On an agreed statement of facts, the appellee, John Henley, was convicted in a municipal court of keeping open his store on Sunday, appealed to the circuit court where the case was tried by the judge thereof on an agreed statement of facts, and was acquitted and discharged. The municipality appeals here, and no brief is filed for the appellee.
It was agreed that Henley advertised that on a certain Sunday he would keep open his meat market which was located in the same room wherein he maintained a grocery store; the meat market being in the rear of the grocery store, and the only entrance to the store or market being through the front door of the store. It was agreed that he kept open on the particular Sunday only for the purpose of selling meats.
The municipality had adopted as an ordinance the state statute, section 1132, Code 1930, reading as follows: "A merchant, shopkeeper, or other person shall not keep *Page 280 open store, or dispose of any wares or merchandise, goods, or chattels, on Sunday, or sell or barter the same; and every person so offending shall, on conviction, be fined not more than twenty dollars for every such offense; but this shall not apply to apothecaries or druggists who may open their stores for the sale of medicines." In principle, this section does not differ from section 2950, Code 1880.
The statute was construed and applied in the case of Elkin v. State, 63 Miss. 129.
It is unlawful to keep open a store, and if it be conceded, which we do not here decide, that section 1131, Code 1930, as amended by Laws 1932, chapter 248, exempting laborers on railroads, etc., and meat markets in municipalities of less than five thousand inhabitants, can be read into section 1132, Code 1930, still this would not justify the appellee in keeping open his store on Sunday, since section 1132 makes it a misdemeanor to keep open a store on Sunday whether goods are sold therein or not.
It will be observed that section 1131 prohibits labor on Sunday, exempting laborers engaged in certain lines of business, including meat markets. It does not refer to keeping open store or meat market, and it may be seriously debated that the exemption of laborers in a meat market may be read into section 1132 as a part thereof.
The appellee, on the agreed statement of facts should have been convicted.
This is an expression of opinion only, as we cannot enter a judgment in this case. See State v. Johnson, 166 Miss. 591,148 So. 389. *Page 281