Stollenwerck v. State

For the purposes necessary to a consideration of this appeal, the statute claimed to have been violated is as follows: "Any person who, being a merchant or shop-keeper, druggists excepted, keeps open store on Sunday," etc. It will be observed that under this statute no specific article of merchandise is either prohibited or permitted to be sold. The statute is directed against all merchants or shopkeepers except druggists, and makes it a violation of the law for them to keep open store on that day. But for the statute against it, any merchant might open up a store or shop on the Sabbath day, and proceed to sell and offer for sale his wares and merchandise. Thus, for good and sufficient reasons, the Legislature has seen fit to prohibit all merchants and shopkeepers, except druggists, from continuing their traffic on the Sabbath day. If it were necessary, we might surmise why the Legislature made an exception in favor of druggists, but no surmise is necessary or left open to us. The law requires the court to strictly construe penal statutes, and where the meaning is plain and unambiguous the court cannot do otherwise than to construe them as they are written, and the courts of this state have declared "the Sunday laws must have a reasonable interpretation." Reid's Case, 53 Ala. 402, 25 Am.Rep. 627. In Jebeles et al. v. State, 131 Ala. 43, 31 So. 377, Mr. Chief Justice McClellan has clearly defined the meaning of "keeping open store"; what that term means and what it involves. Under this statute, druggists are excepted from the operation of the law against keeping open store on Sunday, and therefore where a person is a druggist, and so long as he remains a druggist within the meaning of the law, he cannot be convicted for keeping open store on Sunday. The important question then is, Is the defendant, under the agreed statement of facts in this case, a druggist? The adjudicated cases in this state shed little or no light on this question, unless it may be said that the opinion In the case of Dixon v. State,76 Ala. 89, is persuasive of the idea that the sale on Sunday is limited to that of drugs. In the Dixon Case, the exception was not involved, and in several, if not all, of the cases construing this statute, preceding the Dixon Case, the trials were had on charges excepting druggists. Desiring to prevent the desecration of the Sabbath by prohibiting certain things to be done on that day, yet recognizing the frequent necessity of mankind for drugs, druggists are permitted to exhibit for sale and to sell their merchandise. In construing the statutory exceptions, the ordinary signification of the words used controls. 37 Cyc. 548; Commonwealth v. Marzynski, 149 Mass. 68, 21 N.E. 228. In R. C. L. and Words and Phrases, it is said: "The term, 'druggist,' properly means one whose occupation is to buy and sell drugs without compounding or preparation." 9 R. C. L. 697; State v. Holmes, 28 La. Ann. 765, 26 Am. Rep. 110; Webster's Dictionary. The calling of a druggist is not a profession but an occupation. As long as a man confines himself to the occupation or business of a druggist, he is protected by the exception, but when he extends his stock in trade beyond the buying and selling of drugs, he is in another occupation not contemplated by the exception. In construing an exception in a statute excepting bakers, the Supreme Court of Massachusetts held "the sales authorized to apply only to breads and viands baked by him" (Commonwealth v. Crowley, 145 Mass. 430, 14 N.E. 459), so that it is the occupation and not the individual that is excepted, and the individual is protected only so long as he stays within the confines of the occupation as defined by law. Many have more than one occupation, as in this case, a "druggist" and a "dealer in druggist sundries." In either or both he is a merchant. In one he is protected by the exception, in the other he is not. He cannot, by uniting both lines in the same building, place both under the protection of the exception. Penniston v. Newman, 117 Ga. 700, 45 S.E. 65. It could with more reason be insisted that the enlargement of the bounds removed the protection of the exception from both. The foregoing conclusions are emphasized when we consider the origin of the Christian Sabbath as a holy day, and the consistent enactment of statutes by all Christian states to preserve it as a day of rest and one sacred to the Lord. And while we do not observe the same day of the week as that consecrated and set apart under the law of Moses, the idea of consecrating one day in seven is of divine origin, and while the carrying on of ordinary business on that day is not a violation of the common law, from the earliest period in the history of the law of England statutes have been in force to preserve the first day of the week as a holy day. Alabama is in line with all the rest of them, it being declared by the decisions of this state that the object of the Sunday laws is to prevent *Page 216 vice and immorality. Rainey v. Capps, 22 Ala. 288. Lord Blackstone, in writing of the Sabbath, said: "Profanation of the Lord's day is a ninth offense against God and religion punished by the municipal law of England. For, besides the notorious indecency and scandal of permitting any secular business to be transacted on that day, in a country professing Christianity, and the corruption of morals which usually follows is profanation, the keeping one day in seven holy, as a time of relaxation and refreshment, as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness; it imprints on the minds of people that sense of their duty to God so necessary to make them good citizens, but which, yet, would be worn out and defaced by an unremitting continuance of labor, without any stated time of recalling them to the worship of their Maker." See Ringgold, Law of Sunday, page 40. And Mr. Ringgold, in his work, supra, says: "And there is no lack of American authorities which recognize the logical consistency of the English view, and adopt the same reasoning." And again: "The object of the English statute was to promote the due observance of the Lord's day, by putting a stop to unnecessary worldly labor and business, at least among the persons and classes enumerated, and others like them, whether such business and labor was open and public, or in private; and this, not only for the sake of public decency and order, but to withdraw a man's thoughts from secular concerns, and turn them to the duties of religion." In line with these and with the common weight of authority both in this country and in England, we hold that rest and the public worship of Almighty God were the primary objects of the institution of the Sabbath, both as a divine and as a civil appointment. Ringgold, Law of Sunday, p. 46; Johnston's Case,22 Pa. 102. We have carefully considered the cases cited in appellant's brief to the effect that statutes which are plain and unambiguous on their faces are not to be construed, but are to be given effect in the language and according to the language used by the Legislature in bringing them into existence. This court does not question that rule, but in view of all the authorities coming under our observation touching the proper construction of the word "druggist," as it appears in this statute, we are of the opinion that these cases have no application here. The foregoing being our views, it follows that the views expressed in the original opinion were in error and therefore the original opinion in this case is withdrawn, the rehearing is granted, and the judgment is affirmed. Affirmed.