Melvin v. Easley

PEARSON, C. J.

MANLY, J. Concurring: The defense raises two points:First, whether the transaction, as to either of the parties, was unlawful under the provisions of Rev. Stat., ch. 118, and,secondly, whether the plaintiff's complicity was such as to deprive him of redress upon thePage 280contract, in case it was unlawful for the other. My opinion is adverse to the defense upon the first of these points.

The range of operation to be given to the statute, under the restraining influence of the Bill of Rights, embraces only the public conduct of the citizen, and cannot be intended, or so construed, as to apply to his private conduct.

This is inferable from several considerations, but mainly, as I (362) think, from the uniform habits and customs of our people, putting, practically, this construction upon it, and from the omission on the part of the Legislature to exempt from the operation of the law certain acts (neither of necessity nor charity), which we suppose it certainly would have done if it had intended the law to apply generally to the class of cases to which they belong — such as cooking in private families and in inns, and victualing houses; the work of a ferryboat, of coaches upon rail and other roads, and boats upon waters, in their ordinary calling. An absolute and entire suspension of all secular employment, which would be implied in the prevention of these, and in a strict construction of our statute, has never been supposed to be compulsory in any part of our country, except, perhaps, at one time in New England, by force of their peculiar laws. In North Carolina it would be clearly contrary to the fundamental law to attempt an enforcement of that part of our statute which enjoins upon all persons a careful application of themselves, on the Lord's day, to the duties of religion and piety. To enforce such an injunction it must first be settled by the State what specific duties are embraced in our obligations to God, and all men be then called upon to conform to the State ritual. This is forbidden by our Bill of Rights (sec. 19), and would be violative of religious freedom, without which society could not be held together by the ties which at present bind it.

So we are of opinion it is against the spirit of our legislation, and, therefore, not in the contemplation of the Assembly, to restrain the private conduct of the citizen where there is no offense against public order and decency, and no disturbance of others in their proper observance of the day. At common law the religious observance of Sunday has never been considered a duty of perfect obligation. This is true even in England. Restraints, therefore, upon the conduct of the citizen on that day is matter dependent upon express legislative provision, and it would be against rule to extend these beyond the plainly (363) expressed will of the Legislature.

I entertain no doubt the Legislature of the State has the power, under the Constitution, to prohibit work on Sunday, as a matter pertaining to the civil well-being of the community, and I am also well convinced there is nothing more essential to the physical, social, andPage 281religious elevation of a people than the institution of a weekly day of rest — a day set apart especially for recreation and for the worship of Almighty God. But this is not the point. It is, how far the Legislature has thought proper, actually, to take this matter in hand, in aid of the teachings of religion, and to enforce, by law, the observance of Sunday. The leading idea in the original framework of our Government, and in the subsequent legislative and executive action under it, has been to leave men as free as is consistent with safety — to interfere no more with social liberty, by law, than is needful to secure order and the rights of each and every one. Outside of this, it is left to the individual citizen to govern himself, guided by the religious and moral teachings to which he is accustomed to resort, and hence the spirit of individual responsibility, of independence and self-reliance, which is so remarkably characteristic of the American people, and which has given such force and effect to our institutions. Of all the classes of human rights, those which belong to conscience, in the worship of God, are held the most sacred. They cannot be touched without arousing public attention and censure, and it is the last subject on which the State would resort to legislation not actually needed for political safety and repose.

In view of these things, especially of the practical construction put upon the law by the usage of our people from the beginning (which is high evidence of what was meant), connected with the generality of the words used, I am of the opinion already stated, that it was not intended by our Legislature to act by the lawuponthe private conduct of the citizen.

The transaction out of which this controversy has arisen was, we suppose (nothing to the contrary being stated), private — between the parties, in the presence of a single individual, the witness, (364) and was not, therefore, within the purview of the statute.

The decisions in the other States of our country which have been cited in the discussion may be supported upon the particular phraseology of their respective statutes, and the sense in which they have been accepted and practiced by our people, and from the general course of legislation in those States. I refer toRobeson v. French, 12 Metc., 24;Lyon v. Strong,6 Vt. 214;Northup v. Foot, 14 Wind., 249;Specht v. Com., 8 Barr, 313;Bloom v. Richards,22 Ohio, 387;Charleston v. Benjamin, 2 Strob. (S. c.), 508. To the point oflegislative power, some of the cases which I have examined (where the States have similar constitutional provisions to our own) are germane to the case before us, but upon the construction of our statute they are not believed to be so. As my difficulty is not upon the former but upon the latter question, I do not derive any considerable aid from them.Page 282

The English cases cited are in exposition of 29 Charles II., ch. 7, and establishes the conclusion (after doubts) that the statute was intended to operate upon the private conduct of the subject. The force of this conclusion, in its bearing upon our case, is impaired by important differences between the statutes in the two cases, and by important differences in the constitutional power of the two governments, affecting the construction. The cases referred to are"Bloxome v. Williams,10 E. C. L., 60;Fennell v. Ridler, ib., 261;Smith v. Sparrow, 13ib., 351;Williams v. Paul, 19ib., 192;Scarfe v. Morgan, 4 Mees. Welsby (Exch.), 270.

