(dissenting), said :
This is a writ of error to a judgment of the circuit court of Pulaski county, rendered at tlie March term, 1891, when the circuit court affirmed the judgment of the county court, rendered at the February term, 1891, of said county court, where the plaintiff’ in error was convicted for a violation of the Sunday laws of this commonwealth, and adjudged to pay a fine of fifty dollars. It is admitted that the said plaintiff in error openly violated the law of the state, upon the ground that it is in violation of the Constitution of the United States, because it is an interference by the state with the subject of commerce among the states; that the Constitution of the United States provides (article I, section 8) that the Congress shall have power to regulate commerce with foreign nations, and among the states, and with the Indian tribes. Our Code provides that “ if a person, on a Sabbath day, be found laboring at an}T trade or calling, or employ his apprentices or servants in labor or other business, except in household or other work of necessity or charity, he shall forfeit two dollars for each offence. Every day any servant or apprentice is so emplojmd shall constitute a distinct offence.” Code of Virginia, section 3799. This plaintiff in error is a domestic corporation, domiciled within the state of Virginia, holding its chartered rights under the grant of the state, whose charter, by its express terms, provides that it may be altered, modified, or repealed by any future legislature as they may think proper. • Id. § 1240. The absolute prohibition against laboring at its calling being, in the legislative mind, inexpedient in its application to this or *106other domestic corporations, the legislature, in 1884, enacted a statute which modified the general law, and excepted such trains as were loaded with passengers and perishable freight, and which suffer injury by delay, and provided as follows': “ Ho railroad company, receiver, or trustee controlling or operating a railroad shall, by any agent or employee, load, unload, run, or transport upon such road on a Sunday, any car, train of cars, or locomotive, nor permit the same to be done by any such agent, or employee, except when such cars, trains, or locomotives are used exclusively for the use of wrecked trains, or trains so disabled as to obstruct the main track of the railroad or for the transportation of the United States mail, or for the transportation of passengers and their baggage, or the transportation of live-stock, or for the transportation of articles of such perishable nature as would be necessarily impaired in value by one day’s delay in their passage : provided, however, that if it should be necessary to transport live-stock or perishable articles on a Sunday to an extent not sufficient to make a whole train-load, such train load may be made up with cars loaded with ordinary freight.” Section 3802 provides that “ the word ‘ Sunday ’ in the preceding section shall be construed to embrace only that portion of the day between sunrise and sunset; and the trains in tranxitu having started prior to 12 o’clock on Saturday may, in order to reach the terminus or shops of the railroad, run until 9 o’clock the following Sunday morning, but not later.” Section 3803 jjrovides the penalty, which is immaterial in this case, the fine assessed not being in violation thereof. These sections constitute our Sunday laws, not very stringent, it must be admitted, as far as railroads are concerned; its extreme liberality in the privileges, to labor on the Sabbath accorded therein suggesting the thought that, when the law was drawn, the railroads in some form stood-by consenting, but how this is I have no information. However that may be, the law is now obnoxious to the railroad in question, and in some localities the lower courts have refused to enforce the lawr.
