Commonwealth v. Hoover , 25 Pa. Super. 133 ( 1904 )

Opinion by

Smith, J.,

The prosecutor in this case, having been convicted on an information made by the defendant, of violating the act of April 22, 1794, commonly known as the “ Sunday Law,” by selling a cigar to the defendant, now charges the latter with having violated the same act by purchasing the cigar.

The act of 1794 forbids the performance of “any worldly employment or business whatsoever on the Lord’s Day, commonly called Sunday, works of necessity and charity only excepted.” Since the purchase of a cigar cannot be deemed a work of necessity or charity, the primary question here is whether it subjects the purchaser to the statutory penalty.

While a sale on Sunday, not a work of necessity or charity, is a violation of the act, it by no means follows that the purchaser is involved in this violation. A guide to the legislative view on this point may be found in the general course of legislation in the exercise of the police power. The state has forbidden various things, as against public policy. Among, these are the sale of lottery tickets, of certain drugs and nostrums, of obscene literature, of academic degrees and diplomas, of liquor on Sunday and on election day, and to minors, persons of known intemperate habits, and persons intoxicated, and at any time, or to any person, except by persons duly licensed; it has also prohibited the maintenance of gambling houses or devices, fortune-telling, horse-racing, book-making, etc. But in this legislation the penalty has been aimed at the person making the sale or furnishing the forbidden appliances or means; the person taking part in the transaction only as a purchaser or patron has not been regarded as particeps criminis, though the violation of law has been due largely to demand on his part. There are, indeed, instances in which his act, when in the nature of a public nuisance, or tending peculiarly to the degradation of morals, has been made a substantive offense. Thus, section 3 of the act of 1705-6 imposes a penalty on persons “ found drinking or tippling in ale houses, taverns, or other public house or place ” on Sunday, as well as on the keepers of such places “ who countenance or tolerate any such practices ; ” and the act of June 10, 1885, imposes a penalty not only on the keepers of opium joints, but on persons found therein smoking or otherwise using opium. But such apparent exceptions rest on grounds essentially different from those on which the other statutory prohibitions mentioned are based.

Applying to the act of 1794 the rule as to legislative intent in the imposition of penalties, clearly deducible from the general course of legislation in the exercise of the police power, we must construe that act as intending the accomplishment of its purpose, as in the great body of statutory prohibitions, by imposing the penalty on the person who supplies another contrary to its provisions, and not on the person whom he supplies. It follows, therefore, that the defendant in the case before us is not subject to the penalty.

A consideration of the question from another point of view will lead to the same conclusion as to the liability of the defendant. Among the laws for the government of the province, agreed on in England, May 5, 1682, was a provision that on “ every first day of the week, called the Lord’s day, people shall abstain from their common daily labor.” The first provincial statute, passed December 7, 1682, provided that on this day “ people shall abstain from their usual and' common toil and labor; ” and this was re-enacted in the same language November 27, 1700. A more elaborate act on this subject was passed January 12, 1706-6, in which the corresponding provision was that “ all people shall abstain from toil and labor,” and that “ no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly business or work of their ordinary callings, works of necessity and charity only excepted.” The act of 1794 enlarged the prohibition to include “ any worldly employment or business whatsoever,” not of necessity or charity. The purpose, of these enactments was to enforce a cessation of the usual affairs of life, in labor and business, on Sunday, by punishing the person engaging therein. To determine the application of the penalty, under the act of 1794, it is necessary to define the nature of the offense, and ascertain what is implied in the words “ employment ” and “ business,” as used in that act. A person who sells is undoubtedly employed in business. But, whatever may be said of purchases for subsequent sale or use in the course of any calling, it has never before been suggested in a court of law, in this state, that a casual purchase, for consumption, like that shown in the present case, is an employment or business. There is no authority, legal or linguistic, for this view; and such expressions of judicial opinion as may be found are wholly inconsistent with it. In Bennett v. Brooks, 91 Mass. 118, it was said, in construing the Massachusetts statute forbidding “any manner of labor, business or woi'k” on Sunday, that the prohibition was not to be carried further than “ to restrain the exercise of all those occupations or employments which make up the common daily business of mankind,” and “ all business which might fairly be deemed an employment or calling carried on for purposes of gain or profit.” In Goddard v. Chaffee, 84 Mass. 895, it was said of “ business,” that it “ denotes the employment or occupation in which a person is engaged to procure a living.” In the common understanding of mankind, “ business,” “ occupation ” or “ employment,” is regarded as something engaged in with a view to compensation or profit; and this must be deemed the legislative view of “ worldly employment or business ” as used in the act of 1794. Assuredly, there can be no such view in a purchase of the character of that made by the defendant in this case. In making such a purchase, therefore, the purchaser cannot be held to have been engaged in the performance of any employment or business, within the meaning of the act of 1794. Hence he is not liable to the penalty imposed by that act.

The conclusion reached on these points is entirely consistent with the trend of judicial construction of the act of 1794, and makes it unnecessary to consider the other questions raised.

The animus of the prosecution in this case is obvious. The evident purpose is to discourage the enforcement of the act of 1794 by subjecting the prosecutor to the penalty for its violation. The growing tendency to disregard the observance of Sunday is much to be regretted, and it is this that should be discouraged. The courts cannot, through the strained and unwarranted construction contended for by the prosecutor here, countenance an attempt to nullify the statute by holding its penalty in terrorem over those who would give it effect. While the act remains on the statute book, it is the duty of the uourts to construe it in accordance with the legislative intent uniformly shown in the exercise of the police power, and in such a spirit as to facilitate instead of defeat its enforcement.

Judgment reversed.