JAMES S. BOTSFORD, Special Judge.
— This cause comes by appeal from the Worth Circuit Court. At the hearing here, one of the judges of this court, having been of counsel, did not sit, and the remaining six judges being equally divided in opinion, the special judge in the case was appointed. [Const, of Mo., article 6, section 11.] The cause is resubmitted by the parties to the court thus constituted. The suit originated by a [208]*208criminal information to recover a fine for the violation of a statute which was enacted in 1907 (Laws 1907, p. 180), and reads as follows:
“Be it enacted by the General Assembly of the State of Missouri, as follows:
“Sec. 1. That all persons, copartnerships, companies or corporations operating any railroad or part of a railroad in this State shall, unless hindered by wrecks or providential hindrance, run at least one regular passenger train each way every day over all lines, or part of a line, of railroad so operated by such person, copartnership, company or corporation in this State, which train shall stop at all regular stations along the line of such railroad for the purpose of receiving and discharging passengers.
“Sec. 2. Any person, copartnership, company or railroad corporation violating the provisions of this act shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not less than one hundred dollars nor more than five hundred dollars for each offense.
“Approved March 19, 1907.”
The information charged defendant company with having failed to run a regular passenger train each way over its line of railroad between Grant City and Worth, in said county, on July 28, 1907, which day fell on Sunday, the first day of the week. At the trial, a jury was waived and the cause submitted to and decided by the court on an agreed statement of facts which were the same as the facts stated in the information. It appears from the agreed statement that defendant had and has a railroad between Chariton, Iowa, and St. Joseph, Missouri, through said Worth county, with said Grant City and Worth as regular stations, and that defendant habitually ran a regular passenger train eacli week day, each way on its said line, but did not run and failed and refused to run any pas[209]*209senger train on said line on said Sunday. Both the information and agreed statement negatived, that defendant was hindered from running passenger trains on said Sunday by wrecks or providential hindrance. The points made by the company were that Sunday was not included within said Act of 1907, and that if construed to include Sundays said act was invalid under the Constitution of Missouri and also under that of the United States. The trial court overruled these points and gave a final judgment against the company, finding it guilty, and assessing a fine of $100. Those points having been saved by proper exceptions and an overruled motion for a new trial, preserved in a bill of exceptions, are before us on defendant’s appeal.
The first point, that Sunday is not included in the act by the use therein of .the words “ every day”, depends for its solution on the question whether the running of trains as enjoined by the act, is lawful on Sunday the same as on a week day. Sunday is a day of a dual character. It is the Christian’s day of worship; it is also the day of rest of men everywhere, irrespective of whether they have or have not a creed or a religious belief. The law does not deal with Sunday as a day of worship, but with it only as a day of rest. The confusion of the two characteristics of the day has doubtless contributed to the large number of conflicting decisions by the courts.
The Missouri Sunday laws have regard to that day as a day of rest, and not to the religious character of the day. They are civil, not religious regulations, and are based upon a sound public policy which recognizes that rest one day in seven is for the general good of mankind. [Hennington v. Georgia, 163 U. S. 299-304.] Those laws are sustained as civil, municipal or police regulations, without reference to the fact that the day of rest is also the Christian’s day of rest and worship. [State v. Ambs, 20 Mo. 214; State v. Granne[210]*210man, 132 Mo. 326, 331; St. Louis v. De Lassus, 205 Mo. 578, 585; Swann v. Swann, 21 Fed. 299; 27 Am. & Eng. Ency. Law (2 Ed.), p. 388; Lindenmuller v. People, 33 Barb. 548,]
Tbe decisions of our courts that Sunday is not included in the four days given for filing a motion for a new trial, are .because, at common law and under the statutes, with certain exceptions, judicial proceedings cannot take place on Sunday. At common law, only judicial proceedings on Sunday were unlawful. [27 Am. and Eng. Ency. Law (2 Ed.), p. 389; Merritt v. Earle, 29 N. Y. 116; Pepin v. Baptiste, 24 R. I. 550; Eden v. People, 161 Ill. 296 ; Roberts v. Barnes, 127 Mo. 415.] Labor and the making of contracts were not prohibited. [Swann v. Swann, 21 Fed. 299.]
In the above case of Swann v. Swann, 21 Fed. 299, which was a case decided in the United States Circuit Court for the Eastern District of Arkansas, the following propositions were adjudged, as appears from the syllabus of the case.
“3. Lord’s Day Contracts — Valid in Tennessee, When. — In Tennessee isolated private contracts made on the Lord’s day, outside of the ordinary calling of the parties to them, are valid.
“4. Same — Arkansas Rule. — Prima facie contracts made in Arkansas on the Lord’s day are void; but contracts made in that State, on that day, between parties who observe as a day of rest any other day of the week, agreeably to the faith and practice of their church or society, are valid.
“5. Same — Common Law. — At the common law, contracts made on the Lord’s day were as valid as those made on any other day.
“6. Public Policy — How Ascertained. — The only authentic and admissible evidence of the public policy of a State, on any given subject, are its constitution, laws and judicial decisions.
[211]*211“7. Lord’s Day Acts — Police Regulations. — The Lord’s day acts are not religious regulations; they are a legitimate exercise of the police power, and are themselves police regulations.”
