Syllabus. Richmond. PIRKEY BROTHERS v. COMMONWEALTH. November 16, 1922. 1. SUNDAY-Police Power-Sunday Law Valid as Exercise of the Police Power. The Virginia Sunday law (Code of 1919, section 4570) is a valid exercise of the police power of the State and constitutional. 2. SUNDAY-Police Power-Sunday Law Valid as Exercise of the Police Power-Religious Freedom.-While the constitutionality of the Sunday law (section 4570 of the Code of 1919) can be sustained as a valid exercise of the police power, its provisions cannot be enforced as a religious observance, as that is forbidden by the constitutional provision on the subject of religious freedom. 3. SUNDAY LAW-Enforcement-Moral Fitness.-While the provisions of the Sunday law cannot be enforced as a religious observance, the great moral force that is back of it will make itself felt in its enforcement in conformity with the views of that force. Issues of fact arising under the statute will have to be decided by juries who have been selected for their fitness for the service from the whole body of the people, and who, in this service, reflect the community opinion of moral fitness and propriety. 4. SUNDAY LAW-Necessity-Meaning of "Necessity"—Construed with Reference to Present Conditions.-The word "necessity" as used in the Sunday law (section 4570 of the Code of 1919), excepting works of necessity from the operation of the law, does not mean the same thing now as it did when the original act was passed in 1779. Many things that were deemed luxuries then, or had no existence at all, are now deemed necessaries. For example, street railways, telegraphs and telephones. The word is elastic and relative, and must be construed with reference to the conditions under which we live, and yet the elasticity must not be extended so far as to cover that which is not needful, but simply desirable, and thereby defeat the manifest purpose of the statute to set apart Sunday as a day of rest from ordinary labor. 5. SUNDAY LAW-Meaning of "Necessity"-Physical Necessity or Moral Fitness-Governed by Circumstances of Particular Case.-The "necessity," as that term is used in the Sunday law, excepting works of necessity from the operation of the statute (section 4570 of the Code of 1919), means not a physical and absolute necessity, but a moral Syllabus. fitness or propriety of the work and labor done under the circumstances of each particular case. No fixed and unvarying definition of "necessity" as used in the statute can be given. What may be a necessity in one place may not be in another. Every case must stand on its own peculiar facts and circumstances. 6. SUNDAY LAW-Construction-Reasonable Construction.-The Sunday law should have a reasonable construction so as to promote the end for which it was enacted, and thus cover every class of labor at every trade, calling, or business not excepted by the statute. 7. SUNDAY LAW-Necessity-Meaning of "Necessity."-To escape the penalty pronounced by the statute, the labor performed must be of the class excepted by the statute, or recognized by the community as a necessity. 8. SUNDAY LAW-Necessity Question of Law or Fact.-What is or is not a necessity is generally a question of fact for the jury, and not one of law for the court. There are cases, however, where the question is one of law for the court. Where the act done is plainly a violation of the statute, as where a contractor, without emergency, is running a steam shovel on Sunday, or the act is plainly one of necessity, as where the owner lifts his ox out of the ditch, in either case, the question is one of law for the court. But if the act be one about which fair-minded men might reasonably differ as to whether or not it is a work of necessity, then it is a question of fact for the jury. 9. SUNDAY LAW-Violation a Crime-Presumptions and Burden of Proof.— Formerly, a violation of the Sunday law was not made a crime, but simply entailed a forfeiture of an insignificant sum. But by section 4570, Code of 1919, a violation of the act is now made a criminal offense, and the same rules are applicable as to other criminal cases. The accused is presumed to be innocent until his guilt is established, and the burden is upon the Commonwealth to prove his guilt beyond a reasonable doubt. There is no burden on the accused to prove even by a preponderance of the evidence that the work done by him on Sunday was a work of "necessity or charity." If, upon the whole evidence in the case, both for the Commonwealth and the accused, the jury, after a careful and deliberate consideration of the evidence and arguments of counsel, and a full and free conference among themselves, honestly entertain a reasonable doubt as to the guilt of the accused, he cannot be rightfully convicted. 10. SUNDAY LAW-Keeping Open a Cave and Charging for Admission-Case at Bar.