#### Rhodes v. Hope.

Opinion delivered July 12, 1926.

1. Sunday&emdash;sale op GASOLiNE.-A-fJnder a ■ municipal ordinance pno- ... , hi’biting. the., sale, of *goods,., wares, and.*merchandise *on*Sunday, .... the .sale of gasoline to physicians, officers, tourists. and patrons of defendant’s garage is not within the exception "allowing Sales in cases of necessity or charity.

2? "Sunday&emdash;Durden op proving necessity.&emdash;In a prosecution for "" selling gasoline on Sunday in violation"óf-a city’ordinance,-the burden is bn ’the .defendant to bring .-himself, within the .excep.tion in. cases of sales fpr charity, or necessity,.; : . . ¡ j-

' Appéáh frohi ' Hempstead "'Circuit" 'Court'; *H. '*McCóllúm',ydñdge;

affirmed.’

*'Steve 'Gafrigan,*for appellant.

Z7. *A. Gentry*and *J. D. Montgomery,*for app'ellée.' ’

Humphreys, J.

Appéllant’‘was convicted' in the máyor’s court of’ Hope' for’ Violating á'Sundáy1clbsing ordinance winch prohibited, tinder penalty, the sálé":óf goods, wares," and' merchandise on. the Sabbath' day, éxCept 'for Charity -or ‘necessity;''- It- wás’-stibséqtiently ' p'rovitiéd in'the- of dinanee' that'‘charity - or: necessity -on ■ 'the -part' of -the consumer might be - shown» tin < justification of such”'sales. The cause was appealed- to '.the* cirouit *755court, of Hempstead County; where the - jury- was instructed to return a verdict of guilty upon' the testimony adduced in the trial of the cause, which was accordingly-done. From the consequent-judgment- of- conviction an-appeal has been duly'.prosecuted to this court.

' The record reflects that appellant conducted a filling station in Hope,'which he kept open on the -Sabbath day to-.dispense gasoline' to physicians, officers of the' law, tourists, arid patrons of his garage,' which he fan in connection'with the filling station. Before selling gas'to' these persons,' he required each brie to sign a statement that it was necessary for him tp have it/and then only sóld to the ones he believed signed the 'statement in good faith. The record does not show the: particular cireúiristances under Which 'the; sales wére 'madó. • In fact, no effort was put forth' to shqW that the sales ;we're miade on ácéount of unavoidable emérgencies', 'bringing them within the fule of necessity in ' Sunday observance-statutes.

Appellant contends for’ a reversal’ of the 'judgment Pri'the theory'that, this being the motor age,-the sale of gásólíne on" Sunday is "an inherent, essential, and vital necessity. It will fió observed' that the ordinance’ does-not attempt to exempt from its provisions any particular commodity. It does not pretend to except the sale of gasoline from the penalties imposed. On the contrary, it penalizes one who sells any goods, wares, and merchandise on -Sunday. The. exception in the ordinance is that “charity or necessity on the part of the customer may be shown'in justification Pf the violation of this ordinance.” Food is as- esséntial to the life of man as gasolirie is to the activity of an automobile, yet this' court ruled, in *Petty*v. *State,*58 Ark. 1, 22 S. W. 654, that it was unlawful to keep a butcher shop open on Sunday fof the purpose..of selling meats and vegetables. It has never been the law in. this State that one can sell gasoline on Sunday, within the meaning of Sunday, restrictive-laws, because automobile’s are generally and almost universally used for traveling upon its highways.

*756Appellant also contends for a reversal of the judgment upon the théory that the exemption clause in the' ordinance allowing sales of goods, wares, and merchandise in cases of necessity included sales to physicians, officers, tourists, and' persons who kept automobiles in appellant’s garage over night. This court had an exemption clause' of this character in a Sunday restrictive law before it for construction in the case of *State*v. *Goff,*20 Ark. 290, and in construing the clause said: . “ The husbandman should look forward to the ripening of his grain as an event which must happen, and should make such timely provision for the harvest as not to violate the Sabbath. This is. a duty enjoined alike upon the poor and the rich.” The classes referred to above weré not within the exception of the necessity clause' contained in the ordinance, and no such emergency was shown by the testimony as brought them within the exception, so appellant violated the Sabbath by selling them gasoline on Sunday. The undisputed testimony disclosed a violation of the. ordinance by appellant, hence thé court did not err in peremptorily instructing a verdict of guilty. The burden was upon appellant to bring himself within the exception. The judgment is affirmed.