*107The question now to be inquired into is, 'What is the nature of this law ? Is it an act to regulate commerce with foreign nations, or among the states, or with the Indian tribes ? And does it thus invade the granted powers of the Congress, under the Constitution of the United States, and conflict with them ? If so, it cannot be upheld. It certainly was not so intended. Uothing is said about commerce nor about transportation between the states. It is absolutely limited in its operations to the state of Virginia. It is to be found in the chapter of our Code entitled “Of offences against morality or decency; protection of religious" meetings.” The section which precedes it is entitled “ Profane swearing and drunkenness; how punished.” The section which succeeds it is entitled “ Sale of intoxicating liquors on Sunday; how punished.” The next is “Disturbance of religious worship; how punished.” It is intended as an exercise of the police power of the state, in the interest of morality and decency, and that is what I think it is. It is no part of the province of Congress, under its granted powers, to enact police laws for the regulation of such affairs within a state; and if this state may not enact, for the protection of its citizens, police laws for the observance of the Sabbath day, we must ever remain practically without such. I think I am sustained in this -view by the decision of the courts of this country, both State and Federal; and I will briefly proceed to consider this. Commerce consists of the various agreements which have for their object facilitating the exchange of the products of the earth, or the industry of man, with the intent to realize a profit. Commerce with foreign countries and among the states, strictly considered, consists in. intercourse and traffic, including in these terms navigation, and the transportation of persons and property, as well as the purchase, sale, and exchange of commodities. The power conferred upon the Congress by the above causéis conclusive, so far as it relates to matters within its purview "which are material in their character, and admit of a requisite uniformity of regu*108lation affecting all the states. That clause was adopted in order to secure uniformity against discriminating state legislation. State legislation is not forbidden in matters either local in their ojieration, or intended to be mere aids to commerce, for which special regulations can more effectually provide, such as harbors, pilotage, beacons, buoys, and other improvements of harbors, bays, and rivers within a state, if their free navigation be not thereby impaired. Congress, by its inaction in such matters, virtually declares that until it deems best to act they may be controlled by the state. County of Mobile v. Kimball, 102 U. S. 691. (Opinion of Mr. Justice Field.) In the case of Sherlock v. Alling, 93 U. S. 99, the same learned justice said: “ In supposed support of this position numerous decisions of this court are cited by counsel to the effect that the states cannot by legislation place burdens upon commerce with foreign nations or among the several states.” Upon an examination of these cases it 'will be found that the legislation adjudged invalid imposed a tax upon some instrument or subject of commerce, or exacted a license fee from parties engaged in commercial pursuits, or created an impediment to the free navigation of some public waters, or prescribed conditions in accordance with which commerce in particular articles or between places was required to be conducted. In all the cases the legislation condemned operated directly upon commerce, either by way of tax upon its business, license upon its pursuits in particular channels, or conditions for carrying it on. Thus, in the Passenger Cases, reported in 7 How. 445, the laws of Hew York and Massachusetts exacted a tax from the captains of vessels bringing passengers from foreign jsorts for every passenger landed. In Pennsylvania v. Wheeling, etc., Bridge Co., reported in 13 How. 518, the statute of Virginia authorized the erection of a bridge which was held to obstruct the free navigation of the river Ohio. And in all the other eases, when legislation of a state has been held to be null-for interfering with the commercial power of Congress— *109as in Brown v. Maryland, 12 Wheat. 425 ; Tax Cases, 12 Wall. 204; and in Welton v. Missouri, 91 U. S. 275 — the legislation created in the way of tax, license, or condition, a direct burden of commerce, or in some way directly interfered with its freedom ; and it may bo said generally that the legislation of a state not directed against commerce or any of its regulations, but relating to the rights, duties, and liabilities of citizens, and ■ only indirectly and remotely, affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or engaged in commerce, foreign or interstate, or in any other pursuit. Judge Cooley says, in his work on Constitutional Limitations (page 722): “ The line of distinction between that which constitutes an interference with commerce and that which is a mere police regulation is something dim and shadowy, and it is not to be wondered at that learned jurists differ when endeavoring to classify the cases which arise. It is not doubted that Congress has the power to go beyond the general regulations of commerce which it is accustomed to establish, and to descend to the most minute directions, if it shall be deemed advisable; and to whatever extent ground shall be covered by these directions the exercise of state power is excluded. ”
