Johnson v. Brown , 13 Kan. 529 ( 1874 )

The opinion of the court was delivered by

Brewer, J.:

The question in this case is, whether a contract made on Sunday is valid. The services contracted for' were not necessarily or by the contemplation of the parties to be rendered, and were not in fact rendered, on Sunday. For while‘there is a conflict in the testimony as to when the services were rendered, the verdict of the jury, under the instructions, settles that they were not rendered on Sunday. At common law a contract on Sunday was valid; but in England, and in every state of the Union, have been enacted what are familiarly known as Sunday Laws, for the prevention of labor and business upon that day. Most of these statutes prohibit both labor and business; and under the latter .term the making of contracts has in many states been decided to be within the prohibition. Our own statute simply prohibits labor. It reads —

“ Sec. 255. Every person who shall either labor himself, or compel his apprentice, servant, or any other person under his charge or control, to labor or perform any work * * * on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor,” etc. (Gen. Stat., ch. 31, p. 373.)

In this it closely resembles the statutes of New York, Ohio and Missouri, and the decisions in those states place the making of a contract outside the limits of the prohibition. Merritt v. Earle, 29 N. Y., 120; Kaufman v. Haven, 30 Mo., 387; Bloom v. Richards, 2 Ohio St., 387. In the latter case is a lengthy and able opinion from Judge Thurman, pointing out the distinction between the terms “labor” and “business,” as well as discussing generally the subject of Sunday laws. We refer to that opinion as a clear and convincing argument that the making of a contract is not within the prohibition of a statute like ours. The thing prohibited is labor, and a contract made on any day to perform labor on Sunday, save “the household offices of daily necessity, or other works of necessity or charity,” is a contract to do a thing prohibited, and therefore void; but a contract made on Sunday to perform labor on any other day, is valid.

The order of the district court will be reversed, and the case remanded with instructions to affirm the judgment of the justice.

All the Justices concurring.