Friedeborn v. Commonwealth

Mr. Justice Gordon delivered the opinion of the court, There are but few of our statutes, which, in principle, are of more importance than the Act of the 22d of April, 1794, commonly called the “ Sunday Act,” in that it recognizes the first day of the week as a Sabbath of rest for the well disposed and religious people of our Commonwealth, and we can entertain but little respect for those who wilfully and persistently violate its prescriptions. Against all such its penalty should be enforced until they are taught that a respect for its provisions may, at least, be profitable from a pecuniary point of view. The fine imposed is but light; far too light, indeed, to prevent the violation of the statute by our great corporations and heavy capitalists, who regard their own profit rather than the public -welfare; but the correction of this defect in the law is not within our province ; we can but interpret the Act as we find it. In the cáse in hand it appears, from the record before us, that the plaintiff in error, Andrew Friedeborn, was, on the 7th of October, 1884, arrested and brought before John A. Derr, a justice of the peace for the county of Montgomery, and convicted of six several violations of the Sunday law on one and the same day, so that the fines altogether amounted to $24. The charge was of selling to six different persons small quantities of cigars, tobacco, cider, spruce beer and [245] candy, and iu each case the fine of $‘4 was imposed. On certiorari to the Common Pleas these convictions were affirmed. In this we think there was error. The Act of 1794 imposes but one penalty; a fine of $4 for the violation of the Sabbath day, and as in law, unless otherwise provided by the legislature, there are no fractions of a day, it is clear that by the same person there can be but one such violation, and consequently but one fine. Moreover, the offence consists iu “performing any worldly employment or business whatsoever on the Lord’s day, commonly called Sunday,” so that there is no proscription of any one or more distinct act or acts, but of “any employment or business,” whether the act or acts which constitute such employment are one or many. Friedeborn’s business was that of a vender of tobacco, cigars, &c., and he was not less a vender though on Sunday, the 5th of October, he sold but one cigar, nor would he have been more so had he on that day sold all the goods of which he was possessed. In either case he was engaged in his worldly employment, and that employment could not be changed, or its character altered, by the number of articles sold or the time required for its performance. Nor is the construction which we thus put upon our statute a new one, for we have a ruling on the British statute, which, so far as the offence charged in the present case is concerned, is precisely similar to our own. The case to which we refer is that of Crepps v. Durden, 2 Cowp., 640. The action was trespass brought against a justice of the peace for issuing four warrants for the collection of four several fines imposed on the plaintiff on conviction under the staff ute of 29 Car. 2, ch. 7, for selling small hot loaves of bread on the Lord’s day, commonly called Sunday. These four several acts of selling the loaves or rolls were done on the same Sunday, and it was contended that under the Act there could be but one conviction ; in other words that the four sales constituted but one offence, and so it was held iu the King’s Bench. Lord Mansfield, delivering the opinion of the court, said : “ The first question is, whether any objection can be made to the legality of the convictions before they were quashed ? In order to see whether it can, we will state the objection ; it is this: that here are three convictions of a baker for exercising his trade on one and the same day, he having been before convicted for exercising his ordinary calling on that identical day. If the Act of Parliament gives authority to levy but one penalty', there is an end of the question, for there is no penalty at common law. On the construction of the Act of Parliament the offence is, ‘ exercising his ordinary trade on the Lord’s day;’ and without any fractions of a day, hours or minutes. It is but one entire offence whether longer or shorter in point [246] of duration; so whether it consist of one or many particular acts. The penalty incurred by this offence is five shillings. .....There can be but one entire offence on one and the same day.” It will be seen that the case in hand and that cited are so nearly alike that were it a decision of this court it must be regarded as a final determination of the contention; as it is, we regard the reasoning as so conclusive that we do not hesitate to adopt it. The learned judge of the Court below seems to have fallen into the error found, in the case of Duncan v. The Commonwealth (Common Pleas of Dauphin County), 2 Pear., 213, that is to say, that the Act of 1794 and that of 29 Car. 2, are in language essential^ different. This is a mistake ; at least so far as a case like that in hand is concerned, as will readily be discovered bjr a comparison of the two Acts. The first reads : “ No tradesman, artificer or any other person whatsoever shall do or exercise any worldly labor, business, or work of their ordinary calling upon the Lord’s day.” The other : “ If any person shall do or perform any worldly business whatsoever on the Lord’s day, commonly called Sunday.” Now, as the plaintiff in error was in fact convicted of exercising worldly business in his ordinary calling, on the Lord’s day, it is clear that the offence would fall as well within the Act of 29 Car. 2, as within that of 1794. It is true, the latter Act embraces much more than the former, for whilst the one prohibits only such work or labor as is done “in the work of their ordinary calling,” the other includes “ any worldly employment or business whatsoever,” and this is the material difference between the two statutes, if we except the prohibitions of amusements and games : Kepner v. Keefer, 6 Watts, 231; Johnson v. The Commonwealth, 10 Harris, 102. The mistake made in the Court below was in holding that the Act of 1794 made every act done in any worldly employment or business a distinct and separate offence ; but it does nothing of the kind, for the offence, as we have shown, and is apparent from the face of the statute, consists in the exercise of an employment or business, and either may include one or one thousand separate acts. So, in the case cited (2 Pear.), it has of necessity to be admitted that a mechanic in his shop, or a farmer on his farm, may work all of a Sunday, and yet be guiffy of but a single breach of the statute. The farmer may plough, reap, or sow, the mechanic hammer, plane, or saw, through the entire day, and he is guilty of but one infraction of the law, but the merchant, though like them engaged in a single trade or calling, may be guilty of several such infractions, not because he sells several tilings to one person, but because he sells those several things to several persons. We [247] cannot adopt an interpretation of this kind, not because the law, were it as stated, would not be just and wholesome, but because such an interpretation is not admissible as the law now stands. The judgment of the Court is now reversed as to all the fines against the plaintiff in error except the first single fine of $4.