The opinion in the case is by Judge Caldwell. It contains a full citation of the authorities, English and American, and an extended consideration of the subject.
Missouri has had a legislative policy on the subject of Sunday laws for eighty-five years. That policy first found expression in the Missouri Revised Statutes of 1825, and has continued through all the revisions since then until now. The Sunday laws of this State as they appeared in the first Revised Statutes of Missouri in 1825 and which may be found at pages 310' and 311 thereof, and which were approved February 11, 1825, read as follows:
“Sec. 90. Be it further enacted, That if any person on the Lord’s day, Sabbath or Sunday, shall be found laboring, or shall compel his or her apprentice, servant or slave, or the apprentice, servant or slave of any other person, to labor or perform other services, unless it be the ordinary household offices of daily necessity and charity, or other works of necessity or charity, he, she, or they, so offending, shall, on conviction, forfeit and pay the sum of one dollar for every offense, deeming every apprentice, servant or slave so compelled, as constituting a distinct offence; Provided, That no person who is a member of any religious society, who observes as a Sabbath any other day than the' Christian Sabbath, shall be liable to the penalty herein incurred for a breach of the Sabbath, so that they observe one day in seven, agreeably to the regulations aforesaid, saving to ferrymen the right of crossing passengers.
“Sec. 91. Be it further enacted, That if any white person shall be guilty of shooting, horse racing, code fighting, hunting, or of frequenting tippling houses or’ [212]*212groceries, on the first day of the week, called Sunday, or Sabbath he shall, on conviction, be fined not less than one, nor more than ten dollars: Provided, however, That this section shall not extend to any person or persons, who may hunt, shoot or kill any wolf, panther, wild cat or other animal or fowl, which may in any way depredate upon, or destroy any tame stock, growth or grain.
“Sec. 92. Be it further enacted, That if any person shall expose to sale any wares, merchandise, goods or chattels, or shall keep open any ale, or porter house or grocery, or shall retail any ale or porter, or any strong or spirituous liquors, after ten o’clock in the morning, on the 'first day of the week, called Sunday, every person, so offending, shall, on conviction, be fined not less than one nor more than ten dollars: Provided, that this section shall not extend to the sale of articles of provision, or to the sale of any article of immediate necessity.’.’
The same statutes, couched in different phraseology, as contained in the revision of 18-90' and which appear at pages 623 and 624 of volume 1 of the Revised Statutes of Missouri of 1899, read as follows:
“Sec. 2240. Every person who shall either labor himself, or compel or permit his apprentice or servant, or any other person under his charge or control, to labor or perform any work other than the household offices of daily necessity, or other works of necessity or charity, or who shall be guilty of hunting game or shooting on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars.
“Sec. 2241. The last section shall not extend to any person who is a member of a religious society by whom any other than the first day of the week is observed as a Sabbath, so that he observes such Sabbath, nor to prohibit any ferryman from crossing passengers on any day of the week; nor shall said last section [213]*213be extended or construed to be an excuse or defense in any suit for the recovery of damages or penalties from any person, company or corporation voluntarily contracting or engaging in business on Sunday. [R. S. 1889, sec. 3853.]
“See. 2242. Every person who shall be convicted of horse -.racing, cock fighting or playing at cards or games of any kind, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars. [R. S. 1889, Sec. 3854-m.]
“Sec. 2243. Every person who shall expose to sale any goods, wares or merchandise, or shall keep open any ale or porter house, grocery or tippling shop, or shall sell or retail any fermented or distilled liquor on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor and fined not exceeding fifty dollars. [R. S. 1889, Sec. 3855m.] ” '
These statutes exempt from their operation “works of necessity and charity.” Those words are to be found in like statutes of many of our sister States. The meaning of the word “necessity” has been the subject of controversy in a large number of the conflicting decisions on this subject. That word should be construed reasonably and neither too literally or liberally. By the word “necessity” in the Sunday law, we are not to understand a physical and absolute necessity, but a moral fitness or propriety of the work and labor done under the ci-rcumstanves of the particular case may well be deemed a necessity within the statute. [State v. Schatt, 128 Mo. App. 622-636; Burnett v. Telegraph Co., 39 Mo. App. l. c. 611.] See, also, to the same effect the remarks of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, as to the meaning of the word “necessary” in the Constitution of the United States. See, also, Yonoski v. State, 79 Ind. 393; State v. Collett, 72 Ark. 167.
[214]*214Again, in section 90; Revised Statutes 1825; appear at the end of the section the words, “saving to ferrymen the right of crossing passengers,” and language of like meaning has appeared in every succeeding revision. In 1825, when the statute with those words was first passed, ferryboats and steamboats on the rivers performed the functions since assumed by the railroads, which then had no existence in the State. In the days of steamboat traffic, nothing was more common than the running of those boats on Sunday the same as on week days. Now in their place we have railroads, and in place of ferryboats we have bridges across the Mississippi, Missouri, Osage, Kaw and other rivers. Can there be any doubt but that in early times the running of both ferryboats and river vessels was lawful, even without the saving clause in the Law of 1825? The carrying of neither freight nor passengers by common carrier, whether it be by steamboat or a railway train, on Sunday, is forbidden by the common law, and if not forbidden by statute, is as lawful on Sunday as on a week day.
