The Portland daily press., 1891-07-09
Band concerts and tho law.

SHOP, WorKnouse, warehouse or place of business
Iaveis, or does any work, labor or business on
mat DAY, except works of necessity or charity;
uses any sport, game or recreation or is present
at any dancing, public dinner show or entertain.
ment, as encouraging the same shall be pun-
lshed by nne not exceeding ten dollars.
Inc citation Of this statute brings up the
question of Sunday laws and their interpre-
tatlon, and some Of the opinions Of the Maine
ana Massachusetts courts upon the subject
may prove of interest and value at the pres
ent time. In the first place, what is a work
OF necessity, such as may lawfully be done
on Sunday? The ordinary meaning of neces-
slty is something that is unavoidable or alb
solutely requisite But as long ago as 1909
the Supreme court of Massachusetts decided
That the word was employed ir statute of
that State similar to the one quoted above
not to designate physical and absolute
necessity, "but any labor or work which is
morally 1t and proper to be done on Sunday
under the particular circumstances of each
case" So in regard to travelling. Not all
travelling is forbidden, but only such tray
elling as is not necessary. But it is obvious
that there could never be an alb solute phys-
cal necessity for travelling on Sunday To
construe it to mean that nothing but abso-
lutely necessary tray cling on Sunday is to
be permitted would put Stop to almost, if
not quite. all travel on that day. Under such
construction minister might be punished
tor riding into neighbOring town to conduct
religious service. As with labor so with
travelling. For purpose which is morally
lit 1t is not in violation of the law. OF course
when we come to particularize the purposes
which are morally fit either in the case of
labor or travel, there is difficulty, and the
answers will be affected more or less by
persons ideas in regard to Sunday obser-
vance. There are, however, some specific
decisions by the courts on this subject The
maine Supreme Court in civil suit for
damages received by reason of a defect In
the highway, expressly declared that walk
ing for exercise on Sunday was not in viola
ton OF the statute, though the ground they
put 1t on was that such walking was not
travelling at all. A man had started out
without particular purpose, but to walk
about. While going about the streets he |
stepped into shop and got glass of beer. |
de then continued his walk, and subse-
quenty met with the accident which was |
the foundation OF his suit. The court said |
that II the man was walking out for exer- |
else he was not doing an unlawful act; the
going into the shop and getting q drink may |
nave been unlawful, the tcOurt said, but as it |
dld not contribute to the accidentit was held |
tfat he could recover. On the other hand,
when man had started out 10 walk to a |
particular piace-"one Sweeney's-the court |
held that he was travelling within the |
meaning OF the statute. Riding in a car |
riage appears to be regarded by the courts |
as travelling, without regard to whether the |
person Is bound for some definite place. But |
because 1t Is travelling 1t by no means fol |
lows that 1t is violation of the law. The |
purpose of travelling decides that 1t has |
been held in Massachusetts that the driver |
oil stage coach who was carrying the mail |
was not guilty of unlawful travelling, bat /
the court lntlmated that passengers in the |
coach would not be absolved by the fact that |
the coach was lawfully proceeding from |
place to place. The burden would rest upon |
each OF them to show that his travelling was /
Tor purpose not in contravention of the |
statute. 1t may be said generally that the
courts of Maine and Massachusetts have
been inclined to cOnstrue Sunday laws so as
to preserve the sancity of Sunday, but they
have stopped far short of holding that only |
absolute or stern necessity can justify labor |
or travelling on that day.
On the subject of entertainments we have
not been able to find any decisions, but it is
reasonable to suppose the courts would fol-
low in regard to them the distinctions laid
down in regard to travelling and labor. The
broad definition of the word entertainment
would exclude from Sunday everything
which agreeably engaged the attention. and
that would cover many religious exercises
as we'll as those that were of purely secular
character. The moral fitness of the enter
tainment would undoubtedly determine
with the court the lawfulness or un-
lawfulness of it, and of course here
as in the case of travelling and labor
the views of the judge or judges in re-
gard to Sunday observance would tend in
some degreee to affect the decision.
Some observations made by Chief Justice
Parker of Massachusetts in 1916 in a case
where tithingmen sought to prevent travel
ling on Sunday by stopping the travellers,
are pertinent since they point out the dis
tinction between the Jewish Sabbath and
Christian Sunday, distinction that has
been largely ignored leven by some clergy
men in the recent discussion in this city
but " hich it is important should be borne in
mind. Said that learned Judge
1t Is true, that from the fourth commandment in
the Decalogue 1t may be inferred, that one day in
apart as day of rest from labor But none will
contend that the day therein sanct6ed is the
day which Christians are bound TO keep as holy
times or THAI any Of the rigid laws of Moses rela-
tive 10 the observance of that day are now in
force. II Is enough to observe that by the univer-
sal consent OF Christians, another holy day has
been substituted, and that works OF necessity and
cnarity are not PROCLAMATION OF the Christian Sab
bath; so that poor man would not in these DAYS
be stoned to death for gathering sticks on The
sabbath, although tnat was the punishment in
flieted in the time of Moses and although some of
ancestors so far regarded the law Of Moses of
perpetual Obligation as to propose for their code
the punishment OF death for the crime of disre-
garding or carelessly observing the Sabbath
All arguments drawn from. the Jewish law respec-
ting the Sabbath are, therefore, out of places ex
been recognized or promulgated by our Saviour
or by the legislative authority of our common
record any express precept of our Saviour, or of
his Apostles enjoining the observance of
yet we are far from questioning the re.
llgious obligation which all Christians are
first day of the week, since that IS the time which.
from the day OF the Apostles, was set apart for
that purpose, and since the legislative power or
the uniform usage OF every Christian nation has
eXacted The observance of 1t as such.
In view Of the decisions and dctums of
courts in regard to Sunday laws like the one
we have on our statute it can hardly be said
to be perfectly clear that band concert on
Sunday would be declared illegal per Sc
though perhaps the probability is in that
direction.
But another point is raised, and that is
that the city has no right in its corporate
capacity to raise money by taxation for such
apurpose. 1t seems TO us that this conten-
ton is much stronger than that such a con-
cert is in violation of law, subjecting the
participatOrs in it to fine. Towns and
cities are giving authority to levy taxes for
municipal purposes, and here their authority
ends, unless 1t be extended by special stat
ute. Is band concert municipal purpose
within the meaning of the legislative grant
Ii 1t is not then the city has no legal right
70 raise money for that purpose whether the
concert De given on week day or on Sun
uay' ior there is no claim that there is
speeiai statute comforting that power. We
nave Deen abe to discover no decision cover
ing case exactly, but onein Massachnsptts
comes very near it. In 1857 before the Stato
had passed statute empowering r,,,uio;'"Y