-In the instant case defendants were charged with a violation of the Sunday law in keeping open a cave, charging admission fees of visitors, providing guides, and lighting the cave with electricity, on Sunday. The case was submitted to the Supreme Court of Appeals upon a verdict of guilty, accompanied by a certificate of facts. From these facts reasonably fair-minded men might draw different conclusions as to the ultimate fact to be ascertained, to Opinion. wit, was the work done one of necessity in view of modern conditions of life? The Supreme Court of Appeals, however, did not feel warranted in interfering with the verdict of the jury, not being able to say that the verdict of the jury, approved by the trial court, was erroneous, and in such cases the Code of 1919, section 4937, requires an affirmation of the judgment. Error to a judgment of the Circuit Court of Augusta county. The opinion states the case. Affirmed. Wm. V. Ford and Timberlake & Nelson, for the plaintiffs in error. John R. Saunders, Attorney-General, J. D. Hank, Jr., Assistant Attorney-General, and Leon M. Bazile, Second Assistant Attorney-General, for the Commonwealth. BURKS, J., delivered the opinion of the court. The plaintiffs in error were convicted of violating the Sunday law, and sentenced to pay a fine of $250.00. The case has been submitted to this court upon the following certificate of facts: "The facts of this case, so far as they are material to be considered, are as follows: "Weyer's Cave, or Grottoes of the Shenandoah, are situated in the northeast portion of Augusta county and are owned by the defendants, who in order to make them more attractive for tourists and others have installed electric lights and have advertised them extensively. They are kept open for tourists and others during the warm season of the year. Admission fees are charged by the defendants and have to be paid before those who desire to see them can enter. Guides were present to conduct parties through this cave. The ad Opinion. vertisements set forth the fact that these caves are open for visitors on Sundays, and on Sundays, as a general proposition, the attendance was considerably larger than on other days. To this some of the churches in this community objected and sent committees to the defendants to ask them to close on Sundays. This the defendants declined to do. Thereupon the warrant in this case was sued out. On the Sunday charged in the warrant, visitors who paid admission fees entered this cave, which was lighted up by electricity for the occasion. "The cause came on to be heard, the jury returned a verdict of guilty, judgment was entered thereon and an appeal noted. "It is agreed between counsel on both sides that this appeal shall be presented to the court of appeals to determine, under the foregoing facts, the simple question whether the keeping open of these caverns and admission to them of visitors on Sunday, constitute a violation of the statute commonly known as the 'Sunday observance law.'" The statute under which the conviction was had is section 4570 of the Code, which is as follows: "If a person on a Sunday be found laboring at any trade or calling, or employ his apprentices or servants in labor or other business, except in household or other work of necessity or charity, he shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than five dollars for each offense. Every day any person or servant or apprentice is so employed shall constitute a distinct offense and the court in which or the justice by whom any judgment of conviction is rendered may require of the person so convicted a recognizance in a penalty of not less than one hundred or more than five thousand dollars, with or without se Opinion. curity, conditioned that such person shall be of good behavior, and especially to refrain from a repetition of such offense, for a period not exceeding twelve months. This section shall not apply to furnaces, kilns, plants and other business of like kind that may be necessary to be conducted on Sunday." [1, 2] The constitutional validity of the statute has not been called in question, and we do not doubt that it is a valid exercise of the police power of the State. Its provisions, however, cannot be enforced as a religious observance, as that is forbidden by our laws on the subject of religious freedom. But from the creation of the State until the present time, this State has been recognized as a Christian State, at least in the sense that the great body of its citizens adhere to the tenets of the Christian religion, and, while at all times according freedom of conscience to all men, it has so far respected the opinions of this great body of its citizens as always to preserve from desecration the sanctity of Sunday which they regard as holy. The first declaration of religious freedom was on June 12, 1776 (1 Rev. Code 1819, p. 32, section 16), when it became a part of · the bill of rights, and it has continued as a part of that bill until the present time, and is now section 16 of the present Constitution. Mr. Jefferson's great statute of religious freedom was enacted December 16, 1785, and has been retained in its original form in every revision of the laws from that time until now, and constitutes section 34 of the present Code. Code 1819, chapter 31, section 1; Code 1849, chapter 76, section 1; Code 1887, section 1394; Code 1919, section 34. The Sunday statute was enacted in 1779 (12 Hen. Stat. 336-7), after the adoption of the bill of rights, but before the adoption of Mr. Jefferson's statute of religious freedom, and has continued very nearly in its original form in every |