' Carrying freight on Sunday is a work of necessity. [Philadelphia, etc. Railroad v. Lehman, 56 Md. 209; Powhatan Co. v. Railroad, 24 How. 247.]
In the case of Railroad v. Lehman, 56 Md. 209, l. c. 228, the facts were as follows:
The railway company was sued by Lehman for delay in delivering Lehman’s cattle too late to be sold on Monday morning in the market for which they were destined. The declaration of the plaintiff Lehman alleged that the cattle were received by defendant railway company on July 28,1878, which was Sunday, and that the cattle were detained by the railway company upon its road, in Baltimore, until about half past 12 a. m. of the morning of Monday, July 29, 1878. There was a demurrer by the railway company to the declaration, which was overruled in the trial court. Afterwards there was a trial, resulting in a verdict and judgment [215]*215against the railway company, which appealed. The Maryland Supreme Court, in deciding the case, adjudged the following propositions:
“4. That its obligation was to carry, according to its public profession, and the conveniences at its command. And if injury were sustained by reason of any neglect of this duty, or other wrongful act in the carrying and delivery of the cattle, the fact of tlieir having been received to be carried, or having been carried on Sunday, could afford no excuse to the defendant, or exoneration from liability.
“5. That the carrying forward of the cattle by the defendant on Sunday was not illegal; it was fairly and justly a work of necessity, and therefore excepted from the operation of the statute.
‘ ‘ 6. That even upon the supposition that the plaintiffs were violating the law in having their cattle transported on a Sunday, the defendant could not avail itself of s,uch infraction of the law by the plaintiffs as a defense to an action for the consequences of a wrong or negligence of its own.”
The case shows that in consequence of the delay in transit of the cattle they did not arrive in the market of their destination until Wednesday, July. 31, 1878, instead of Monday, July 29, 1878. The court in its opinion, at p. 228, uses the following language:
“The carrying forward of the cattle by the defendant on Sunday was not illegal; it was fairly and justly a work of necessity, and therefore excepted from ’ the operation of the statute. And that being the case, there is no ground for the excuse relied on by the defendant. [Powhatan Steamboat Co. v. Railroad, 24 How. 247-253; Carroll v. Railroad, 58 N. Y. 126; Flagg v. Millbury, 4 Cush. 243.] - And even upon the supposition that the plaintiffs were violating the law in having their cattle transported on a Sunday, it is well settled that the defendant could not avail itself of such infraction of the law by the plaintiffs, as a defense to an ac[216]*216tion for the consequences of a wrong or negligence of its own. [Philadelphia, etc. Railroad v. Towboat Co., 23 How. 209; Mohney v. Cook, 26 Pa. St. 342; Sutton v. Town of Wauwatosa, 29 Wis. 21; Carroll v. Railroad, 58 N. Y. 126.] The court below was clearly right, therefore in overruling the demurrer of the defendant to the declaration of the plaintiffs.”
In the case of Commonwealth v. Louisville & Nashville Railroad Co., 80 Ky. 291, the Court of Appeals of Kentucky ruled that: “1. The running of its passenger trains by appellee upon its railroad transporting passengers, baggage, etc., on the Sabbath day is not a violation of section 10, article 17, chapter 29; General Statutes.
“2. Such use of its trains on that day held to be ‘a work of necessity.’ ”
That was a proceeding in the name of the Commonwealth against the railroad company under the Kentucky statute, which provides as follows: “No work or business shall be done on the Sabbath day, except the ordinary household offices, or other work of necessity or charity. If any person, on the Sabbath day, shall himself be found at his own or any other trade or calling, or shall employ his apprentices or other persons in labor or other business, whether the same be for profit or amusement unless such as is permitted above, he shall be fined not less than two nor more than fifty dollars for each offense.”
The petition in the case to recover the fine on the part of the Commonwealth against the railroad com-' pany, alleged that on Sunday, April 3, 1881, the company did run and operate over its railroad track, in the county of Jefferson, a certain train, consisting of one locomotive engine, baggage car, and three several passenger coaches, and that said train was running and transporting for the profit of the defendant, passengers and their baggage, merchandise, express packages, and the United States mail into the State of Ken-[217]*217lucky for sundry points within the State, and through said State into other States. That for the purpose of operating said train the company did hire and employ certain persons to work and labor on the train as engineers, brakeman, and baggage-master, and for which labor they were paid their wages. And it was further alleged that such work was not a work of necessity or charity. In the opinion in the case, the court said:
“The sole power of.determining the policy of such an enactment as is brought in question is vested in the legislative department of the State government by the Constitution, and unless the passage of this Sunday law, as it is usually termed, is inhibited by some provision of that instrument, it must be sustained. The legislative will is supreme on all such questions, and when not abridging the civil rights or privileges of the citizen, must be held to be constitutional. The constitutionality of similar enactments has been passed on and sustained by courts of last resort in nearly every State of the Union, and this concurrence of opinion, together with a reference to former decisions of this court on kindred subjects, concludes, in our opinion, the constitutional question raised, and we will discuss the application of the statute alone to the acts of this company, entertaining no doubt as to the constitutionality of the law.
