Ex Parte Koser

Morrison, C. J., concurring:

I concur in the judgment remanding the petitioner, and adhere to the views expressed by me in Ex parte Burke (59 Cal. 6).

*193Myrick, J.:

For the reasons given by the Chief Justice in Ex parte Burke, opinion filed October 31,1881, in the dissenting opinion in Ex parte Newman, 9 Cal. 502, in the opinion of this Court in Ex parte Andrews, 18 id. 678, and Ex parte Bird, 19 id. 130,1 think the petitioner should be remanded. Field, J., in Ex parte Newman, used the following language:

“ The Legislature possesses the undoubted right to pass laws for the preservation of health and the promotion of good morals, and if it is of opinion that periodical cessation from labor will tend to both, and thinks proper to carry its opinions into a statutory enactment on the subject, there is no power, outside of its constituents, which can sit in judgment upon its action. It is not for the judiciary to assume a wisdom which it denies to. the Legislature, and exercise a supervision over the discretion of the latter. It is not the province of the judiciary to pass upon the wisdom and policy of legislation; and when it does so, it usurps a power never conferred by the Constitution.”

The people of this State, through their Legislature, have declared in favor of the wisdom and policy of the law in question. They have declared their wishes in the matter. If the people now wish a change, if the public sentiment is now other than it was, there is a plain, speedy and adequate remedy, viz., by a repeal or modification of the law. The Courts should not declare a statute unconstitutional, unless it be clearly so; where there is a doubt, that doubt should be solved in favor of the expressed wishes of the people as given in the statute.

I think it was competent for the Legislature to declare, as it has done in Section 301 of the Penal Code, that the good of society, public morals and health, will be promoted by exempting hotels, boarding houses, barber shops, baths, markets, restaurants, taverns, livery stables, retail drug stores, and such manufacturing establishments as are usually kept in continued operation, from being affected by Section 300, and that society, as it is constituted, needs the continued use of such places for its well being. Whatever may be individual opinion from a religious standpoint, I cannot say, as a matter of *194law, that a man will not be more benefited by bathing or by being shaved, or by having meals, or a drive, on Sunday, than he will by visiting a store, saloon or banking house. Such distinctions are for the consideration of the Legislature.

The religious element which is brought into the discussion or all these questions, by those who take extreme views on either side, has no proper place in this case. In some States Sunday laws are upheld from a religious point of view; in others from a secular point of view, only. In this State, the policy of the law, as indicated in the decisions, is fully committed to the secular phase of the subject, only. Therefore, there is no occasion to continually bring forward and urge the religious phase.

As to the effect to be given to the title and head line of the section in question: The Act considered by Field, J., and by him held good, in Ex parte Newman, was entitled “ An Act to provide for the better observance of the Sabbath;” the Act sustained by this court in Ex parte Andrews and Ex parte Bird, supra, was entitled “ An Act for the observance of the Sabbath.” It is claimed, however, that greater force is to be given to head lines in the Codes than to the titles of Acts. The head line of Title ix of the Penal Code, containing the sections before us in the case at bar, reads: Of crimes against the person and against public decency and good morals.” The head line of the chapter reads: “ Of crimes against religion and conscience, and other offenses against good morals.” If there be any difference in substance between the titles of the former Acts and the head lines in the Code, it is in favor of the sections in question, because we may strike out the words against religion and conscience and other offenses,” in the Lead line to the chapter and leave it reading: “ Of crimes .against good morals” thus disregarding objectionable words, and retaining words and intentions unobjectionable. No Court has ever held that the Legislature may not pass laws to protect good morals. Whether good morals will be protected by cessation from secular employments on one day of the week, is for the Legislature to determine.

The head line of the title has no reference to religion, and does not indicate that the Legislature had religion in view; if the head line of the chapter is a part of the sections follow*195ing, and influences their construction,, the head line of the title is still larger and more comprehensive, and should also he considered.

It may be added that the sub-head line of the chapter, relating to Section 300, reads:

“ 300. Keeping open places of business on Sunday,” here again omitting the word “ religion.”

It may be that the Legislature, in inserting the words “ against religion and conscience,” in the head line of the chapter, had in mind Section 304, prohibiting the selling of liquors and other merchandise at any camp or field meeting for religious worship, and Section 302, prohibiting the disturbance of religious assemblages or worship. We cannot, as a matter of law, say that it did not intend to restrict the application of the word religion ” to those sections only. If the effect is to be given to head lines, which is claimed in this case, many of the provisions of the various codes must be held to be nugatory.