Congress may establish police regulations as well as the states, confining their operations to the subjects over which it is given control by the constitution. But as the general police power can better be exercised under the supervision of the local authorities, and mischiefs are not likely to spring therefrom so long as the power to arrest collision resides in the national courts, the regulations that are made by Congress do not often exclude the establishment of others by the state covering very many particulars. Moreover, the regulations of commerce are usually, and in some cases must be, general and uniform for the whole country; while in some localities state and local policy will demand peculiar regulations with reference to special and peculiar circumstances.” In the late ease *110of Cardwell v. Bridge Co., 113 U. S. 205, 5 Sup. Ct. Rep. 423, after citing the earlier cases, the court said that they illustrate the general doctrine, now fully recognized, that the commercial power of Congress is exclusive of state authority only when the subjects upon which it is exerted are national in their character, and admit and require uniformity of regulations affecting all the states; and that when the subjects within that power are local in their nature or operation, or constitute mere aids to commerce, the states may provide for their regulation and management until Congress interferes and supersedes their action. I will cite as an illustration of my view of this subject yet another decision of the Supreme Court of the United States upon this subject, which applies to a through line of railway, and .is much in point. In the case of Stone v. Trust Co., 116 U. S. 307, 6 Sup. Ct. Rep. 334, 388, 1191 (one of the railroad commission cases), that court said: “ There can be no doubt that each of the states through which the Mobile & Ohio railroad passes incorporated the company for the purpose of securing the construction of a continuous line of interstate communication between the Gulf of Mexico, in the south, and the Great Lakes in the north. It is equally certain that Congress aided in the construction of parts of this line of road, so as to establish such a route of travel and transportation; but it is none the less true that the corporation created by each state is, for the purposes of local government, a domestic corporation, and that its railroad within the state is a matter of domestic concern. Mississippi may govern this corporation as it does all domestic corporations, m respect to every act, and everything within the state which is the lawful subject of state government. It may, beyond all question, by the settled rule of decision of this court, regulate freights and fares for business done exclusively within the state; and it would seem to be a matter of domestic concern to prevent the company from discriminating against persons and places in Mississippi. So it may make all needful reg*111úlations of a police cliaraeter for the government of the company while operating its road in that jurisdiction. In this way it may certainly require the company to fence, etc., as much of its road as lies within the state, to stop its trains at railroad crossings, to slacken speed while running in a crowded thoroughfare, to put its tai’ifts and time-tables at proper places, etc. This, company is not entirely relieved from state control in Mississippi, simply because it has been incorporated by, and is carrying on business in, the other states through which its road runs. While in Mississippi it can be governed by Mississippi in respect to all things which have not been placed by the Constitution of the United States within the exclusive jurisdiction of Congress. It is not enough to prevent the state from acting that the road in Mississippi is used in aid of interstate commerce. Legislation of this kind, to b„e unconstitutional, must be such as will necessarily amount to or operate as a regulation of business without the state as well as within.” See, also, Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. Rep. 564; Railroad Co. v. Alabama, 128 U. S. 96, 9 Sup. Ct. Rep. 28; Railroad Co. v. People, 105 Ill. 657; Rae v. Railroad Co., 14 Fed. Rep. 401; Iowa v. Railroad Co., 33 Fed. Rep. 391; Railroad Co. v. Becker, 32 Fed. Rep. 849. And as to the right of the state to regulate the charge for taking on through cars — “ switching,” as it is called — by a state commission, it ivas held to have no reference to interstate commerce, in the the case of Railroad Co. v. Becker, supra. And again it was held in the state of Iowa v. Railroad Co., 33 Fed. Rep. 391, that, even if such switching be an act of interstate commerce, such regulation is valid, as it does not refer to the carriage of freight, outside the state. And, again, it was said by the Supreme Court of the United States in Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. Rep. 826, that the power to prescribe regulations to protect the health of the community, and to prevent the spread af disease, is incident to all local municipal authority, however much such regulations may *112interfere with interstate commerce. The interstate commerce act itself, passed February 4, 1887, and amended March 2, 1889, wdren Congress subjected to its control all common carriers engaged in continuous interstate or international transportation of passengers or property, was held not to include the carriage or handling of passengers, by rail or otherwise, wheat such carriage or haaadliaag is performed wholly within a state. Ex-parte Koehler, 30 Fed. Rep. 867. This is the result of all the decisions of the Federal coiarts. Tf the act iat question only applies to and operates upoia transportation within the state, it is immaterial that which the company operated on is part of an interstate line. It must not only affect commerce, but it must affect commerce with foreign aaations or among the states, or with the Indiaaa tribes. But if the act is one done iia the exercise of a police power, it is within the legitimate and uaachallenged domain of the state; such as to regulate coaaeerniaag the paablic health, public peace, and morality and deeeaacy.