“The meaning to be attached to the words ‘or other work, of necessity’ found in the act, must control the decision of this case, and if we are to attach to those words their scientific or physical meaning, that is, that the action of the company was inevitable or could not have been otherwise, its liability would at once be fixed, as it might have stopped its trains or declined to receive freight or passengers unless upon the agreement that the delay in transportation should relieve it from responsibility. Under such a ruling the cooking of food or the feeding of stock on the Sabbath might be dispensed with, and every other necessity [218]*218in the way of labor that wás not indispensable to man’s existence.
“Could this have been the legislative intent when using such language in the statute? or shall we not interpret the words as having a legal meaning designed to apply to the wants of the citizen, adapting the language in its construction to the manners, habits, wants, and customs of the people it is to affect? — and, in many cases, the rights and duties of those charged with a public or private duty, and the obligations they are under to others must also be considered in determining the character of labor falling within the statutory prohibition. It is argued in the case' of Sparhawk v. Union Passenger Railway Company, reported in 54 Pennsylvania, p. 401, that it was not intended by such acts to exempt the party charged from the prohibition of the statute because his labor was a work of necessity to others, but it must be a work of necessity to him who does the labor. We do not so construe the statute. If so, why protect the apothecary who sells his medicines for the relief of the patient, or the dairyman who furnishes milk for his customers, or the hotel keeper who furnishes his guests with food and lodging? It is the exigencies of the object to be accomplished that determines, to a great extent, the means to be resorted to for that purpose. No safer rule, we think, can be established, or any better definition given of the word necessity, than is found in the decision cited as adverse to the views therein expressed and that is: ‘ The law regards that as necessary which the common sense of the country, in its ordinary mode of doing business, regards as necessary,’ The change in the habits and customs of the people, and the mode and character of transportation and travel, makes that a necessity at this day that half a century since would not have been so regarded.
“It is impossible, and certainly not practicable, to draw the line of distinction with certainty between [219]*219works of necessity and such labor as falls within the denunciation of the statute, and we are not disposed to venture so far as to attempt to place a limit to the meaning of the word necessity when applied to the wants of man. In the case of McGatrick against Wason, reported in 4th Ohio State, p. 566, it was held ‘that works of necessity are not limited to the preservation. of life, health, or property from impending danger. The necessity may grow out of, or indeed be incident to, the general course of trade or business, or even be an exigency of a particular trade or business, and yet be within the exception of the act. Hence the danger of navigation being closed may. make it lawful to load a vessel on Sunday, if there is no other time-to do so.’
“In the case of the Phil. & Balt. Railroad Co. v. Steam Towboat Co., 23 Howard, 209, the court said: ‘We have shown, in .our opinion delivered at this term, that in other Christian countries, where the observance of Sundays and other holidays is enforced by both Church and State, the sailing of vessels engaged in commerce, and even their lading and unlading, were classed among the works of necessity which are excepted from the operation of such laws. This may be said to be confirmed by the usage of all nations, so far at least as it concerns commencing a voyage on that day.’
“Railroad companies, as carriers of passengers, furnish at this day almost every accomodation to the traveler that is to be found in the hotels of the country. His meals, as well as sleeping apartments, are often furnished him, and to require the train, when on its line of travel, to delay its journey that the passenger may go to a hotel to enjoy the Sabbath, where the same labor is required to be performed for him as upon the train, or to require him to remain on the train and there live as he would at the hotel, would certainly not carry out the purpose of the law, and besides [220]*220the necessity for reaching.his home or place of destination must necessarily exist in so many instances as to make it indispensable that the train should pursue its way. So of the train transporting goods, merchandise, live stock, fruits, vegetables, etc., that, by reason of delay, would work great injury to parties interested. A private carriage in which is the owner or his family, driven by one who is employed by the month or the year, to the church in which the owner worships, or to the home of his friend or relative, on the Sabbath, is not in violation of the statute. So in reference to the use of street railroads in towns and cities on the Sabbath day. ■ Those who have not the means of providing their own horses or carriages travel upon street cars to their place of worship, or to visit their friends and acquaintances; and such is the apparent necessity in all such cases, that no inquiry will be directed as to the business or destination of the traveler whether in the one case or the other, nor will an inquiry be directed as to the character of the freight being transported; nor will the person desiring to hire the horse from the livery stable be compelled to disclose the purpose in view in order to protect the keeper from the penalty of the law. Such employments are necessary, and not within the inhibition of the statute.”
It has been held that the rule as to judicial proceedings had on, Sunday, should not be unduly extended.
