The statute under which the indictment in this case was preferred provides:
"Any person who compels his child, apprentice, or servant to perform any labor on Sunday, except the customary domestic duties of daily necessity or comfort, or works of charity; or who engages in shooting, hunting, gaming, card playing, domino playing, or racing on that day; or who, being a merchant or shopkeeper, druggists excepted, keeps open store on that day, must, for the first offense, be fined not less than ten or more than twenty dollars," etc.
This statute seems to have originated in the Code of 1852, as sections 3302 and 3303, and the offense denounced thereby has been designated in the subsequent Codes as "Sabbath breaking" (Code of 1867, § 3614), "Sunday laws" (Code 1876, § 4443, Code 1886, § 4045), and "Sunday violation" (Code 1907, § 7814), and its manifest purpose is to preserve, in so far as is practicable, the "Christian Sabbath," as one of the institutions upon which our Christian civilization is pillowed.
The sentiment embodied in the statute is of divine origin, and finds expression in one of the commandments:
"Remember the Sabbath day, to keep it holy. Six days shalt thou labour, and do all thy work; but the seventh day is the Sabbath of the Lord thy God; in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates; for in six days the Lord made heaven and earth, the sea, and all that in them is, and rested the seventh day; wherefore the Lord blessed the Sabbath day, and hallowed it." Ex. xx, 8-11; Gen. ii, 2-3.
In the preamble to an act of the Legislature of Massachusetts of a kindred nature, we note the following:
" 'And whereas many persons are of opinion that the Sabbath, or time of religious rest, begins on Saturday evening; therefore, to prevent all unnecessary disturbance of persons of such opinion, as well as to encourage in all others a due and seasonable preparation for the religious duties of the Lord's day,' be it enacted," etc. Province Laws 1760-61, c. 20, § 9.
And the Supreme Court of that state, in construing this statute, said:
"The Legislature intended by this statute to keep the ordinary places of traffic, business, and work closed on this day, so that those persons who desired to relax from labor and business, and attend private and public worship, might not be disturbed by persons pursuing their worldly business, and avocations, in open shop." Com. Dextra, 143 Mass. 28,8 N.E. 756.
In Jebeles v. State, 131 Ala. 43, 31 So. 377, the Supreme Court, construing this statute, speaking by McClellan, C. J., said:
"This statute, in our opinion, sufficiently describes the offense intended to be denounced. The 'keeping of open store' implies something more than opening the door of a shop or store or keeping the door open. It involves the keeping open of the store as such, the opening up of the business carried on in the house, the exposition to sale of the wares stored there for sale. The words, in and of themselves, mean the opening up and keeping open the storehouse of goods, wares, and merchandise for the purposes of traffic." (Italics supplied.)
The statute is a recognition that it is the right of the citizen to observe and keep holy the Sabbath day, and that to allow the ordinary activities of everyday life, in seeking pleasure and gain, would obstruct Sabbath observance and tend to commercialize the Sabbath day. *Page 217
In so far as it affects merchants or shopkeepers, it is directed against traffic or activities for gain, not because it is inherently wrong to sell an article or commodity of merchandise, but because the traffic tends to detract from serious Sabbath observance, and disturbs those who may desire to conscientiously observe the Sabbath as an act of divine worship.
If we assume that A. is engaged in the business of selling all such sundries, as are usually carried in a "well-regulated drug store," yet is not a "druggist," and therefore cannot sell drugs, while B., his neighbor, who is a "druggist," carries the same class of goods, and in addition a stock of drugs, the law says to A., you must close your business on the Sabbath, but B. may keep open and sell his goods, it does not require a great stretch of the imagination to see that this condition would tend to disturb A. in serious observance of the Sabbath. The law thus construed places A. at a disadvantage, and hazards the loss of his customers, while it permits B., prompted solely by a desire for gain, to pursue his usual daily activities in the prosecution of his business.
The question therefore is, Does the term "druggist," as used in the statute, refer to the person excepted, or is it descriptive of the business excepted? The Supreme Court has answered this question in the following language:
"The design of the statute is to prevent the traffic of merchandise as a business on the Sabbath, excepting only the sale of drugs." Dixon v. State, 76 Ala. 89.
Whether this utterance is mere dictum or not, it is undoubtedly a sound interpretation of the statute, and, as supporting it, we note as appearing in the Code of 1852, for the first time, the following statute, which might be said to be in pari materia with the statute under consideration, to wit:
"All druggists in this state are required to obtain a license to deal in drugs from a medical board of the county in which such business is pursued; or if there is no board in such county, then from the medical board established in the nearest county thereto; and any person violating the provisions of this section, on proof thereof, is not entitled to recover for any drugs or medicines he has sold, and is also guilty of a misdemeanor, and, on conviction, must be fined not less than one hundred dollars." Code 1852, § 980.
It is manifest that a person, though qualified to sell drugs, if he did not engage in the business, he could not be required to obtain a license, and it is equally clear that the term "druggist," as used in these statutes, is used in the restricted sense, and relates to the business of selling drugs, and not to a person qualified to engage in such business. Dixon v. State, supra; Com. v. Dale, 144 Mass. 363, 11 N.E. 534; Com. v. Crowley, 145 Mass. 430, 14 N.E. 459.
Since the construction placed on the statute in Dixon's Case, supra, it has been brought forward and readopted in all of the subsequent Codes without change, and, under the uniform holding in this state, the readoption of the statute is an adoption of the judicial construction. Huffman v. State, 29 Ala. 40; Anthony v. State, 29 Ala. 27; Ex parte Banks, 28 Ala. 28; 1 Mayf. § 11.
Although penal statutes are to be strictly construed, and cannot be extended by construction, yet they are not to be construed so strictly as to defeat the obvious intention of the Legislature. Crosby v. Hawthorn, 25 Ala. 221; Noles v. State,24 Ala. 672. And if a literal interpretation would defeat the purpose of the statute, such interpretation will not be adopted, if any other reasonable construction can be given. Thompson v. State, 20 Ala. 54.
If all persons operating drug stores can enlarge their business by extending it to one line of merchandise, they can extend it to another and so on ad infinitum, and such interpretation of the statute would not only defeat its purpose, but would render it unjust and discriminatory in favor of a certain class and against all others.
The agreed case was properly disposed of by the trial court, and the judgment should be affirmed. 1 R. C. L. p. 779, § 6.