Two things are specially noticeable upon an examination of these cases:First, the doubts of the English judges whether the statute should have the more extended operation, and,second, their reluctance to construe it so as to make void private contracts, especially those that had been partly executed. It seems, however, that these difficulties were finally overcome by force of the special provisions of the statute, and by force, as I suppose, of the powers and general course of legislation (365) in the country. It will be perceived, by reference to the statute at large (29 Charles II.), that it has many provisions giving it an operation manifestly upon the personal and private conduct of the subject, which our extract from it has not. And when this is considered, in connection with the spirit of their laws and the religious establishment as part of that law, conclusions upon the respective statutes may be in opposite directions without any violation of principle in either. In England there is a Christian ritual established by law, with parliamentary provisions for inculcating it privately and publicly, and a consequent right in the Government to decide matters of faith and matters pertaining to established rites. In our State there is nothing of the sort, with the single exception that officers of the State must be Christians. There is no privilege or disability on account of religion. The State confesses its incompetency to judge in spiritual matters between men or between man and his Maker, and leaves in all a perfect religious liberty to worship God as conscience dictates, or not to worship Him at all, if they can so content themselves. Both peoples are equally Christian, and governed in their affairs, national and personal, alike by the principles of Christian morality, but the one, through its Government, deems it proper to cooperate with the ministers of religion in fostering and enforcing; the other adjures all power to interfere, and leaves spiritual matters exclusively in the hands of the teachers of religion. Hence, the English cases are not regarded as entitled to the weight of authority here. Their judges are interpreting a different statute, in many important particulars, from that which we are called upon to expound. Their Constitution and parliamentary powers andPage 283usages are different, and in the light of such differences the same minds would probably come to different conclusions.

The defense is a novelty in North Carolina, and it has the singular demerit of being unconscientious and at the same time wearing a garb of Christian morality. I do not think it will do as the result of the construction of the statute as it now stands. If it be the purpose of the Legislature by that statute to prohibit acts of the class (366) now before us, it is due to the great importance of the principle involved, and to the fact that it is contrary to the general tenor of the legislation of the State, to express it unequivocally, and not to leave it to a doubtful construction. Should the public will desire further provision of law upon the subject, it may be speedily put right in the next General Assembly by proper statutory enactments.

The view which is thus taken of the first point makes it unnecessary for me to express an opinion as to the other, about which I entertain some doubts. The anomaly of the case is that the act is not prohibited alike to both parties. For one, it is not lawful; for the other, it is, unless he be effected by knowingly dealing with the first. It is a matter of doubt whether mere knowledge on the part of the purchaser puts himin paridelictoand makes him amenable for the violation of the statute. Upon this point I decline expressing an opinion, but being of opinion with the plaintiff upon the first point, I think the judgment below should be affirmed.

BATTLE, J., dissenting: This is an action of trespass on the case, in which the plaintiff declares in two counts: first, for a deceit, and, secondly, for a false warranty of soundness on the sale of a horse by the defendant to the plaintiff. On the trial there was testimony tending to show that the sale was made on a Sunday; that the defendant was a horse-dealer, and that the plaintiff knew it. The defendant's counsel prayed the court to instruct the jury that "if they should find that the ordinary calling of Easley was that of a horse trader, and the plaintiff knew it, and the horse was sold on a Sunday, the plaintiff could not recover." His Honor refused to give the instruction, and there was a verdict for the plaintiff. The bill of exceptions does not state whether the sale was made in a town or in the country, in public or in private, in the presence of many persons or of few; so that the naked question is presented, whether the contract, assuming it to have been made on a Sunday, was by the law of this State void — as to either or both of the parties to it. (367)

In the argument of this question it was admitted by the counsel for the defendant that the contract was good at the common law, but he contended that it was in violation of section 1, ch. 118, Revised Statutes, and was, therefore, void as to both parties, so that neither couldPage 284maintain any action upon it. The section and chapter of the act referred to (which was in force when the contract was made) declares, "That all and every person and persons whatsoever shall, on the Lord's day, commonly called Sunday, carefully apply themselves to the duties of religion and piety, and that no tradesman, artificer, planter, laborer, or other person whatsoever, shall, upon the land or water, do or exercise any labor, business, or work of their ordinary callings, etc.," "on the Lord's day aforesaid, or any part thereof, upon pain that every person so offending, being of the age of 14 years and upwards, shall forfeit and pay the sum of $1." This enactment in the Revised Statutes was taken from the act of 1741 (Rev. Code of 1820, ch. 30, sec. 3), and is in very nearly the same words as the statute, 29 Charles II., ch. 7, sec. 1.

