San Andreas independent., 1858-07-24

OPINION oFJUDGE FIELD ON THE Sun
DAY LAw.-The anxiously looked for dis
senting opinion of Judge Field, says the
Sacramento Mercury, on the Sunday law,
has been rendered, and we regret that its
great length, which is almost equivalent
to one page of our paper, prevents its
publication in the Mercury entire The
opinion exhibits great research, all the
authorities upon the question at issue be-
ing carefully arranged, and the context
throughout marked with that legal acumen
which so eminently characterizes the dis
senting Judge. The learned Judge starts
out with a review of the opinion of the
majority of the Court that the Sunday law
was in direct violation Of she first and
fourth sections of the Constitution, the
former of which declares that g all men are
by nature free and independent, and have
certain inalienable rights, among which
are those of enjoying and defending life
and liberty; acquiring, possessing and pro-
tecting property and pursuing and OBJ
tanning safety and happiness" and the
latter that "the free exercise and enjoy
ment Of religious profession and worship
without discrimination or preferences shall
forever be allowed in this State"
After an eloquent eulogium upon the
wisdom and soundness of the provisions of
she Constitution, the Judge arrives at the
conclusion that
"The Legislature possesses the undoubt-
ed right to pass laws for the preservation
of health and the promotion of good NOR
ais, and it is of opinion that periodical
cessation from labor will tend to both, and
thinks proper to carry its opinion into a
statutory enactment on the subject, there
is no power, outside Of its constituents,
which can sit in judgment upon its ac-
tion. 1t is not for the judiciary to assume
a wisdom which it denies to the Legisla-
ture, and exercise supervision over the
discretion of the latter 1t is not the
province of the judiciary to pass upon the
wisdom and policy Of legislation, and when
1t does so it usurps power never confer
red by the Constitution
Further on the Judge continues:
" If it be admitted that the Legislature
possesses the right to restrain each one in
MS freedom of conduct only SO far as is
necessary to secure protection to all others,
from every species of danger to person,
health and property, no Interference can
be drawn against the validity of the act
under consideration The character and
mode of protection, and what is dangerous
to the person, or to health and property,
must necessarily be left to its determine
tion, and in the first section of the Consti
tuition no inhibition to the exercise of its
power in this respect can be found.
The prohibition of secular business on
Sunday is advocated on the ground that
by it the general welfare is advanced, la
Dor protected and the moral and physical
well being of society promoted The Leg
lslature has so considered it, and the Judi
clary cannot say that the Legislature was
mistaken and therefore the act is uncon-
stltutIonal, without passing out of its le-
gltlmate sphere, and assuming right to
supervise the exercise of legislative dis
cretlon in matters of mere expediency.
Such right, as | have already observed,
does not belong to the judiciary. It's as
sumption would be usurpation, and we'll
calculated to lessen the just influence
which the judiciary should possess in
constitutional government"
The following is the conclusion of the
opinion:
" am of opinion that the act for the
better observance of the Sabbath is con-
stftutlonal, and that the petitioner New
man, arrested and imprisoned for viola
tion of the Sunday law and brought be-
fore the Court on writ of haJeas corpus1
ought to be remanded. FIELD, j.