SECTION 2289 of the Code of Tennessee forbids the carrying on of the common avocations of life on Sunday, works of real necessity and charity only excepted, under penalty of $3, to be recovered by “one-half to the person who will sue for the same” before a justice of the peace. Nothing is said in the statute about public or private work. All work is forbidden “except work of necessity or charity.”
This was all the Sunday law that Tennessee had until a few years since, a Seventh-day Adventist in Henry County, Tenn., was indicted for nuisance; it being contended that whereas a single act of Sunday work was punishable only under the statute, a repetition of such offense became a nuisance and was indictable. This view of the matter was sustained by the Supreme Court, notwithstanding the fact that that same tribunal had previously held that barbering on Sunday was not indictable, and that to so hold would be “a far-fetched and strained interpretation of the law,” and of the word “nuisance.”
In the several cases tried in Western Tennessee under this decision (for we cannot say that they were under the statute), the idea that it required a repetition of an offense to constitute a nuisance, was consistently kept in view. As stated in these columns, June 13, Judge Swiggart held in Henry County, January, 1893, that “it is not an indictable offense for a man to perform one act on Sunday against the statute.” And in a particular case in which the proof was that the defendant had worked in his garden on one Sunday, and that he had “piled chunks” in his clearing on another Sunday, Judge Swiggart charged that if the proof showed only two acts of Sunday work, it would not be sufficient to establish such a succession of acts as to constitute a nuisance.
But as previously stated in these columns, Judge Parks, of the 17th Tennessee Circuit, takes a very different view of the “law,” as made by the Supreme Court, and holds that a single act of public work is indictable and punishable as a nuisance. At the recent term in Rhea County, he charged as follows:—
GENTLEMEN OF THE JURY: The defendant is charged in the indictment with carrying on the common avocations of life on Sunday, the same not being acts of necessity or charity. To this charge a plea of not guilty has been entered, and this makes the issue which you are impaneled and sworn to try.
It is a violation of the laws of the State for any person to carry on any of the common avocations of life on Sunday by doing secular work of any kind, works of real necessity or charity excepted. The gist of the offense consists in doing work of such character or in such manner as amounts to a public nuisance. A nuisance is defined by law to be that which works hurt, inconvenience or damage to the public, or that is injurious to public morals.
To constitute the offense charged in this indictment it is not necessary for the State to show that any person was actually disturbed by the work. It is sufficient if it be shown that the acts which the law holds as illegal and forbidden were done in such a public manner as to be open to the observation of the public. The law regards the carrying on of common work on Sunday as having a tendency to corrupt public morals, and regards the example as pernicious and contrary to good order, the well-being of society, and public policy—provided such work is not of real necessity or charity and done in a public way; that is, where it is open to the observation of the public.
Ordinarily, a single act of any kind, which, if repeated and continued would amount to a nuisance (such as profanity, etc.), is not indictable. This rule applies to cases of the kind now on trial. If a person does a single act of work, which is not continued to that extent, or which is not done under such circumstances as to amount to a nuisance as already defined, he would not be guilty. But the Supreme Court has held that in profanity cases (for instance) a single oath, either by its terms, or the circumstances under which it is uttered, may amount to a nuisance. Precisely the same rule applies to a case of the kind now on trial. A single act of work, done under such circumstances as to amount to a nuisance, is indictable and punishable as such. A man may do such work as he sees fit in private and the law will take no cognizance of it as a nuisance. But when he does the common work of life on Sunday (acts of necessity or charity excepted), and does it in such a public manner as to be open to the observation of the public, the law regards it as prejudicial to public morals and indictable as a nuisance, whether it be a single act or whether it be repeated and continued from Sunday to Sunday. A different rule would allow a person to work all day on Sunday under such circumstances as would amount to a most flagrant desecration of the day and escape punishment on the ground that it was only a single act, etc.
It will be noticed that in this charge the judge attempts to refute the claim that a single act is not indictable as a nuisance. He affirms that it is, and says:—
A different rule would allow a person to work all day on Sunday under such circumstances as would amount to a most flagrant desecration of the day and escape punishment on the ground that it was only a single act.
In this the judge utterly ignores the existence of any statute on the subject, or of a statutory penalty. True, a person might work all day on Sunday and escape indictment on the ground that it was only a single act, but he could not escape the fine provided by the statute, if anybody was willing to sue for the same. His honor thus assumes that the safeguards thrown around Sunday by the legislature are utterly inadequate and that the courts must protect it by the imposition of very materially heavier penalties. This is remarkable enough in any event, but it is the more so when we remember that Judge Parks has, in several ways, given very decided evidence of sympathy with those who are persecuted under this very remarkable so-called Sunday law.
Little effort was made in the recent cases in Rhea County to prove more than one act of work on Sunday, and several of the accused were convicted for a single act and for very trivial acts; acts which taken alone, that is apart from the well-known practice of the defendants to keep another day and to work on Sunday, could scarcely have been held to amount to a “flagrant desecration of the day.” It seems clear that both judge and jury were influenced in this matter by the religious views of the defendants, that is, that they allowed the fact of the religious views of the Adventists to operate against them, and this notwithstanding the fact that the judge several times warned the jury against this. But it only shows how impossible it is to eliminate religious prejudices from the administration of a statute which owes its very existence to religious dogma and to the tendency of the majority to coerce the minority in matters of conscience.
If Judge Parks’ view is to prevail, and if it be the correct one, as a legal proposition, then the decision of the Supreme Court has entirely superseded the statute enacted by the legislature. If a more flagrant violation of constitutional law can be found anywhere in the history of any American State, we would be glad to be referred to it. For, unless Judge Parks greatly errs in his interpretation of the decision of the Supreme Court, that eminent tribunal has usurped the function of the legislative branch of the government, and has both repealed and enacted law.
But we do not want any reader to get the idea that we regard the Sunday statute of Tennessee as made by the legislature of the State as any better in principle than that made by the decisions of the Supreme Court. The principle is precisely the same so far as the right of the State to regulate sabbath observance goes. All such legislation in Tennessee is unconstitutional, whether enacted by the legislature or by the Supreme Court; and we believe that legal minds in that State are fast coming to see it in that light.