In the case of Pepin v. Societe St. Jean Baptiste, 24 R. I. 550, it was decided by the Supreme Court of Rhode Island that: “A benefit association whose object is not profit, but to relieve members and their families in case of sickness and death, is a charitable organization, and the transaction of its business is a work of necessity and charity, and can be done on Sunday.” That was a suit by mandamus, brought by a member of a benefit society who had been excluded therefrom by an order of the society made on Sunday. [221]*221There was a demurrer by the society to the petition for the mandamus, and in discussing the demurrer, the court in its opinion used the following language:
“Another ground for demurrer is that, as the hearing and expulsion took place on Sunday, it was illegal and void. It was a rule of the common law that Sunday is a non-judicial day, and many eases have held that a judgment entered on Sunday was void. The petitioner argues that the trial in this case was an exercise of judicial power, and therefore void. The cases relied on by him relate to judgments of courts, where it has been held, in some upon common law authority and in some upon statutory provisions, that judgments so entered were void. We recognize the correctness of such decisions upon common law authority, and also upon grounds of public policy and recognition of Christian practice. The present case, however, does not come within such grounds of prohibition. While there was a trial, the respondent was not a court of law, but a benevolent association, and its action was a part of the business of such society. Such bodies are recognized as charitable organizations, because their object is not individual profit, but a provision to relieve its members and their families in case of sickness and death. There was no rule at common law to forbid such societies to transact their business on Sunday. Possibly they are of too recent date to have been embraced in such a rule. As said by Savage, C. J., in Story v. Elliott, 8 Cow. 27, 18 Am. Dec. 423: ‘ By the common law then, it appears, all judicial proceedings are prohibited. All other acts are lawful unless prohibited by statute.’ That case involved an award made on Sunday, and the court held it void as a judicial proceeding, because arbitrators are not only jurors to determine facts, but judges to adjudicate as to the law; and their award, when fairly and legally made, is a judgment conclusive between the parties, from which there is no appeal. Accepting the rule thus [222]*222stated, we do not think that the action here complained of was a judicial proceeding in the sense in which the term was used at common law. Nor by the court in the opinion last cited. Evidently the courts of New York do not so regard it, for in People ex rel. v. Young Men’s Society, 65 Barb. 337, it was held that a notice to answer charges served on Sunday, and a hearing, resulting in expulsion from a benevolent society, on the next Sunday, were not illegal because the papers were served and were returnable on Sunday, because they were not illegal at common law nor forbidden by statute. The court added: ‘The relator chose to be* long to a society which held all its regular meetings on that day, and if, at such a meeting, he was served with a notice to attend the next meeting, it does not rest with him to make the objection.’ In McCabe v. Father Matthew Society, 24 Hun, 149, it was held that a resolution of suspension was not rendered invalid by the fact that it was adopted at a meeting held on Sunday, for the reason ‘it is pure charity to relieve sick members, and the passage of such a resolution on Sunday would be unobjectionable.’ In Turnverein v. Carter, 71 Mich. 608, under Comp. Laws, chapter 55, section 1, like our laws in excepting works of necessity and charity, it was held that a resolution authorizing a mortgage by the society, passed on Sunday, was void because it was not a religious or charitable association; implying that a charitable association might have done so. No cases are cited by the petitioner, and we know of none, which hold that a society of this sort may not transact its business on Sunday. That which comes nearest to such a statement is Society v. Commonwealth, 52 Pa. 125, 91 Am. Dec. 139. The court sustained the expulsion of a member of a relief association for the sick, at a meeting held on Sunday, on the ground that the question of illegality for that cause was not before the court as one of the grounds of demurrer. The court added, by way of quaere: ‘It [223]*223might be well to consider how far such trials on Sunday comport with the legislation of the State and the genius of our institutions.’ The statute was similar to ours in excepting works of necessity and charity. We think that the necessary work of charitable organizations is within the intent and words of our statute. The petitioner argues against such a construction, for the reason that he might not be able to compel the attendance of witnesses or the aid of counsel on Sunday. This consideration, however, is not raised by any facts set forth in the record. The attendance of witnesses before such a tribunal cannot be compelled at any time; but a lawyer appearing to defend might be regarded as doing work of his ordinary calling. ' If either witnesses or counsel should be unwilling to attend on- Sunday, or for any cause tending to deprive one of a fair trial he should ask for a reasonable postponement on that account and it should be refused, there would be strong reason for holding such an expulsion to be illegal. But no such facts appear in this case. We decide that the demurrer to the answer cannot be sustained upon the grounds stated.”
In the case of Western Union Telegraph Co. v. Griffin, 1 Ind. App. 46, it was held that the sending of a telegraph message on Sunday, addressed to a doctor, notifying him that the sender’s daughter was ill and asking him to come at once, was reasonably necessary under the law of Indiana. Suppose a person living at •Grant City, Missouri, should early Sunday morning receive a telegram of the death of a relative, at St. Joseph, Missouri, the previous midnight. The sending and delivering of the telegram would be lawful. How could it be affirmed that the taking of the next train on Sunday to St. Joseph would be unlawful? And if in the Indiana case cited above, it was lawful to telegraph on Sunday for a doctor to come to attend a sick person on Sunday, was it not also lawful for the doctor to ride on the next train in answer to the call?
[224]*224In the case of Western Union Telegraph Co. v. Wilson, 93 Ala. 32, it was held that the notification to a person of the death of his father and a request to attend the funeral involved such a moral necessity that a contract to send a telegraphic message for that purpose is valid, though made on Sunday. In the opinion in that case, the court said: “We cannot doubt but that the emergency of the death and burial of one’s father involves such moral necessity for his presence before and at the funeral as brings any contract, made to that end on Sunday, within the exception of cases of necessity made by our statute, if indeed such contracts would not also be within the exception in favor of works of charity, in a liberal sense of that term. [Code, Sec. 1749; Burns v. Moore, 76 Ala. 339; Railroad v. Levy, 59 Tex. 542; Doyle v. Railroad, 118 Mass. 195.]”
