Per Curiam.
Upon the authority of Norris vs. Hensley, 27 Cal., 439. the judgment is affirmed. [Hilliard vs. Pachee. Sup. Ct. of Cal. Sept., 1878.]
[234]*234JVOTJES OF 'lUSCJBNT 'DJSCISJOJVS 7/V S UF'JUUJU & C0V3ÍT OF FFF.FSTL ’Ká FIA.
In the absence of fraud the maker of an accommodation note cannot set up want of consideration as a defence agaiust a holder, witli.notice to whom it has been pledged as collateral security for an antecedent debt by the payee, for whose accommodation, it was made.
Appleton vs. Donaldson, 3 B. 381, and Lord vs. The Ocean Bank, 8 II. 384, followed. Royer vs. The Bank, 2 Nor. 249, distinguished.— Twining vs. Hunt.
The Act of April 11, 1862 (P. L. 623), prescribing that school teachers can be selected only by a vote of the school board is to be strictly followed, and a contract made by the President and Secretary of the Board cannot be enforced.
Per GordoN, J.,
“No contract for the employment of teachers should extend beyond the current school year.”— School District Denison Township vs. Padden.
In an action for use and occupation, a contract express or implied must be proved.
A. occupied the dock adjoining B.’s wharf on the river Delaware with lighters unloading a ship at the next wharf, so that no vessel could use B.’s wharf without the removal of the lighters. A. refused to pay dockage to B. There was no evidence that any vessel had been prevented from coming to B.’s wharf on account of this occupation. In an action for assumpsit for use and occupation brought byB.
Held, that judgment of nonsuit was properly entered.— Easby vs. Patterson.
[235]*235
SUN DA Y LA WS; WHAT THEY MEAN,
BY A MEMBER OF THE BAR.
Sunday laws have had to bear some criticism and objection which they do not deserve, founded on the idea that they are designed to'compel people to be religious. This is an error. There is, indeed, some traditional ground for it. Some person who seems to have examined the law books extensively, says that every State in the Union except Louisiana has a Sunday law. The original and model of most of them is an English statute passed in 1676, while Charles II. was King. The language of that old law and the histories of its time indicate an idea that government might superintend the religious duties of individuals; that persons might be ordered by law to attend worship and maintain exercises and studies of piety at home. The ti. t-le of the law, was “an act for the better observance of the Lord’s dayand it commanded in so many words the people’s “ repairing to church” and “ exercising themselves in the duties of piety and true religion, publicly and privately.” And it is probably true that when the Colonies and the early States came to re-enact this law or to pass others like it, they did so in the view that the government might compel people to be Christians, or at least behave as such. That view harmonized well with what has been called the paternal theory of government. Hut it does not harmonize with the doctrine of popular government as developed in late years in this country; and (so far as Sunday laws are concerned) it is abandoned, unequivocally and completely.
There are, in the administration of civil law, many cordial recognitions of Christianity, as being in fact the ¡ire-vailing religion, and some adoption of religious forms and observances as congenial and germane to legal proceedings but any purpose of compelling or even inducing persons to observe Sunday as a day of pious obligation and observance is, at the present day, entirely disavowed. The general belief that Cod desires or approves Sabbath observance is tak[236]*236en into view as a fact rendering legal protections of tlie day proper, but it is not a doctrine of the law. Sunday is named for the rest-day because the masses of the people have for centuries observed it, more or less fully, and the government can more easily secure and protect a day already popularly designated than establish a new one; not because they undertake to enforce a divine command. Vo% populi, not Vox Dei, is the basis of the statute. Its purpose is to guarantee, impartially, that the masses shall enjoy a stated day during which there shall -not be needless demands of ordinary business, or attractions and temptations of exciting amusements, or interruption of noise and tumult, preventing or hindering those from worshipping who wish to worship, those from meditating or studying who wish to do so, those from resting who need repose. In every community there are some persons who desire these things. The Sunday law seeks to give a moderate opportunity to enjoy them.
Consider how varied the preferences are! Some would pursue trade and amass wealth unremittingly. Some would luxuriate in a constant round of shows, refreshment-saloons, processions, excursions, fourth of July fireworks, theatrical entertainments, avenue trots, sea bathing or akat-ing, hunting or fishing; would never grow weary (they think) of pleasure. Some would devote all their days to books aud learning. Some wish to withdraw to religious retreats for lives of meditation and prayer. There are the sick and the aged, to whom the activities of the young and well, seem always an irksome turmoil. There are a hundred intermediate types. Above all, there ai’e those who desire and those who need a stated break in the wearying journey of life; a day of the gates shut down that the pond may fill. All these tastes are considered, and the State strikes a balance and says: Six days shall be free for the pursuit of labor, business and pleasure; and the quiet people must bear with the excitement aud activity. One day shall be protected for the enjoyment of quiet and repose, and the active classes must submit to moderate restrictions. [237]*237To suppose that the typical American Sunday law of the present day embodies any ecclesiastical rule or any religious observance, is an entire mistake.
