The opinion of the Court was drawn up by
Whitman C. J.— The question reserved for the consideration of the Court is, whether a warrant issued upon a complaint under the statute of 1846, c. 205, to restrict the sale of intoxicating drinks, could lawfully be executed on the Lord’s day. By the Rev. Stat. c. 114, <§> 104, the execution of any civil process, on that day, is prohibited. If it had been the intention of the Legislature, that criminal process should not be executed on that day, it must be very evident, that the prohibition would not have been restricted to the service of civil process on that day. In Pearce v. Atwood, 13 Mass. R. 324, it was held, that persons charged with any crime whatever may lawfully be arrested on the Lord’s day. This State was then a part of Massachusetts. The enactments on this subject have not been essentially varied, in this State, from what they were before separation. There is, therefore, no prohibition either at common law, or by statute, of the service of process, in criminal cases, on the Lord’s day, except in so far as the service of the same might be unnecessary on that day.
That the warrant, by virtue of which the plaintiff was arrested, was a criminal mode of proceeding, will not admit of a doubt. It had been issued by a justice of the peace upon a complaint, charging the plaintiff with the commission of an offence, a breach of a provision of a statute of the State. The sentence to be awarded against him, in case of conviction, must have been the payment of a fine. It was quite immaterial, whether it was payable for the use of an individual, or of the State. The statute under which it would have been recoverable, was not remedial, but penal. In case of the non-payment of the fine the order must have been, that he should stand committed till sentence should be performed. That the same penalty might be recovered in a civil action can *335make no difference. There have been many cases in which, by provisions of law, a person might proceed either criminaliter or civiliter, at his election, to avail himself of a penally, which he may be authorized to recover, for himself, or for himself and the State or others. Sec. 8 of the above act, (c. 205,) shows clearly, if other proofs were needed, that when proceedings by complaint and warrant are under that act, they are of a criminal character. That section provides, that if any person, after having been once convicted of a violation of the provisions of that act, shall be guilty, and upon complaint be convicted of a like offence, he shall be punished by a fine of not less than five, nor more than twenty dollars; and be committed until sentence be performed.
Thus it will be seen that the conclusion, upon the point reserved, is adverse to the plaintiff; and the cause must stand for trial, if the plaintiff should not conclude to become non-suit.
Whether it will be competent for the plaintiff to introduce proof, that his arrest on the Lord’s day was an unnecessary labor or not, is not referred to us; and of course we do not definitively decide it. It may, nevertheless, be observed, that it is not perceived why the literal import of the words used in the statute, should not include the business of officers in serving warrants, they being at the same time, entitled to the benefit of the exception of works of “ necessity or charity and on the principle, that officers shall be presumed to act within the sphere of their duty, till the contrary be made apparent. And it may be noted, that in the case of Pearce v. Atwood, before cited, the Court observe, that magistrates and officers will “ consider, that all official unnecessary labor will expose them to the penalties of the act for the due observance of the Lord’s day, although their doings may not be void.” Those, whom the officer may call on as aids, may nevertheless be excusable, and not liable to an action, if they do no more than would ordinarily be consistent with their duty as aids. They aro not bound to inquire whether the officer employing them, has good cause for making an arrest, in a criminal case, on Sunday or not.