regards all religions, as such, as equally entitled to protection, and equally unentitled to preference. When there is no ground or necessity upon which a principle can rest but a religious one, then the Constitution steps in and says that it shall not be enforced by authority of law.

19 California, 502. Field, Justice, dissented from the decision of the court, and, subsequently, when he became Chief Justice, in Ex parte Andrews, 18 California, 685, this decision was disapproved, and the dissenting opinion of Field, Justice, approved.

SUNDAY LAW UNCONSTITUTIONAL.

-The Sunday law violates this provision of the Constitution, because it establishes a compulsory religious observance. It violates as much the religious freedom of the Christian as of the Jew. The principle is the same, whether the act compels us to do what we wish to do or what we wish not to do.

IDEM.- POWER OF LEGISLATURE. If the Legislature has the power to establish a day of compulsory rest, it has the right to select the particular day.

IDEM. PROTECTION OF CONSTITUTION.- The protection of the Constitution extends to every individual or to none. It is the individual that is intended to be protected. Every citizen has the right to vote and worship as he pleases, without having his motives impeached in any tribunal of the State. When the citizen is sought to be compelled by the Legislature to do any affirmative religious act, or to refrain from doing anything because it violates simply a religious principle or observance, the act is unconstitutional.

IDEM.-A QUEStion of LegislaTIVE POWER.— The constitutional question is a naked question of legislative power, and the inquiry as to the reasons which operated on the minds of members in voting for the measure, is wholly immaterial.

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CONSTITUTION CONSTRUED. If section first of article first of the Constitution asserts a principle not susceptible of practical application, then it may admit of a question whether any principle asserted in the declaration of rights can be the subject of judicial enforcement. And if such a position be true, that the rights of property cannot be enforced by the courts against an act of the Legislature, a power is then conceded which renders the provisions of the other sections wholly inoperative.

IDEM. RIGHT TO POSSESS PROPERTY.-The right to possess and protect property is not more clearly protected by the Constitution, than the right to acquire it. The right to acquire is the right to use the proper means to attain the end; and the use of such means cannot be prohibited by the Legislature, except the peace and safety of the State require it.

IDEM. Free agents must be left free, as to themselves. If they cannot be trusted to regulate their own labor, its times, and quantity, it is difficult to trust them to make their own contracts. If the Legislature can prescribe the days of rest for them, it would seem that the same power can prescribe the hours to work, rest, and eat.

HABEAS CORPUS.

Newman, the petitioner, was tried, and convicted before a justice of the peace of the city of Sacramento, for a violation of the act of April tenth, 1858, entitled, "An act to provide for the better observance

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of the Sabbath," and was sentenced to pay a fine of fifty dollars, and the costs of the prosecution [*504] twenty *dollars — or, in the default of the payment of such fine and costs, to be imprisoned thirty-five days. Failing to pay the fine and costs imposed, he was imprisoned. The petitioner is an Israelite, engaged in the business of selling clothing, at Sacramento. The offense of which he was convicted was the sale of goods on Sunday. Upon his imprisonment, he petitioned this court for a writ of habeas corpus, and prayed that he might be discharged from imprisonment, on the ground of the illegality of the same, by reason of the unconstitutionality of the act.

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The writ was issued, and on the return thereof, the petitioner was discharged.

TERRY, Chief Justice. The petitioner was tried and convicted before a justice of the peace for a violation of the act of April, 1858, entitled, “An act for the better observance of the Sabbath," and upon his failure to pay the fine imposed, was imprisoned.

The counsel for petitioner moves his discharge, on the ground that the act under which these proceedings were had is in conflict with the first and fourth sections of the first article of the State Constitution, and therefore void.

The first section declares, "All men are by nature and independ- 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."

Equality of all religions.

The fourth section declares, "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State."

arising.

The questions which arise in the consideration of Questions the case, are :

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 in the week?

The law intended to

There is no expression in the act under consideration which can lead to the conclusion that it was favor religion. intended as a civil rule, as contradistinguished from a law for the benefit of religion. It is entitled, “An act for the better observance of the Sabbath," and the prohibitions in the body of the act are confined to the "Christian Sabbath."

Decisions of other States.

It is, however, contended, on the authority of some of the decisions of other States, that, notwithstanding the pointed language *of the act, it may be [*505] construed into a civil rule of action, and that the result would be the same, even if the language were essentially different.

The fault of this argument is that it is opposed to the universally admitted rule which requires a law to be construed according to the intention of the lawmaker, and this intention to be gathered from the language of the law, according to its plain and common acceptation.

It is contended that a civil rule requiring the devotion of one seventh of the time to repose, is an absolute necessity, and the want of it has been dilated upon as a great evil to society. But have the Legislatures so considered it? Such an assumption is not warranted by anything contained in the Sunday law. On the contrary, the intention which pervades the whole act is to enforce, as a religious institution, the observance of a day held sacred by the followers of

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one faith, and entirely disregarded by all other denominations within the State. The whole scope of the act is expressive of an intention on the part of the Legislature to require a periodical cessation from ordinary pursuits, not as a civil duty, necessary for the repression of any existing evil, but in furtherance of the interests, and in aid of the devotions, of those who profess the Christian religion.

Several authorities, affirming the validity of similar statutes, have been cited from the reports of other States. While we entertain a profound respect for the courts of our sister States, we do not feel called upon to yield our convictions of right to a blind adherence to precedent; especially when they are, in our opinion, opposed to principle, and the reasoning by which they are endeavored to be supported is by no means satisfactory or convincing. In Bryan v. Berry, 6 California, 398, in reference to the decisions. of other States, we said: "Decided cases are, in some sense, evidence of what the law is. We say in some sense, because it is not so much the decision as the reasoning upon which the decision is based, which makes it authority, and requires it to be respected."

It will be unnecessary to examine all the cases cited by the district attorney. The two leading cases in which the question is more elaborately discussed than in the others, are the cases of Sepect v. the Commmonwealth, 8 Barr, 313, and the City Council v. Benjamin, 2 Strobhart, 508, decided respectively by the Supreme Courts of Pennsylvania and South Carolina. These decisions are based upon the ground that the statutes requiring the observance of the Christian Sabbath, established merely a civil rule, and make no discrimination or preference in favor of any religion. By an examination of these cases, it will be seen that the position taken rests in mere assertion, and that not a single argument is adduced