By way of proof and illustration, note what occurred in California. In 1858 the Legislature passed a Sunday law; and, within a very few days, a Jew who opened his cloth, ing store on Sunday was arrested. He complained to the court. The judges all agreed that the Legislature could not pass a law to compel religious observance of Sunday; and as two of them thought this law of 1858 was meant to do this, they said it was void, and set the clothes-dealer tree. Then there was practically no Sunday law for awhile. In 1861, the Legislature passed another law. A second shop-keeper was arrested and made the same complaint to the court. The judges agreed again that the Legislature could not prescribe r’eligious observances, but they said that the new law did not profess to do so, but only sought to protect the quiet of the da}” from disturbance; therefore it was valid, and the shop-keeper must pay his fine. And this was not because California, even twenty years ago, was especially lax. ■ Ho longer ago than 1877, a Seventh day believer prosecuted, in Massachusetts, for keeping open shop on the Lord’s day, argued that he had faithfully and conscientiously kept Saturday as a Sabbath, and ought to Ire allowed to trade on Sunday. The judges told him that he was mistaken in supposing the law intended to make people observe a day religiously. It is a civil regulation providing for a fixed period of rest in the business, the ordinary avocations and the amusements of the community.
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Per Curiam.
Upon the authority of Norris vs. Hensley, 27 Cal., 439. the judgment is affirmed. [Hilliard vs. Pachee. Sup. Ct. of Cal. Sept., 1878.]
[234]*234JVOTJES OF 'lUSCJBNT 'DJSCISJOJVS 7/V S UF'JUUJU & C0V3ÍT OF FFF.FSTL ’Ká FIA.
In the absence of fraud the maker of an accommodation note cannot set up want of consideration as a defence agaiust a holder, witli.notice to whom it has been pledged as collateral security for an antecedent debt by the payee, for whose accommodation, it was made.
Appleton vs. Donaldson, 3 B. 381, and Lord vs. The Ocean Bank, 8 II. 384, followed. Royer vs. The Bank, 2 Nor. 249, distinguished.— Twining vs. Hunt.
The Act of April 11, 1862 (P. L. 623), prescribing that school teachers can be selected only by a vote of the school board is to be strictly followed, and a contract made by the President and Secretary of the Board cannot be enforced.
Per GordoN, J.,
“No contract for the employment of teachers should extend beyond the current school year.”— School District Denison Township vs. Padden.
In an action for use and occupation, a contract express or implied must be proved.
A. occupied the dock adjoining B.’s wharf on the river Delaware with lighters unloading a ship at the next wharf, so that no vessel could use B.’s wharf without the removal of the lighters. A. refused to pay dockage to B. There was no evidence that any vessel had been prevented from coming to B.’s wharf on account of this occupation. In an action for assumpsit for use and occupation brought byB.
Held, that judgment of nonsuit was properly entered.— Easby vs. Patterson.
[235]*235
SUN DA Y LA WS; WHAT THEY MEAN,
BY A MEMBER OF THE BAR.
Sunday laws have had to bear some criticism and objection which they do not deserve, founded on the idea that they are designed to'compel people to be religious. This is an error. There is, indeed, some traditional ground for it. Some person who seems to have examined the law books extensively, says that every State in the Union except Louisiana has a Sunday law. The original and model of most of them is an English statute passed in 1676, while Charles II. was King. The language of that old law and the histories of its time indicate an idea that government might superintend the religious duties of individuals; that persons might be ordered by law to attend worship and maintain exercises and studies of piety at home. The ti. t-le of the law, was “an act for the better observance of the Lord’s dayand it commanded in so many words the people’s “ repairing to church” and “ exercising themselves in the duties of piety and true religion, publicly and privately.” And it is probably true that when the Colonies and the early States came to re-enact this law or to pass others like it, they did so in the view that the government might compel people to be Christians, or at least behave as such. That view harmonized well with what has been called the paternal theory of government. Hut it does not harmonize with the doctrine of popular government as developed in late years in this country; and (so far as Sunday laws are concerned) it is abandoned, unequivocally and completely.