McKee, J.:

I concur. Whatever may be urged against the policy of the law which is called in question in this case, is not a matter for the consideration of the Court. The policy or impolicy of the law belongs to the Legislature, whose will, as expressed by the law, is controllable only by the people. If the people consider a law impolitic or unwise, and desire its repeal, they must address themselves to their legislators. But so long as the law remains on the statute book, it is binding upon Courts and people; and it is only with its constitutionality that Courts have to deal.

The law under consideration is principally called in question because it is claimed to conflict with Section 4 Article i of the Constitution of the State, which declares that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this State. But, as I read it, the law simply expresses the intention of the Legislature to establish a day of rest from secular employments. It is not so expressed in exact terms, but that is unquestionably the reason and purpose of the law; for it regulates the observance of Sunday by *196prohibiting acts to be done on that day, which, if done, would be contrary to public morals and decorum, and render nugatory the law which establishes the day as a secular institution.

Of the power of the State to establish such an institution, I think there can be no reasonable doubt. Under our free form of government, the Legislature of the State has authority, in the exercise of the police power of the State, to establish for the intercourse of the several members of the body politic with each other, those rules of good conduct and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as reasonably consistent with a correspondent enjoyment by others. “This,” says Mr. Justice Cooley, “is a most comprehensive branch of sovereignty, extending, as it does, to every person, every public and private right, everything in the nature of property, every relation in the State, in society and in private life:” and for the regulation of the internal police of the State, it is a power which belongs exclusively to the State. (Cooley on Cons. Lim. 227.)

Of course a law passed in the exercise of this sovereign power must be in harmony with the will of the people, as expressed in their organic law. The one must explain or confirm the other. The enforceability of the statute law must be tested and verified by the Constitution. And the question arises, how or in what respect does the law under consideration, which as we have seen, simply establishes a day of rest as an institute of the State, interfere with the free exercise and enjoyment of the religious profession and worship of any of the religious groups within the limits of the State, or of any of their individual members ? Answer is made that the day set apart by the State for that purpose is Sunday or the Christian Sabbath, and that the observance of the day is made compulsory upon those who, under the authority of non-Christain Churches to which they belong, have to regard and keep sacred some other day than the Christian Sabbath, and therefore the law discriminates against them and in favor of Christians.

The argument seems to interpose the authority of churches against the power of the State—to exalt the inferior at the expense of the superior—the protected against its protector. But as between the State and religious bodies within the *197limits of the State, the power of the State, under her organic law, is supreme.

By virtue of her sovereignty, the State has guaranteed freedom of religious opinion and worship to all religious bodies and people within her boundaries. But in granting those guarantees, she did not relinquish to religious bodies, nor divest herself of the power to establish a day of rest as a municipal institution for the people of the State. That power was reserved to be exercised over all the members of the body politic, without reference to whether they are Christians or Hebrews, followers of Confucius, of Guatama Buddha, of Mohamet or of Joe Smith ; or those who say in their hearts, “ There is no God.” Subject to that reservation, every citizen of. the State is left free to his intellectual convictions and emotional fervors upon subjects of the unknown and unknowable. All are equal in the laws, in positions under the law, and in the administration of the Government. Ho legal distinction or discrimination can be made between them. But, thus protected, all are subject to the municipal institutions established by the State. And in establishing a day of rest as one of those institutions, the State has the right to determine what day ought to be set apart for that purpose, and how it ought to observed by the people. She is not bound by any constitutional obligations to the selection of any particular day. Any one day in seven, or in six, or in eight— either the first or the seventh day of the week, or any other day, may be appropriated by her for that purpose. Sunday is only a designation for the first day of the week; and to deny the power of the State to set apart that day, or any other day, is to deny the power to set apart a day of rest as a municipal institution at all. But that is not contended. It is conceded that the power exists and is exerciseable, subject to the guarantees of the Constitution. It is only claimed that these guarantees have been invaded, because the legislation in question infringes upon the religious liberties of the Hebrews and the Seventh Day Adventists, and, it may be, other religious citizens, by making it compulsory upon them to observe a day which they are, by the authority of their churches and their consciences, forbidden to keep holy. In such views, men simply deceive themselves by words; for the State has not set *198apart Sunday for a day of rest as a religions institution; nor does she impose observance of the day upon churches or on church members, nor are religious commemorations or ceremonies prescribed or enforced. The duty of observing the day is imposed on the people of the State as members of the body politic, without reference to the religious faith and worship of any.

And as a day of rest, Sunday is not set apart as a holy day,but it is set apart as a legal holiday. As such the State has from the beginning appropriated it. On that day the business of her Courts and public offices is suspended; presentment of commercial paper, and services of legal notices and civil process, is disallowed; and in the computation of time for the performance of an act required by contract .or law to be performed on a day which may happen to fall on Sunday, the day is excluded ; and the people generally, without reference to faiths or creeds, have observed, and continue to observe it as such, unconscious that, as a municipal institution, it has ever invaded or violated any of their constitutional or religious rights.

