CONCURRING Opinion.
Manning, J.I rest my concurrence on the grounds sot forth in State v. Bott, 31 Ann. 663, i. e. that the town-ordinance is a police regulation that the municipal authorities can make for the preservation of public order on a day when its inhabitants are idle from not pursuing their usual vocations, as they might have made Saturday the day of cessation of liquor-selling because on that day country towns are usually flooded by a class that are apt to become disorderly. The same prohibition is often made for election-day and is justified for the same reason, viz that it is a police regulation in the interest of the prablic peace.
Still, there is force in the argument that the obvious reason whjr Sunday was selected as the day of prohibition is because the votaries of a particular religion attach a special sanctity to that day, and as that is the controlling motive of the selection, the prohibition is a regulation for the compulsory observance of a particular religion. Christians would have no difficulty or hesitancy in detecting the motive if the town authorities were Jews, and they had forbade the sale of liquor on Saturday and allowed it on Sunday.
To my mind there is no entirely satisfactory answer to that argument. It is always difficult and often impossible to explain or discover the distinction between a regulation made solely in virtue of the police *917power and for the preservation of public order alone, and one made for tbe observance of a particular day set apart by the followers of a particular religion for special religious purposes. Each case must therefore rest on its owu facts and circumstances, and these must clearly bring it within the scope of a police regulation or it ought not to be maintained. An oft-quoted writer on Constitutional law well says “ The laws against the desecration of the Christian Sabbath by labour and sports are not readily defensible by arguments the force of which all would admit. * * * The Jew who is forced to respect the first day of the week, when his conscience requires of him the observance of the seventh, may plausibly urge that the law discriminates against his religion, and by compelling him to keep a second sabbath in each week unjustly though indirectly punishes him for his religious belief.” Cooley’s Const. Lim. 476.
Whenever the common-law courts sustain regulations such as this on the ground that Christianity is iu a sense however qualified a part of the common-law, they can have no weight with us. The common-law never prevailed here and the Civil law countenances no such pretension. Even in England where that doctrine originated the Lord Chief Justice lately emphatically said; — “ it is no longer possible to affirm that Christianity is'a part of the law of the land. * * * There was a time when that was so in a sense in which it lias now ceased to be, a time when heretics and misbelievers were punishable for their opinions, and when the most orthodox species of non-conformity excluded a man from public office.” Reg. v. Ramsay and Foote. Eeported in London Times. This overrules with one fell swoop the English decisions of a century and discredits the American decisions that followed them.
This is not a matter of sentiment or of feeling. They who laid the foundations of our government knew well the immense and overshadowing importance of guarding against that particular danger, for no provision of our civil polity requires to be more jealously guarded than that American Magna Charta which forever dissociates religion from the State, and erects an insuperable barrier to the punishment of any man for his religion or for the waut of it.
Bermudez, C. J. concurs in these views.