The petitioner, Koser, was convicted of keeping open a saloon on Sunday, November 9, 1881, for the purpose of transacting- business therein, contrary to the provisions of Section 300 of the Penal Code. He was sentenced under this conviction and imprisoned, and sued out this writ to be discharged from such imprisonment as unauthorized by law.
The legality of the imprisonment depends on the constitutionality of the laws known as the Sunday laws, which are comprised in Sections .300 and 301 of the Code above cited. These sections are as follows:
“ 300. Every, person who keeps open on Sunday any store, workshop, bar, saloon, banking-house or other place of business for the purpose of transacting business therein, is punishable by fine not less than five nor more than fifty dollars.
*189“ 301. The provisions of the preceding section do not apply to persons who, on Sunday, keep open hotels, boarding houses, barber shops, baths, markets, restaurants, taverns, livery stables or retail drug stores, for the legitimate business of each, or such manufacturing establishments as are usually kept in continued operation; provided, that the provisions of the preceding section shall apply to persons keeping open barber shops, bath houses, and hair-dressing saloons, after twelve o’clock M. on Sunday.”
Most of the questions arising in this case were passed on in Ex parte Andrews, 18 Cal. 678. The statute considered in the case cited was for the greater part the same as the sections of the Penal Code above quoted. The principal difference between them is the addition of the proviso in Section 301, which was inserted by an act of the Legislature approved April 15, 1880.
It is urged that this statute is a special law, and is violative of the second subdivision of Section 25 of Article iv of the Constitution of this State. This section and subdivision prohibit the Legislature from passing- special laws “ for the punishment of crimes and misdemeanors.” It is also urged that it violates the last clause of Section 21 of Article i of the Constitution, which is as follows: “Nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens;” and it is further said to be violative of Section 11 of the same Article, prescribing that all laws of a general nature shall have a uniform operation."
As is said by Judge Cooley, in his work on Constitutional Limitations, “the Legislature is to make laws for the public good,” and further, “that what is for the public good, and what are public purposes, and what does properly constitute a public burden, are questions which the Legislature must decide upon its own judgment, and in respect to which it is vested with a large discretion which cannot be controlled by the Courts, except, perhaps, when its action is clearly evasive, and where, under pretense of a lawful authority, it has assumed to exercise one that is unlawful.” (Cooley’s Con. Lim., 156-7.)
The offense defined in the sections of the Code above quoted *190is of the class mala prohibita. Independent of statute, it is not an offense, and the Legislature in making the sections was merely adding to the class of public offenses which it deemed expedient should be prohibited by statute. In making the exception in 801, it merely declared that in its judgment, there was something in the nature of the callings specified in such section, which rendered it improper to include them within the act. The exclusion made by Section 801 was not arbitrary and the discrimination was reasonable. It was very easy to perceive that there are features in the character of the callings referred to in Section 301, and in their relation to the community in which they exist, which render such exclusion proper, and one upon which the Legislature might wisely exercise its judgment in leaving them unaffected by penal enactment. Certainly, the Legislature is intrusted with an enlarged discretion to determine what shall be punished criminally and what shall not be, to fix upon what shall be put in the class of mala prohibita, and what shall not be included.
It is consistent with this view, to conclude and hold that such a law is a general one, uniform in its operation, and that by it no privilege or immunity is granted so as to bring it in conflict with the clause of the Constitution above referred to.
The classification made in Section 301 is based on reasonable grounds, and, as has been above remarked, is not arbitrary. This will be readily recognized when we compare the callings excluded from prohibition with those made subject to it, so far as they are specifically mentioned in Section 300. Let a comparison be made between hotels, boarding houses, barber shops, baths, markets, restaurants, taverns, livery stables and retail drug stores, specified in Section 301, and stores, workshops, bars, saloons and banking houses, specified in Section 300, and a difference in their essential features, as regards society and the health and comfort of those who constitute a community, will be at once admitted. Unless such a distinction is made, as has been by the provisions of Section 301, the Legislature,in endeavoring to preserve the health and physical wel-being of the member of a community, would be exercising its power so as to put it in peril.
*191The circumstance that the callings excluded appear to form an exception from a general law in the shape which the legislation has taken, has given rise to the idea that the law contravenes the provisions of the Constitution. If the law had specified the kinds of business to which the prohibition extended, without mentioning those excluded, we do not think that the impression of its invalidity as conflicting with the paramount law, would have so taken possession of the minds of those who urge its unconstitutionality.
To hold such enactments unconstitutional and void would, in my judgment, impose an unwarrantable restriction on the legislative power. A kindred power is exercised in fixing the grades of criminality, as in the distinction between petit larceny and grand larceny, and classifying homicide and arson by degrees of criminality and affixing to each a different degree of punishment. Such a power is exercised in Section 304 of the" Penal Code, where the act of erecting or keeping a booth, tent, stall, etc., for the purpose of selling or otherwise disposing of wine or spirituous or intoxicating liquors within one mile of any camp or field meeting, for religious worship, during the time of holding such worship, is made punishable by fine. Why confine the operation of such enactment to one mile ? Why not extend it to one mile and a quarter ? The Legislature is allowed to exercise its judgment as to the distance, and properly so.
Declaring the provisions of the sections referred to invalid as violative of the Constitution, would be to strike at the foundation of the legislative power to determine what acts, of those not mala in se, shall be punished criminally, and what shall not be punished. In most cases acts not mala in se are by statute declared penal offenses, while acts, apparently of a like nature, are not declared to be penal. What other power than the Legislature can or should draw the line, on one side of which is liability to punishment, and on the other side no such liability is incurred.
We are referred by the learned counsel to the case of Ex parte Westerfield, 55 Cal. 550, as determining the question that the law in question is a special law. The distinction between the Statute passed on in that case and the Sections 300 and 301 of the Penal Code is palpable. The former selected *192a particular class, viz., “ persons engaged in the business of baking for the purpose of sale,” and forbade them from laboring during a specified period. This was clearly a special law, and was properly held to be so. Every one engaged in any other calling or profession was permitted to labor. It may be further said that the discrimination by such act was not made on any reasonable grounds, but appeared to be entirely arbitrary. We observe nothing in the case cited in conflict with the views above expressed.
The contention that the “ statute under consideration is in conflict with Sections One (1) and Four (4) of the first Article of the Constitution, was discussed and passed on in Ex parte Andrews, above cited. A statute, so far as the question to be passed on here is concerned, similar to the sections of the Penal Code above cited, was before the Court in that case, and its constitutionality was sustained. We concur in the views there expressed as to this matter, and deem it unnecessary to say anything further as to this contention.
As to the headings of the chapters in which Sections 300 and 301, Penal Code, are found, we cannot on a full consideration of them see anything to lead to a different conclusion from that reached therein. Granting that they may be resorted to to determine as to the correct interpretation of the sections included in the chapter (and nothing further, in our opinion, is determined in Barnes v. Jones, 51 Cal. 305), we cannot perceive that their headings are conclusive of the question of power of the Legislature to pass such statute. The Legislature may hold their power to enact a statute to be derived from a clause or section of the Constitution, which does not confer it. But such error would not render the law so passed, unconstitutional, if the power to enact it was conferred by the organic law.
In my opinion the Act above referred to is constitutional, and the petitioner should be remanded to the custody of the officer.