In the case of State v. Collett, 72 Ark. 167, it was held, that where a belt in a mill employing two hundred persons broke on Saturday through an unexpected defect, and could not be repaired that day because gasoline could not be procured in a town of three thousand inhabitants, the repairing of it Sunday morning, without which the mill would have to be shut down Monday, as after the belt was glued it had to dry eighteen hours before it could be used, was a work of necessity within the meaning of the Sunday law of Arkansas.
Suppose there were a like mill at Albauv, Missouri, and an accident happened to it too late Saturday evening to be repaired that day. Would it be unlawful to use defendant’s passenger and freight trains which run between that city and St. Joseph Sundays the same as on other days, to obtain the necessary repairs so as to resume work on Monday?
It is a well-known fact that Monday morning is the best time in the week to market live stock shipped to Chicago, St. Louis, Kansas City, St. Joseph or Omaha. [225]*225but if a train of live stock loaded up in Texas for one of those markets, must under the act of Congress, stop for rest, water and feed of the cattle after being' out twenty-eight hours, must the train also remain on a switch or side track over Sunday?
In the case of the City of Topeka v. Hempstead, 58 Kan. 328, it was held that: ‘ ‘ The delivery of milk to his customers by a dairyman is a work of necessity, and not within the inhibition of a' law forbidding any labor on Sunday other than works of necessity or charity. ’ ’
Suppose the electric lighting, gas heating, hotel and street. railway companies of the large cities of this State were to refuse to perform their public duties on Sunday by closing down that day, on the ground that the performance of those duties that day is unlawful, would such a refusal or contention be sustained?
In the case of Sullivan v. Railroad, 82 Me. 196, it was held that riding upon Sunday, for exercise, and for no other purpose, is not a violation of the Maine Sunday statute. In the opinion in that case the court uses the following language:
“The defendant’s contention in support of the single question raised by the exceptions is founded upon the erroneous assumption that riding upon Sunday for exercise, and for no other purpose, is a violation of the statute in relation to the observance of the Lord’s day. The statute is not to be so construed. Such an interpretation would be contrary to the spirit as well as the letter of a statute which expressly excepts from its prohibition works of necessity or charity. [Rev. St., c. 124, Sec. 20.]
‘ ‘ And this exception may properly be said to cover everything which is morally fit and proper, under the particular circumstances of the case, to be done upon the Sabbath.
[226]*226“Tested by this rule, our own court, in O’Connell v. Lewiston, 65 Me. 34, and Davidson v. Portland, 69 Me. 116, bas held that walking out in the open air upon the Sabbath for exercise is not a violation of the statute.
“In other jurisdictions, also, it has been held not to be unlawful to ride to a funeral (Horne v. Meakin, 115 Mass. 326), walking to prepare medicine for a sick child (Gorman v. Lowell, 117 Mass. 65), riding to visit a sick sister (Cornan v. Boston, 136 Mass. 384), traveling to visit a sick friend (Doyle v. Railroad, 118 Mass. 195), a servant riding to prepare needful food for her employer (King v. Savage, 121 Mass. 303), a father riding to visit his two boys (McClay v. Lowell, 44 Vt. 116), walking for exercise (Hamilton v. Boston, 14 Allen, 475), and walking partly for exercise and partly to make a social call (Barker v. Worcester, 139 Mass. 74).”
In the case of Louisville & Nashville Railroad Co. v. Commonwealth, 30 S. W. 878, the State of Kentucky sued the railway company to recover a penalty for running an excursion train on Sunday. From a judgment in the trial court against the company that company appealed to the Kentucky Court of Appeals, where-the judgment of the trial court was reversed and the cause remanded with directions to-sustain a demurrer to the petition in the case. There seems to have been two cases and the appeals were decided together. In the opinion in the case, the court said: “These two cases involve the same questions, and were heard together. These appeals are prosecuted from judgments of the Taylor Circuit Court rendered in suits of the Commonwealth of Kentucky against appellant, instituted to recover the penalty prescribed by section 10, article 17, chapter 29, General Statute, which provides that no work or business shall be done on the Sabbath day, except the ordinary household offices or other work of necessity or charity, and pro[227]*227vicies a fine of from two to fifty dollars for each, offense. •Appellant filed its demurrer in each of these cases, which was overruled, and a trial resulted in a judgment against apellant in each case for $300. Prom these judgments appellant has appealed, and insists that no cause of action was stated in the petition. The petitions alleged, in substance, that the appellant, being a railroad corporation, did on the Sabbath day, run and operate a train of ears on its railroad in Taylor'county, through the county to Louisville, by way of Lebanon, and that said train did not carry freight nor United States mail; that no regular trains were run on said road on the Sabbath day. The allegations of the petition show that the train was an excursion train, and that a lower rate of fare was charged than on regular trains. The question presented for consideration is, Was the running of said train a work of necessity? Appellant refers to the case of the Commonwealth against the appellant, decided by this court at its May term, 1882, in which the meaning- and proper construction of the statute under consideration was discussed at length, and in that case it was decided that the running of regular trains by appellant on Sunday was a work of necessity. [See 80 Ky. 292.) It seems that, if trains can be lawfully run and operated on every Sabbath day for any and all purposes, an excursion train may be lawfully run when deemed necessary. It also seems that after the decision supra was rendered the Legislature adopted the views therein announced, and section 1321 of the Kentucky statutes permits the running of steam railroads on Sunday. It seems to us that the petition in these cases fails to show a right to recover, and the demurrer thereto should have been sustained. The judgment in each ca,se is therefore reversed, and causes remanded, with directions to sustain the demurrers, and for further proceedings consistent with this opinion. ’ ’
[228]*228In the case of Doyle v. Railroad, 118 Mass. 195, it appears that the plaintiff had ridden in one of defendant’s railway cars from Lynn to Boston on Sunday, for the purpose of visiting a sick friend whom he thought might need assistance and for the purpose of rendering such assistance as he might find necessary, and the Supreme Court of Massachusetts held that such travel was lawful.