Upon the general principle, which has been repeatedly recognized by the courts, both of England and this State, that a contract made in contravention of the law, whethermalum in seormalum prohibitum, cannot be sustained, it has been settled in the former country that a contract of sale entered into on the Lord's day, by any person in the exercise of his ordinary calling, is void. Thus inFennell v. Ridler, 5 Barn. Cres., 406 (11 E. C. L., 261), it was decided that a horse-dealer who purchased a horse in the course of his ordinary business on a Sunday could not recover on a warranty contained in the contract of sale. So inSmith v. Sparrow, 4 Bing., (13 E. C. L., 351), it was held that an action would not lie on a contract made on a Sunday, although it was made by an agent, and although the objection was taken by the party at whose request the contract was entered into. The case ofBloxome v. Williams, 3 Barn. Cres., 232 (10 E. C. L., 60), (368) lays down the same doctrine, butBailey, J., who delivered the opinion of the Court, said that the party who was not acting in his ordinary calling, and was ignorant of the fact that the other party was so acting, might recover from such a contract. He intimates strongly, however, that if the plaintiff had known that the defendant was acting in his ordinary calling he would have been regarded as having aided in the violation of the law, and, for that reason, could not have sued on the contract.

It has been said in argument here that the latter proposition of the learned judge was a meredictum, not necessary to the decision of the cause, and, therefore, not fully considered by him. I cannot so regard it, because the fact that the plaintiff was ignorant of the other party's calling was stated as an exception to the general rule, and of course admitted the rule.

In England the doctrine is confined to persons having an ordinary calling, and acting in the course of it,Drury v. Defontaine, 1 Taun., 131;Rex v. Whitemarsh, 7 Barn. Cres., 596;Sandiman v. Breach,Page 285ib., 100. These cases all recognize the general rule, and I think that it may be considered well established in England that where a contract is entered into by any person in the exercise of his ordinary business on a Sunday, he cannot recover upon it, nor can the other party do so, if he knew of the fact that the first was so acting when the contract was made. From a note to the American edition of Smith on Contracts, 264 (marginal page 181), it appears that provisions more or less similar to those of statute of Charles II. exist in nearly all the States in the Union, and that contracts in contravention of them are void. Thus, in Massachusetts, no action can be maintained for a deceit in the exchange of horses on a Sunday.Robeson v. French, Metc., 24. Nor in Vermont for a breach of warranty on such a sale.Lyon v. Strong,6 Vt. 214. InNorthup v. Foot, 14 Wend., 249, which was an action upon a contract entered into on Sunday in Connecticut, the Court held that it was void by the law of that State, and that neither (369) an action on the case, for a deceit, nor in assumpsit, could be maintained upon it. That was the sale of a horse, and the suit was brought by the vendee, which makes it direct authority in favor of my view of the present case.

If I understood the counsel for the plaintiff, he did not deny that if the present case had occurred in England his client could not have sustained the action. But he insists that the construction of our act must be different from that put on the English statute, because in England there is an established church, and their statute was intended to compel a better observance of Sunday by directing "that every person shall, on every Lord's day, apply himself to the observation of the same, by exercising himself in the duties of piety and true religion," as was declared byBailey, J., in the above mentioned case ofFennell v. Ridler. In this State, the counsel said, we have no church establishment, and our Bill of Rights declares "that all men have an unalienable right to worship Almighty God according to the dictates of their own consciences." (Bill of Rights, sec. 19.) He thence inferred that our act must be so construed as not to enjoin upon any person the observance of Sunday as a religious duty, but only a political regulation, and that it embraces such acts only as offend public decency.