There are, in the administration of civil law, many cordial recognitions of Christianity, as being in fact the ¡ire-vailing religion, and some adoption of religious forms and observances as congenial and germane to legal proceedings but any purpose of compelling or even inducing persons to observe Sunday as a day of pious obligation and observance is, at the present day, entirely disavowed. The general belief that Cod desires or approves Sabbath observance is tak[236]*236en into view as a fact rendering legal protections of tlie day proper, but it is not a doctrine of the law. Sunday is named for the rest-day because the masses of the people have for centuries observed it, more or less fully, and the government can more easily secure and protect a day already popularly designated than establish a new one; not because they undertake to enforce a divine command. Vo% populi, not Vox Dei, is the basis of the statute. Its purpose is to guarantee, impartially, that the masses shall enjoy a stated day during which there shall -not be needless demands of ordinary business, or attractions and temptations of exciting amusements, or interruption of noise and tumult, preventing or hindering those from worshipping who wish to worship, those from meditating or studying who wish to do so, those from resting who need repose. In every community there are some persons who desire these things. The Sunday law seeks to give a moderate opportunity to enjoy them.
Consider how varied the preferences are! Some would pursue trade and amass wealth unremittingly. Some would luxuriate in a constant round of shows, refreshment-saloons, processions, excursions, fourth of July fireworks, theatrical entertainments, avenue trots, sea bathing or akat-ing, hunting or fishing; would never grow weary (they think) of pleasure. Some would devote all their days to books aud learning. Some wish to withdraw to religious retreats for lives of meditation and prayer. There are the sick and the aged, to whom the activities of the young and well, seem always an irksome turmoil. There are a hundred intermediate types. Above all, there ai’e those who desire and those who need a stated break in the wearying journey of life; a day of the gates shut down that the pond may fill. All these tastes are considered, and the State strikes a balance and says: Six days shall be free for the pursuit of labor, business and pleasure; and the quiet people must bear with the excitement aud activity. One day shall be protected for the enjoyment of quiet and repose, and the active classes must submit to moderate restrictions. [237]*237To suppose that the typical American Sunday law of the present day embodies any ecclesiastical rule or any religious observance, is an entire mistake.
By way of proof and illustration, note what occurred in California. In 1858 the Legislature passed a Sunday law; and, within a very few days, a Jew who opened his cloth, ing store on Sunday was arrested. He complained to the court. The judges all agreed that the Legislature could not pass a law to compel religious observance of Sunday; and as two of them thought this law of 1858 was meant to do this, they said it was void, and set the clothes-dealer tree. Then there was practically no Sunday law for awhile. In 1861, the Legislature passed another law. A second shop-keeper was arrested and made the same complaint to the court. The judges agreed again that the Legislature could not prescribe r’eligious observances, but they said that the new law did not profess to do so, but only sought to protect the quiet of the da}” from disturbance; therefore it was valid, and the shop-keeper must pay his fine. And this was not because California, even twenty years ago, was especially lax. ■ Ho longer ago than 1877, a Seventh day believer prosecuted, in Massachusetts, for keeping open shop on the Lord’s day, argued that he had faithfully and conscientiously kept Saturday as a Sabbath, and ought to Ire allowed to trade on Sunday. The judges told him that he was mistaken in supposing the law intended to make people observe a day religiously. It is a civil regulation providing for a fixed period of rest in the business, the ordinary avocations and the amusements of the community. If there is to be such a cessation from labor and amusement, some one day must bo selected for the purpose; and even if the day thus selected is chosen because a great majority of the people celebrate it as a day of peculiar sanctity, the legislative authority to provide for its observance is derived from its general authority to regulate the business of the community and provide for its welfare. The law imposes on no one any religious ceremony or attendance, and any one who deems another day more suitable [238]*238for rest or worship, may observe it so ; but be may also be compelled to abstain from business on tbe First day ; not on religious grounds, but because be must submit to tbe rules which govern tbe business of the community. So be was condemned. And one may find similar decisions in other States.
Moreover, there is satisfactory ground for saying that the scope and purpose of these laws as administered in the courts is not confined to protecting church service from interruption, but extends to preserving the day in its entirety, as a general rest-day. The theory is not that some persons wish to attend church, but that tbe community has a need that tbe masses should have a day of quietude. There is, to be sure,an element of protecting public worship. There are equally the uses of protecting the quietudeoft.be household; of shielding the laborer from the coercive demands of competitive business; and of inter]losing a barrier between the young or the unoccupied and the allurements of exciting amusements. All these and other germane objects are within the policy of these laws as practically administered.
It is noteworthy that the courts are, in their own practice, faithful t.o their theory of Sunday. Such a thing as a court of justice requiring any observance of Sunday, in obedience to any rule, or decision, or opinion of a judge, is wholly unknown. Such a thing as tolerating any infraction of the repose of the day by any legal proceeding except. of the most necessary sort, is equally unknown. Sunday is, in the parlance of courts, dies non juridicus ; not a judicial day. Heinous offenders may be arrested. Beyond this the few things which may be done by a judge or court on Sunday, like allowing a jury who have sat up all Saturday night to render their verdict and go home; or a prisoner in jail to give a bail bond and be discharged, are allowed to enable people to observe the day, not to induce them to disregard it.