In the case of Murray v. Commonwealth, 24 Pa. St. 270, the Supreme Court of Pennsylvania adjudged the following propositions:
“1. A lock-keeper in the employ of the Schuylkill Navigation Company is not liable to conviction for violating the Act of 22d April, 1794, prohibiting worldly employment on Sunday, for opening the lock-gates on the Schuylkill Canal to admit the passage of boats on the Sabbath day, on the demand of owners or captains of boats navigating the canal.
“2. The Schuylkill river is a public highway; and as people have a right for some purposes to pass along it even on Sunday, the company must keep it open; and the agents of the company are not to judge as to the lawfulness of the travel; which is due at the risk of incurring the penalty prescribed for the violation of Sunday, inflicted in the mode prescribed by law.”
That was a case where Murray was charged with having violated the law prohibiting worldly employment on the Lord’s day. The act of Murray, the defendant, consisted in' opening the lock-gates of the Schuylkill Canal on Sunday to admit, of the passage of boats, upon the demand of their owners or captains engaged in navigating the canal. The legality of the conviction of the defendant Murray was the sole question for decision in the Supreme Court. In the opinion in the case, Lowrib., J., said;
“The Schuylkill river is a public highway; and as people are not forbidden by law, and therefore have a right, for some purposes, to pass along it, even on [229]*229the Lord’s day, the Navigation Company must keep it open, and, for this purpose, must have lock-keepers to act for them. There may, indeed, be unlawful travel on Sunday, and for such, travel there can be no right to have the locks opened; but the criminality of the lock-keeper. is not proved by the criminality of the travel, because, as agent of the company, he is bound to keep the navigation open for travel, and is not made the judge of its rightness.
“Every man travels at his own risk on Sunday, and that risk is measured legally only by the legal penalty. To stop him would be the imposition of a different penalty, tenfold more serious perhaps; and it is not the remedy of the law. Besides this, the law would not impose upon the lock-keeper the authority to judge of the rightness of the travel, without investing him with the exemption from liability for misjudgment that ordinarily belongs to judicial officers, and then the traveler would be without remedy in case of his error of judgment, and would be justified in going on in case of a decision in his favor. This would make a lock-keeper, in this respect, a more important public officer thán a justice of the peace.”
We have seen from the foreg-oing considerations and citations, that, viewed from the standpoint of labor, much of the travel on Sunday on the railways, are works of “necessity” within the meaning of our laws, and the opinion of Mr. Justice Lowbie in the case last cited, is a precise authority, emanating from a great judge, to the effect that no common carrier can make itself a judge or magistrate of the law to determine whether any of its passengers riding on Sunday, is riding under circumstances which make him a violator of law, or not.
Thus far I have proceeded upon the theory that traveling is labor, not rest. The statutes of the different States forbid labor, not rest. Suppose a family goes to church Sunday morning in an automobile. Is [230]*230their so going labor or rest? If they go ont in the same way fifty miles or more the same afternoon, is that labor or rest? If instead of their riding in a carriage or automobile, guided either by one of the family or by an employed driver or chauffeur, they ride in the same way Sunday morning and afternoon in a street car, or a suburban trolley line, is that labor or rest? If a person stays all day Sunday at a hotel, is that labor or is it rest? And if he, instead of staying at a hotel, obtains the same accommodations on a moving train of cars, is that labor or rest? Riding on a train of cars on Sunday may or may not be worship, but I am of opinion that the citizen may observe Sunday as a rest day, in any manner he chooses to rest, that he may do so either in his private vehicle or in a conveyance of a common carrier, or at a hotel, or at his home, and that he does not thereby infringe either upon any of our statutes ox upon the policy of the State as evidenced thereby.
It follows that traveling on Sunday on the trains of railways is not unlawful, and that the words ‘ ‘ every day” in the Act of 1907 under consideration includes Sundays with the other days of the week. Even if said act in so including Sunday had changed the legislative policy of the State, or had repealed or modified by implication any former statute, the result would be the same. And here we are brought to the point that the Act of 1907, so construed as to include Sunday, is violative of the State Constitution. Here it should be noted that while the Federal Constitution is a grant of enumerated powers, a State Constitution is a body of limitations of the powers of the Legislature and the other departments of the State government. [Cooley’s Const. Lim. (17 Ed.), 126.]
