On Rehearing.
The Court has been charged with misunderstanding and misapplying the law, and so, with having inflicted disastrous damage on the city of New Orleans. It has been pressed to recant its opinion and decree, and decide that a “public market ” is a “public market.”
The Court did not misconceive the law. It would not suppose in the Legislature the design to make odious and unconstitutional discriminations between citizens belonging to the same class. It could not impute to the General Assembly the intention to allow to be done, under the roof, or within the limits of a public market, that which it absolutely prohibits, under pains and penalties, one line beyond that roof or those limits. It could not conceive that it was the legislative will to discriminate between the public markets in Nexo Orleans and other markets at different places in the State.
The Court had no concern with what constitutes a public market. It has none now. Tt had to decide, under the demurrer and the replication, whether the defendant was or not amenable to the accusation against him.
It concluded that the defendant was keeping on a Sunday, within the market, that which he could not keep, and was bound to close oul of it--a place of public business, at which he dealt in grocery articles; in other words, a grocery stand or stall; and that the fact constituted the offense and justified the infliction of the penalty.
There is some pretense that the defendant is not required to pay a license for keeping a grocery stand in the public market. Whether the license be actually levied by State or city, in the sense of requiring payment of it, is immaterial. The law' imposes, or may impose the license, and the statute under consideration requires the closing on Sundays of all places of public business, even plantation stores, which are, or may be licensed, under the law of the State, or under a parochial or municipal ordinance.
If, then, the Legislature has required the closing on Sundays of all places of public business, which are or may be licensed, and if such places of business within public markets are, or may be licensed, the conclusion is irresistible, that the defendant is not shielded from the operation of the prohibitory and penal provisions of the law', and his case falls w'ithin their purview' and ban.
*543When, therefore, the Legislature removed or exempted public markets from the operation of the law, keeping in view the equality of rights of the citizens -they meant such public markets, within the limits of which goods were not sold, or places kept open, which are forbidden from being sold or are required to be closed, beyond their boundaries.
If the ruling has operated harshly, as is represented, it is a consequence which must have entered into the legislative consideration before the Legislature solemnly expressed their behest, and which this Court is powerless to avert.
If the “ Sunday law ” be harsh but constitutional, it must he enforced. Dura lex, sed lex.
This Court has deliberately held that the ‘'Sunday law” violated no constitutional prohibition on the power of the General Assembly, and is obligatory. The courts have to enforce its commands.
This Court cannot be asked to blow hot and cold in the same breath, and it cannot do so.
It is, therefore, ordered that our previous decree herein remain undisturbed.
Fenner, J., dissents.