Row, what is this police power, aiad where does it reside ? It is defined to be the authority to establish, for the intercourse of the several members of the body politic with each other, those rules of good conduct aiad good aaeighborhood which are ealcaalated to prevent a conflict of rights, and to insure to each the uninterrupted eaijoyment of his own, so far as is reasonably coaasistent. with a corresponding enjoymeaat by others, and is usually spoken of as the authority or power of police. This is a most compreheaasive braaach of sovereignty, extendiaag, as it does, to every person, every public and private right, everything in the nature of property, every relation in the state, iai society, aaad iaa private life. The power vested in the legislature to make, ordain, and establish all manner of wholesome aaid reasonable laws, stataates and ordiaiances as they shall judge to be for the good and welfare of the commonwealth, aaad for the subjects of the same. The exercise of this power, at least, has been left with the individual states, *113and. cannot be taken from them, and exercised wholly or in part under legislation of Congress. Cooley, Const. Lim. 715 ; U. S. v. Dewitt, 9 Wall. 41. Quarantine and health laws of every description, proper regulations for the use of highways, and the general right to control and regulate the public use of navigable waters are unquestionably with the state under the jiolice power. Indeed, the police power of a state, in a comprehensive sense, embraces its whole system of internal regulations by which the state seeks, not only to preserve the public order, and to prevent offences against the state, but also to establish for the intercourse of citizen with citizen those rules of good manners which are calculated to prevent a conflict. of rights. Judge Cooley says, in the American constitutional system the power to establish the ordinary regulations of police, has been left with the states individually, and it cannot be taken from them, either wholly or in' part and, exer- . cised under legislation of Congress; so decided, as we have seen, in U. S. v. Dewitt, 9 Wall. 41. Neither can the national government, through any of its departments or officers, assume any supervision of the police regulations of the states. The state may also, under this power, says the same learned author, regulate the grade of railways, and prescribe how and upon what grade railway tracks may cross each other; and it may apportion the cost of making the necessary crossings between the corporations owning tire roads; and it may establish regulations requiring existing railways to ring the bell or blow the whistles of their engines immediately before passing highways at grade, or other places when their approach might be dangerous to travel, or to station flagmen at such or any other dangerous places. The legislature has power by general laws, from time to time, as the public exigencies may require, to regulate corporations in their franchises so as to provide for the public safety. This is held to be a mere police regulation. Railroad Co. v. Loomis, 13 Ill. 548. But certain powers directly affecting commerce may sometimes be exercised, when the *114purpose is not to interfere with congressional legislation, but merely to regulate the time and manner of transacting business with a view to facilitate trade, secure order,'and prevent confusion. Vanderbilt v. Adams, 7 Cow. 351, where Wood-worth, J., states very clearly the principles on -which police regulations are sustained in such cases.
We have said that the laws to prevent the desecration of the Sabbath came properly under the police power of the State. Judge Cooley says, on this subject, the statute for the punishment of public profanity requires no further justification than the natural impulses of every man -who believs in a Supreme Being, and recognizes his right to the .reverence of his creatures. The laws against the desecration of the Christian Sabbath by labor or sports are not so readily defensible by arguments, the force of which will be admitted by all. The laws which prohibit ordinary employments are to be defended either on the same ground which justifies the punishment of. profanity, or as establishing sanitary regulations, based upon the demonstration of experience that one day’s rest in seven' is needful to recuperate the exhausted energies of body and mind. Judge Cooley, speaking of those laws enacted to prevent desecration of the Sabbath, says they are not unconstitutional as a restraint upon trade and commerce. There can no longer be any question, if any there ever was, that such laws may be supported as regulations of police. Specht v. Com., 8 Pa. St. 312; Bloom v. Richards, 2 Ohio St. 387; Ex-parte Andrews, 18 Cal. 678; Ex-parte Bird, 19 Cal. 130. Upon this subject of the Sabbath day observance, I have found none but state decisions in a great multitude of cited cases. It does not appear to have been ever, so far as my investigation has gone, wtrehhas been somewhat limited, and not thorough, a matter of decision with the Federal courts, so far as the states are concerned. And I believe there- is no probability that Congress will ever assume the right to regulate the observance of the Sabbath day in the states. If, however, it should ever do so, *115I do not doubt that the American Congress will protect the American Sabbath day from unnecessary desecration, by whomsoever it is essayed. Uor do I doubt that, if the Supreme Court of the United States should have this question under consideration, it would hold, as my view is, that the Sunday laws of this commonwealth are within the police powers of the state, and, moreover, that they in no wise affect interstate commerce, but, being limited in their operations to the state, •whatever effect they have upon the through line of transportation outside of the state, it is no more than is proper, and in no way an interference with the granted power of the Congress. It is to be regretted, as it is a Federal question, that it cannot go up to the Supreme Court of the United States, and be settled there. Holding the views I do, I am constrained to dissent from the opinion of the majority.
Judgment reversed.