What is there in our State Constitution prohibitive of the Act of 1907 in question?
The following are the sections of our State Constitution respecting the subject of religion. Sections [231]*2315, 6, 7 and 8 of article 2 of the Missouri Constitution read as follows:
“Sec. 5. That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience; that no person can, on account of his religious opinions, be rendered ineligible to any office of trust or profit under this State, nor be disqualified from testifying, or from serving as a juror; that no human authority can control or interfere with the rights of conscience; that no person ought, by any law, to be molested in his person or estate, on account of his religious persuasion or profession; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, nor to justify practices inconsistent with the good order, peace or safety of this State, or with the rights of others.
“Sec. 6. That no person can be compelled to erect, support or attend any place or system of worship, or to maintain or support any priest, minister, preacher or teacher of any sect, church, creed or denomination of religion; but if any person shall voluntarily make a contract for any such object, he shall be held to the performance of the same.
“Sec. 7. That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as stich; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.
“Sec. 8. That no religious corporation can be established in this State, except such as may be created under a general law for the purpose only of holding the title of such real estate as may be prescribed by law for church edifices, parsonages and cemeteries.”
[232]*232Also section 11 of article 11 of the same Constitution :
“Sec. 11. Neither the General Assembly nor any county, city, town, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, • anything in aid of any religious creed, church or sectarian purpose, or to help to support or sustain any private or public school, academy, seminary, college, university or other institution of learning controlled by any religious creed, church, or sectarian denomination whatever ; nor shall any grant or donation of personal property or real estate ever be made by the State, or any county, city, town or other municipal corporation, for any religious creed, church or sectarian purpose whatever. ’ ’
None of these provisions of the Constitution are violated by the Act of 1907 in question. The employees of the company voluntarily do the lawful work of running its trains on Sunday, and their rights to worship “according to the dictates of their own conscience” are in no wise restrained or denied. Any employee may accept or refuse employment on Sunday; he may remain at home, or he may attend worship at a church. There is no more compulsion in his service on Sunday than on a week day, and it is not shown, if indeed it could be shown, that there is any more difficulty in a railroad company employing trainmen for their Sunday trains than for a druggist, hotel-keeper, street car company, telegraph company, telephone company, gas company, or other public service company to hire clerks and other employees for their service on the same day. It is not shown, if indeed it could be shown, that railway employees act otherwise than voluntarily in their Sunday work, and the employee having exercised a lawful choice freely and voluntarily, I think the company cannot vicariously claim the right to make a different choice for the em[233]*233ployee than the one he makes for himself. [St. Louis v. Shields, 52 Mo. 351.] Nor is the Act of 1907 violative of the Missouri Constitution because of the words of its preamble, which expresses that “with profound reverence for the Supreme Ruler of the Universe and grateful for His Goodness” the people “establish this Constitution.” If this clause means that all men must observe Sunday* not only as a day of rest but also as a day of worship, then the preamble violates section 6 of article 2 above cited, and as a consequence an established religion by the State follows.
The Act of 1907 does not do any violence to Sunday considered as a day of rest, and does not violate the policy of the State or any provisions of the Constitution. If the act had either denied, aided or commanded the observance of the day as a day of worship, such provision would in my opinion be contrary to the Constitution.
Nor is the act open to the objection of class legislation. The law is valid although applicable alone to railroads. [Humes v. Railroad, 82 Mo. 221-223; State v. Swagerty, 203 Mo. 517; Missouri Pacific Railway v. Humes, 115 U. S. 512; New York, etc. Railroad v. Bristol, 151 U. S. l. c. 571; Atlantic Coast Line v. Corporation Commission, 206 U. S. 1.] The act contains no element of unjust discrimination, and no denial of the equal protection of the laws, it being alike applicable to all the railroads of the State. [Railroad v. Bristol, 151 U. S. 556, supra.] Nor does the act operate as a regulation of interstate commerce. [Hennington v. Georgia, 163 U. S. 299; Lake Shore Railway v. Ohio, 173 U. S. 285-306.] On the contrary the act is an aid to interstate commerce-rather than a hindrance or burden.
A railway company may be compelled by law to furnish trains for the carriage of passengers. . [Commonwealth v. Railroad, 85 S. W. 712; People ex rel. v. Railroad, 70 N. Y. 569.]
[234]*234And loss to a railroad is no defense to a petition for a mandamus to compel obedience' to such a law. [State to use v. Railroad, 83 Mo. 144, 150; Railroad v. Bristol, 151 U. S. 556; Railroad v. Ohio, 173 U. S. 285; Railroad v. Corporation Commission, 206 U. S. 1.]
And if the Legislature may compel railroad companies to perform their duties to the public by running passenger trains on week days, and if, as I hold, they owe the public the same duties of service on Sunday, as on week days, then it follows that the Act of 1907 commanding such performance and providing penalties for refusals to obey, is constitutional and valid. I think the judgment should be affirmed, and it is so ordered.
Valliant, C. J., Woodson and Brown, JJ., concur; Woodson, J., files separate concurring opinion; Lamm, Ferriss, and Graves, JJ., dissent in an opinion by Lamm, J.; Kennish, J., having been of counsel, did not sit.