But it is urged that the heading of the chapter of the Penal Code in which the law is contained demonstrates the unconstitutionality of the law, because the acts which are prohibited on Sunday are made offenses against religion, conscience and morals, and therefore the law discriminates in favor of the Christian religion against other religions.

The office of the heading of the chapter is simply to control, limit, and apply the provisions of the chapter. Ten sections in all comprise those provisions; two or three of them relate to the observance of Sunday or the Christian Sabbath (§§ 299, 300, 301), one of them to offenses against all religions (§ 302), and mostly all of them to offenses against good morals.

Considered as part of the chapter, I think there is no difficulty in ascertaining from the heading to what subjects the words of the heading relate, or in determining what the Legislature intended to prohibit as offenses against religion, conscience and public morals. Keeping in mind that the Code establishes the law of the State respecting all subjects; and that its provisions are to be liberally construed with a view *199to effect the objects of the law and to promote justice, where is the violation of any provision of the Constitution in prohibiting, on a day established by the State as a day of rest, such acts of licentiousness, profanity and disorder as are calculated to shock the moral sense of the community, or to disturb the rest established by law ? It can only be, because the objector contracts such acts on that day to offenses against the Christian religion, and not against Ms religion; and that the moral sense which may be shocked by acts done on that day is in a moral sense only from the Christian’s standpoint.

But the acts are not prohibited as offenses against any religion—Christian or Pagan, It is true that the day on which they are prohibited is coincident with the Christian Sabbath; but as already shown, the State had the right to select that day or any other for a day of rest. And it may be conceded that the acts prohibited by the law on that day, are only prohibited because they are such as would be offensive to public morals, according to the standard of Christianity. But if the prohibition does not interfere with any man’s liberty of conscience, it is no valid objection to the law, by which the Legislature has compelled the observance of the day, because it prohibits acts to be done which are deemed immoral according to the standard of one religion or another. Doubtless, the law was passed under the influence of Christianity. Assuming that it was, that in itself, should be no objection to the law by the Jew or the Gentile; for the religion of Jesus is closely connected with the religion of Moses—the one is but a development of the other, and pervades the ordinary political and moral life of the people; and the legislator, in the course and character of legislation, can recognize no other standard of moral ideas. As the prevailing religious opinion of the people public morals are largely dependent upon it.

The mere fact, then, that the mode of observing the day is enforced by the prohibition of acts which are offensive to public morals according to the standard of Christianity, affords no ground for constitutional objection to the law itself, if it does not violate the religious rights of others who do not call themselves Christians. But neither the religious profession and worship of the Jews, or of the Seventh Day

*200Adventists, or of any other religious association, are abridged by the law.

“There is,” said Mr. Justice O’Neall, of the Supreme Court of South Carolina, in the year 1848, in language applicable alike to all religions as to the religion of the Hebrews, of which he was speaking, “ no violation of the Hebrew’s religion, in requiring him to cease from labor on another day than his Sabbath, if he be left free to observe the latter according to his religion. It is the seventh day which is to him a holy day, made so by his religion, and to be observed at his peril. All other days are to him indifferent. Hence he can find no abridgment of his religion in being compelled to abstain from public trade, employment, or business, on one of them. If the Legislature, or the city of Charleston, were to declare that all shops within the State or city should be closed, and that no one should sell or offer to sell any goods, wares, or merchandise, on the Fourth of July or Eighth of January in each year, would any one believe such a law was unconstitutional? It could not be pretended that religion had anything to do with that. What has religion to do with a similar regulation for Sunday ? It is, in a political and social point of view, a mere day of rest; its observance, as such, is a mere question of expediency. But, says the argument on the other side, we should not object to it if it did not give a Christian a preference over an Israelite. Where is such a provision? There is none such in the law. It is general, operating upon all. The Constitution, in the respect under consideration, considers all the people of South Carolina, on whom the Government is to operate, as citizens merely. It does not divide them into Christians and Hebrews or any other classification. If the law be according to that, there is no objection. It is true, the Israelite must cease from business on Sunday; so do all others. His religion makes him also observe Saturday. That is not the effect of our law; it is the result of his religion, and, to enjoy its cherished benefits, living in a community who have appointed a different day of rest, he must give to its law obedience, so far as it demands cessation from public employment.”

It is not necessary to dwell upon the objections that the law in question is special legislation, and does not operate *201alike upon all classes. These objections have been satisfactorily disposed of by the learned opinion of the Chief Justice of this Court in Ex parte Burke, (59 Cal. 6). I think the petitioner should be remanded.