The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-06-13
CITY INTELLIGENCE
For AddNional Otn Ertetllqenee Bee H.tyh -.


showing the state of the law on the interesting
subject of Sunday car travel-
CRY SoLIoIToR's OFFICE, No. 2l2 SoUTH FIFTH
STREET. PHILADELPHIA, May 80, l866.-Hon.
Morton McNlichael, Mayor, etc-Dcar Sir:E
Your favor OF the 26th instant was received by
me on the 28th instant. You therein inform me
that complaints have been lodged before you
against Passenger Railway Company for rum
ming their cars on the Sabbath" You add that
you understand the question involved IN these
complaints to have been determined by judicial
authority, and you therefore request of me IN
formation as to the state of the law, and instruc
tions rs to the action it will be proper for you
to axe in the premises"
As the subject referred to in your favor has
from time to time OccasOned much public dis
cuseon, and aroused considerable feeling, I
have endeavored TO bestow upon 1t a careful
examination.
The 6rst legislative act of our infant colony
was the recognition OF the Christian religion.
1t was passed in 100. Judge Duncan lin III s.
and X. 402) remarks that before this, in l646
Lord Baltimore passed law in Maryland Ia
favor OF religious freedom and it is a memo
Fable TACT that of the hIst legislators who estab
hshed religious freedom one was a Roman
Catholic and the orher Frend.n
The act of 1905 reCites, THAT according to the
example OF the primitive Christians and for the
ease OF creation, every first day OF the week,
commonly called Sunday, all the people shall
abstain from toll AMI labor, that whether mas
tiers, parents, children, servants or Others, they
NAV better dispose themselves to read and hear
the Holy Scripture at home, and frequent such
meetings OF religious worship abroad as may
best SUIT their respective persuasons.n
1t then prohibits the service of process upon
the hrst day of the week, save in the excepted
cases of treason, felony or breach Of the peace,
(sec 4, Smith, 25), and in subsequent sec
tion prohibits drinking and tippling in taverna,
etc. (sec. 8, l Smith, 25).
The act of April 90 1894, prohibits the per-
formance OF. "dty worldly employment or bust.
ness whatsoever on the Lords day, commonly
called Sunday. works of necessity and charity
only excepted
The last act upon this subject was passed
February 26, 1855. 1t prohibits the sale of
liquor ON Sunday, and imposes penalties for the
violation OF its provisions (P. L., 1855, p. $50
1t has no application to the complaints to which
you allude. The legislation which have thus
sketcbed has, OF course, been the subject of fire.
quent discussion in ou1 courts. The only cases,
however, which now occur to me as bearing
directly upon the question at present before you
are Com. Vs. Johnson, and Com. VS.. Jeandelle.
Com. VS.. Johnson is reported in 10 Harris, 102.
IL was proceeding TO recover the fine of 81
imposed by the act of 1894 above quoted, the
defendant being the driver OF an omnibus hired
by the month. 1t was there held, in an able
opinion by the present Chief Justice Woodward,
that the running of public conveyances is
forbidden by the act of 1894, but that travelling
by private conveyance ls not forbidden"
The case OF Com. vs.. Jeandelle is reported in
Am. L. Reg. 6l5. 2 Grant 506 3 Phil. Rep.
5O9, and Legal lntelligencer, vol. xvi, p. 1854.
1t is not often that single individual attains
the legal notoriety enjoyed by this defendant.
OF a breach OF the public peace, for driving a
railway car upon Sunday July II, 1852 Before
the committing magistrate he was bound over.
He thereupon sued out a writ of habeas corpus
belole MIR. Justice Thompson, of the Supreme
Court, and after full hearing he was remanded.
The case then came OR in regular order before
the Criminal Court, al August Sessions, 1859,
and was again heard with great patience by MIR.
Justice Ludlow. The hearing upon both sides
OF this quotto 0eGdtd was exhausted in the argu-
ments OF the array OF learned counsel who re-
presented the prosecution and the defense. The
result was that the defendant was discharged.
This seeming conflict OF decisions is easily re-
conciled by the perusal of the two opinions. Mr..
Justice Thompson decided:-
l. That the law gives to the public the right
OF enjoying the Sabbath as a day OF rest and
religious exercises, free and clear of all dis
turbances from merely unnecessary and unal.
lowed worldly employment and where the law
is contravened in such a manner as to disturb
that enjoyment, by noise or disturbance accom-
panying 1t or incident to it, it is breach of the
peace.
2. 'That driving a public conveyance for
hire subjects the party to the penalty of S4,
imposed by the act of 1884," the latter point
having been already decided in Common Weat tn
vs. johnson, above quoted.
With these rulings Mr.. Justice Ludlow agrees.
The remaining portion OF the syllabus in 2
Grant IT ports Mr.. Justice Thompson as decl-
ding, as matter OF law, "tnat the running OF cars
on passenger railroads on Sunday, by reason OF
the noise accompanying them, is disturbance
OF the public peace of the Sabbath and the rights
o wolshp and OF rest, and the drivers OF such
cars may be arrested and held for a breach ol
the peace"
II this is the law without qualification or ex
ception, then every conductor and driver In
charge of cars running on passenger railway
(and still more clearly every conductor, engi
neer, hremen, and brakesman on all the roads
using locomotives) on Sunday is liable to arrest
1t mIehU be asked, too, how, if this were the law
that very defendant was subsequently discharged
-ior, beyond all question, he had driven a cal
over passenger railway on Sunday.
The answer to this question is, that Mr. Jus
tice Thompson was hearing the case on habea
corpus. He was not holding the Court to which
the defendant had been bound over. II was al
attempt by the defendant TO obtain discharge
IRON his recognlZaLce without appearing before
the Court 10 which he had been held to ans yer
Unless IL clearly appeare that the prisoner wa
''entirely innocent, the Judge was bound to baI
or remand him." Bllghtley's Rep. SO.
An examination OF Mr. Justice thompson
opinion win shoW:-
That tue syllabus. as above quoted is not
CORE ct report Of his ruling, and chat he did no
decide that "the running OF cars, by reason o
the noise accompanying them, is breach o
the peace.n
1he learned judge was speaking of cause il
reference 10 that particular case-not of all cars
but OF that car. He says q Grant, l0):-"Hi
Ueandelles) driving the Ca at the time of tn
arrest was accompanied by noise sufficient, a
The testimony shows at the time and by the eS
perence OF the preceding Sabbath, to greatl
interfere with public worship and disturb tn
people along :he line and was accompanied b
a crowd OF persons and some disOrderly cor
duct II the witnesses are to be believed.
think this constituted breach OF the peace
the Sabbath as ordained aud established b
the act OF 1884, and that, under The circumstance
an arrest was proper. And at page 5l2 he n
marks:-
'1he conclusion have come to is to refus
the discharge OF this man. l no further decid
upon his case than to refuse his discharge La