I admit that we have not any church establishment, and that the constitutions, both of this State and of the United States, forbid that there ever should be; but yet it cannot be denied that ours is a Christian country, and that the Constitution of North Carolina recognizes the Christian religion as a part of our system of government. Without looking to other parts of it, the famous 32d section of the Constitution expressly declares "That no person who shall deny the being of a God, or the truth of the Christian religion, or the divine authority of thePage 286Old or New Testament, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil (370) department within this State" (see Amendments to the Constitution, Art. IV, sec. 2). Our governors and magistrates, then, must be Christians, and it seems to me to be a necessary consequence that our Government is a Christian Government; and so it was undoubtedly considered to be by all the great men who, in the convention of 1835, took part in the debate on the proposed abrogation of section 32 just referred to. (See Debates of the Convention of 1835.) It is well known that the Christian Sabbath, sometimes called the Lord's day, but more commonly "Sunday," is a Christian institution, and I cannot perceive any good reason why our Legislature may not direct it to be observed by any person and in any manner which their wisdom may suggest for the happiness of the people and the welfare of the State, saving and reserving always to every person the right to worship God according to the dictates of his own conscience. The Bill of Rights seems to recognize the duty of all persons to worship Almighty God in some manner, and only leaves the manner to be determined by their own consciences. How the compelling them to abstain from their ordinary secular business on Sunday (the day usually set apart in all Christian countries for public worship and private devotion) can interfere with their rights of conscience is what I cannot well comprehend.Ruffin, C. J., did not seem to think so, when he gave the reasons of the Court for the decision inS. v. Williams,26 N.C. 400. It was there held that a master was not indictable, at common law, for compelling his slaves to do the ordinary work of the farm on Sunday. But it was strongly intimated that he might have been warranted for the penalty given by the act of Assembly upon which I am commenting. Speaking on the propriety and political necessity of keeping one day in the week for the purposes of "public worship, relaxation and refreshment," the learned Chief Justice says that "The institution, wherever it has existed, has proved to be a great good — promoting private virtue and happiness among all classes, and the public morals and prosperity. It is, therefore, fit that every commonwealth, and especially one in which Christianity is generally professed, should set apart, by (371) law, a day for those purposes, andenforceits due observance by such sanctions as may seem adequate. By a statute in this State the profanation of Sunday by working in a person's ordinary calling is punishable by pecuniary fine, recoverable by a summary proceeding before a justice of the peace (Rev. Stat., ch. 119, sec. 1). As that statute does not make the offense indictable, it is not punishable in that mode, unless it be so at the common law." In another part of the opinionPage 287he thus expresses himself in relation to the Christian religion: "In this State, however, although recognized as an existing and as the prevalent religion, it is not, and cannot be, established by law in any form, nor special duties of worship, or of worship at particular places or periods. Therefore, however clearly the profanation of Sunday might be against the Christian religion, it is not, and could not here be made, merely as a breach of religious duty, an offense; and much less can it be held an offense at common law. The Legislature, deeming it, as it does many other violations of Christian duty, detrimental to the State, may prohibit, and then it will be punishable to the extent and in the manner pointed out by the Legislature." He concludes his able opinion by intimating that the Legislature might cause the observance of Sunday to be enforced by stronger measures than had been prescribed in the statute before spoken of. He says: "But that is with the Legislature. If they think it needful, higher penalties may be laid, or the profanation of Sunday may be prohibited in general terms, and thereby it will become a misdemeanor and indictable." In the whole of this opinion it will be seen thatChief Justice Ruffindid not once question the validity of the statute nor intimate that it must be construed differently, here, from what he knew was the settled construction of the statute of 29 Charles II. in England. It seems to me that the conclusion is irresistible in that the defendant in the present case might have been warranted for the penalty incurred by selling his horse, in the ordinary course of his business, on Sunday. If so, the act was unlawful and the contract of sale void.Sharp v. Farmer,20 N.C. 255;Ramsey v. Woodward,48 N.C. 508;Ingram v. Ingram,49 N.C. 188;Powell v. (372)Inman, ante, 28. The plaintiff wasin pari delicto, because, with full knowledge that the defendant was a horse trader, he concurred in the violation of the law, showing his consciousness that he was doing wrong by putting a false date to the sale-note, dating it on Monday instead of Sunday, the day on which it was in fact given. In the conclusion to which I have come upon the constitutional question involved in this case, I am glad to find myself sustained by a case decided in Pennsylvania. InSpecht v. Commonwealth, 8 Barr, 313, it washeld(affirming the previous decision ofCommonwealth v. Wolf, 3 Ser. Rawle), that the Pennsylvania Lord's day act was not at variance with the provision in the State Constitution declaring the right of freedom of conscience in religious matters; and a conviction, under the act, of one of the sect called Seventhday Baptists was therefore affirmed, the decision being based upon the ground of a day of rest being necessary to the welfare of society, and that the mere prohibition of secular occupation did not interfere with the rights of conscience. (See the case referred to in a note to p. 264, Am. ed. Smith on Contracts, m., p. 181.) SimilarPage 288decisions have been made in Ohio and South Carolina, upon similar statutes, on the same grounds. (Bloom v. Richards,22 Ohio, 387;Charleston v.Benjamin, 2 Strob., 508; Sedg. on Stat. and Com. Law, 85, in note.) I think the judgment ought to be reversed, and a new trial granted.

PER CURIAM. No error.Cited: McRae v. R. R.,58 N.C. 397;Covington v. Threadgill,88 N.C. 189;Rodman v. Robinson,134 N.C. 507;McNeill v. R. R.,135 N.C. 684;S. v. Medlin,170 N.C. 684;Auto Co. v. Rudd,176 N.C. 500.

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