Frolickstein v. Mayor of Mobile , 40 Ala. 725 ( 1867 )

A. J. WALKER, C. J.

The third section of the first article of the constitution prescribes, “that no person within the State shall, upon auy pretense whatever, * * * * * be hurt, molested, or restrained, in his religious sentiments or persuasions, provided he does not disturb others in their religious worship.” It is said that the appellant is a pious Jew, whose religious sentiments and persuasions lead him to the conviction that it is his duty to labor the other six days in the week besides Saturday, and that he is therefore restrained in his religious sentiments or persuasions by a municipal regulation, which forbids him to sell goods from his store on the first day of the week. The law does not hurt, molest, or restrain the appellant, in the entertainment or expression of what he regards as a religious sentiment or persuasion. It simply prohibits the performance of an act, which he supposes to be required by a religious duty. It can not be that the constitution designed to exclude from the prohibitory power of legislation every act, which a sentiment or persuasion, regarded by any one as of a religious character, may dictate. Such a doctrine would lead to the constrained toleration of crime, equally abhorrent to the Jew and tbe Christian. Acts must at least be the fruit of a sentiment or persuasion in fact religious, in order that an immunity from legislative prohibition may be claimed. It would be subversive of good government to subordinate the power of restraining acts prejudicial to the public welfare, and productive of social injury, to the convictions of each individual as to the acts which religious sentiment may demand. However much we may respect the conscientiousness and religious devotion of the appellant, we can not regard the rule which he prescribes for himself, otherwise than as an industrial regulation, which is not required by a sentiment in fact religious, although so conscientiously regarded by him. We do not think that the terms used in the constitution are susceptible of such meaning as would negative the power of the legislature to prohibit the act done by the appellant on Sunday.

The legally constrained abstinence from certain worldly employments on the first day of the week can not be justilled upon the ground, that such abstinence is enjoined by the Christian religion. The legislature is under constitutional restrictions against compelling the observance of a Christian, or Jewish, or any other religious institution, because it is such. But the legislature is not prohibited from making municipal regulations, because they have the sanction also of a religious society. The legislation on the subject of abstaining from worldly employments on the first day of the week is referred to the police power of the legislature. It has its sanction in' the teaching of experience, that the general welfare and the good of society require a suspension of labor and business for one day in seven, and that that day should be one of uniform observance. The exercise of the power to enforce this theory of public good would not infringe the constitution, whether the designated day should be the Christian or the Jewish Sabbath,

Affirmed.