Commonwealth v. Louisville & Nashville Railroad , 80 Ky. 291 ( 1882 )

JUDGE HABGIS

delivered the following dissenting opinion:

The statute forbids any person, artificial or. natural, from engaging in the ordinary business, trades, or callings of life-on the Sabbath day, and none are exempted out of its provisions except membérs of certain religious societies.

And while entertaining great respect for .the views of the majority of this court, I am constrained to dissent from their opinion in this case, because I do not believe that the work or business of a railroad is either a necessity or charity in the sense of the statute, or that the legislature thought so when it enacted the law.

If the legislature had deemed it proper, it would have exempted railroads from the terms of the statute, but it did not do so, and for this court to interpolate by construction exceptions not contained in the statute, or to determine that the words “necessity or charity” embrace the ordinary work, business, trade, or calling of any person, artificial or natural, is to violate in the boldest form, and with the least legal excuse for it, the rule which forbids “judicial legislation, ’ ’ and which is absolutely necessary to the preservation of the legitimate functions of the legislative department of the government.

I therefore respectfully dissent from the construction put upon the statute by a majority of the court.