The appeal in each of thesé cases is from a conviction upon indictment for Sabbath breaking. In the first case the appellant is accused of laboring on the Sabbath by as-, sisting in operating d railroad train loaded with cotton from the town of Nashville, Arkansas, to Hope, Arkansas; and in the other case the appellant railroad company is accused of compelling one of its servants to labor on the Sabbath by assisting in the operation of the same train. In each case the trial judge, after hearing all the evidence, instructed the jury to return a verdict of guilty, which was done, and a fine of one dollar was adjudged against each of the appellants.
There is no statute in this State directed specially against the operation of Sunday trains, and the indictments are based upon the general statute making it unlawful for any person to labor on the Sabbath, or to compel a servant or apprentice to labor on that day, except to perform “customary household duties, of daily necessity, comfort or charity.” Kirby’s Digest, § 2030.
The court, in construing the term “necessity” as used in the statute, has held that “it is not an absolute, unavoidable, physical necessity that is meant, but rather an economic and moral necessity.” Shipley v. State, 61 Ark. 219; State v. Collett, 72 Ark. 167.
There was no evidence adduced in the trials below tending to show that the labor performed was necessary, within the meaning of the statute. It might as well have been done on any other day, if the railway company had seen fit to furnish necessary facilities, and was performed on that day merely because it was more convenient to do so.
We do not mean to hold that railroad work in -the operation of trains or otherwise may not 'be shown to be a “necessity,” so as to fall within the exception in the statute against Sunday labor, but such is not the case here. Under a similar statute the Kentucky Court of Appeals held that the running of passenger trains, and freight trains carrying perishable commodities, was. work of necessity. Com. v. L. & N. Rd. Co., 80 Ky. 291. The fact alone that it is labor performed in the operation of railroad train does not bring it within the exception.
It is certainly within the province of the lawmakers to prohibit the operation of railroad trains on Sunday, the same as other labor or business (Hennington v. Georgia, 163 U. S. 299); and we think the Legislature of this State has done so by the passage of the general statute on the subject just mentioned. .
The undisputed evidence established the guilt of each of the appellants, and the court committed no error in so instructing the jury.
Affirmed.