Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-06-06

charged from the custody of the sher
if. Most of such reasons relate
solely to alleged irregularities occur
ring on the trial or to errors OF the
trial court in it's procedure, and are
not renewable on habeas corpus
State VS.. Barnes, 5 N. D. $50; State
VS.. Barnes, 3 N. D. 131.
2. 1t is alleged as a ground for the
discharge of the petitioners that they
rendered to the respondent sheriff
the sum of $50 in release OF the re-
straint imposed and that the same was
refused. The allegation is support
ed by the affidavit of counsel, which Is
to the effect that on behalf of the re-
lators he rendered the sum of $50 to
the sheriff in satisfaction of the fine
and in payment of the release of the
petitioners named, and in accordance
with the commitment under which
said sheriff holds said petitioners. and
that said tender was refused on the
ground that it was insufficient. A
sufficient answer to this objection is
that the commitment, as set out in
the petition of the REALTORS, does not
conform to the commi tment under
which the sheriff returns he was re-
straining them; that such commitment
in fact, recited that each of the rela-
tors were sentenced to pay fine OF
$50. No claim is presented that any
tender was made except the sum Of
$50 for the release of both defendants.
and this was insufficient to satisfy the
judgment.
3. 1t is urged that the law in ques-
ton conflicts with the state constitu-
ton, Section of which provides:
1.-THE free exercise and enjoyment of
religious profession and worship. with
out discrimination or preference, shall
be forever guaranteed in this state.
and no person shall be rendered in
competent to be a witness or juror
on account of his opinions on matters
of religious belief; but the liberty OF
conscience hereby secured shall not
| be so construed as to excuse acts OF
! Righteousness, or justify practices in
consistent with the peace or safety
of this state"
Whatever the effect of the provis'
ions of the penal code with reference
to abstaning from labor on the Sab
bath, or first day of the week may be,
we have little doubt that they, as we'll
as all such statutes. were enacted with
the purpose of protecting that part of
the public which consists Of a large
majority, in the exercise of their vary
ing and different methods of religious
worship, and in recognition of the sa-
credness of the Christian Sabbath. A
number of the courts of the different
states have passed upon this question
and have held that this is a Christian
nation and that laws enacted to pre-
vent of the dissertation OF the Sabbath
are valid for that reason. notwithstand
/ ing constitutional provisions similar
to section 4, supra, and others pecu-
liar to different states. The courts
courts of practically all other states
have sustained such statutes as le-
ultimate exercise of the police power
intended to promote the welfare. NOR
ais and sanitary condition OF the peo-
i pie Many of these courts appear to
nave avoided determining its rela-
ton to the question Of religion. We
do not deem it necessary to pass up
on that question. but in view of this
being the first time the law has been
questioned in this court brief ref
erence to the history of legislation on
the subject may not be inappropriate.
and similar reference to few of the
decisions of other jurisdictions will
throw some light upon the general
shubject.
The early Christians substituted the
first day of the week, or Sunday. for
the Jewish Sabbath, or seventh day
of the week, and it has since been OBJ
served as a day of rest and worship
in Christian lan.s and, we think, gen.
orally by civilized peoples. Legis-
lation on the subject was first had in
Rome, about A. D.. 1921. when Con.
stantine the Great commanded all
judges and inhabitants of cities to
rest on the venerable day of the Sun.
Under Theodosius II, 425. games and
theatrical exhibitions were prohibited
and about a century later all labor
was prohibited on that day. In Eng
land laws of this kind were in force
in the reign of Athelstan, 925 to $40
A. d. The statutes of 20 Charles II.
passed in 1878, seems to have laid the
foundation for laws on the subject in
England and in many states Of this
country 1t provided that no crafts
man, artifcer, workman. laborer. or
other person whatsoever, should do or
exercise any worldly labor. business
or worA of their ordinary call1ngs up
on the Lords day or any part thereof
works of necessity and charity ex-
cepted) and placed prohibitions upon
public sales on the Lords day. Fairs
were prohibited in the reign of Henry
vi, and amusements in the first year
of Charles I. On the immigration
from England to America the act of
1873 was taken as a model in most
of the colonies, its terms. however,
being varied somewhat: but Sun.
day law was enacted in each of the
colonies and such law is found in
the. statutes of every state in the
Union. 1t has been attacked In
nearly every state and almost as Oft
en- sustained. Where not sustained,
courts have based their decisions on
some peculiar or special feature not
applicable here. Without quoting
at great length from authorities ex-