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1899.

MURPHY V. MASSACHUSETTS.

Hurtado v. California, 110 U. S. 516, 28 | whether that or any other action of that
L. ed. 232, 4 Sup. Ct. Rep. 111, 292; Hodgson
v. Vermont, 168 U. S. 262, 42 L. ed. 461, 18
Sup. Ct. Rep. 80.

The state has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights, or conflict with specific and applicable provisions of the Federal Constitution.

Brown v. New Jersey, 175 U. S. 172, 44 L. ed. 119, 20 Sup. Ct. Rep. 77; Re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930; Re Converse, 137 U. S. 624, 34 L. ed. 796, 11 Sup. Ct. Rep. 191; Moore v. Missouri, 159 U. S. 673, 40 L. ed. 301, 16 Sup. Ct. Rep. 179.

It is well settled that the 14th Amendment does not pretend to secure to all persons in the United States the benefit of the same laws and the same remedies, but only that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.

Missouri v. Lewis, 101 U. S. 22, 25 L. ed.

989.

The term jeopardy "has no relation to the reversal of an erroneous judgment and pronouncing a legal one pursuant to a legal conviction."

McKee v. People, 32 N. Y. 239; State v. Lee, 65 Conn. 265, 27 L. R. A. 498, 30 Atl. 1110.

Consistent with the principle that when a controversy is finally determined it shall not be reopened, statutes authorizing retrials and resentences have been in force from time immemorial. Even the right of the government to a new trial after a verdict of not guilty has been upheld.

State v. Lee, 65 Conn. 265, 27 L. R. A. 498, 30 Atl. 1110; United States v. Sanges, 144 U. S. 310, 36 L. ed. 445, 12 Sup. Ct. Rep. 609. The privilege of error was that of plaintiff in error alone. It was his right to have accepted the original sentence, and, having served it, to end his jeopardy, and thereupon to have been exempt from further proceed

ings.

Com. v. Loud, 3 Met. 328, 37 Am. Dec. 139.

[156] *Mr. Chief Justice Fuller delivered the opinion of the court:

The specification of errors in the brief of "The contention of counsel is as follows: the plaintiff in error is that the sentence under which he is now held puts him twice in [157]jeopardy, and that such double jeopardy abridges his privileges and immunities as a citizen of the United States, and deprives him of his liberty without due process of

law."

Laying out of view the suggestion that the immunity from double jeopardy or double punishment of a citizen of Massachusetts, in Massachusetts, is an immunity possessed by him as a citizen of the United States as contradistinguished from a citizen of Massachusetts, we inquire whether any law of Massachusetts abridges such an immunity, and

commonwealth deprives plaintiff in error of
his liberty without due process of law. If
there be no such law, and if he is suffering
no such deprivation, we need not be curious
in explanation of the particular ground of
our exercise of jurisdiction.

The statutes of Massachusetts have pro-
vided since 1851 that "when a final judg-
ment in a criminal case is reversed by the
supreme judicial court on account of error
in the sentence, the court may render such
judgment therein as should have been ren-
dered, or may remand the case for that pur-
pose to the court before which the conviction
was had." Acts 1851, chap. 87; Pub. Stat.
chap. 187, § 13.

In this case it was on account of error in the sentence as originally imposed that that sentence was set aside. All the proceedings prior thereto stood unimpugned, and the superior court merely rendered the judgment which should have been rendered before. And this was done under the statute by direction of the supreme judicial court, whose interposition had been invoked by plaintiff in error.

The legal effect of the statute was to make it a condition of the bringing of writs of error in criminal cases that, if the error was one in the award of punishment only, that error should be corrected, and, as remarked of right. by Chief Justice Shaw, this did not disturb fundamental principles the Jacquins v. Com. 9 Cush. 279. Indeed, in many jurisdictions it has been held that the appellate court has the power, when there has been an erroneous sentence, to remand the case to the trial court for sentence according to law. Reynolds v. United States, 98 U. S. 145, 168, 25 L. ed. 244, 251; Re Bonner, 151 U. S. 242, 38 L. ed. 149, 14 Sup. Ct. Rep. 323; Henderson v. *People, 165 Ill. 607,[158] 46 N. E. 711; Beale v. Com. 25 Pa. 11. And we have repeatedly decided that the review by an appellate court of the final judgment

McKane v. Durs

in a criminal case, however grave the offense
of which the accused is convicted, is not a
necessary element of due process of law, and
that the right of appeal may be accorded by
as the state deems proper.
the state to the accused upon such conditions
ton, 153 U. S. 684, 38 L. ed. 867, 14 Sup. Ct.
Rep. 913; Andrews v. Swartz, 156 U. S. 272,
39 L. ed. 422, 15 Sup. Ct. Rep. 389; Kohl v.
Lehlback, 160 U. S. 297, 40 L. ed. 433, 16
Sup. Ct. Rep. 304.

As this statute was reasonable, was intended for the benefit of the accused, as well as of the community, and was entirely within the admitted powers of the state, we are unable to see that it is in itself open to attack as being unconstitutional; and as this plaintiff in error set the proceedings in question in motion, and they conformed to the statute, we do not perceive how they can be regarded as otherwise than valid.

In prosecuting his former writ of error, plaintiff in error voluntarily accepted the result, and it is well settled that a convicted person cannot by his own act avoid the

713

jeopardy in which he stands, and then as-tence against them were reversed, and the sert it as a bar to subsequent jeopardy.

indictment ordered to be dismissed. How far, if they had taken no steps to set aside the proceedings in the former case, the verdict and sentence therein could have been

United States v. Ball, 163 U. S. 662, sub nom. Ball v. United States, 41 L. ed. 300, 16 Sup. Ct. Rep. 1192, illustrates the rule. There Millard F. Ball, John C. Ball, and Rob-held to bar a new indictment against them ert E. Boutwell had been indicted, in the circuit court of the United States for the eastern district of Texas, for the murder of one Box, and on trial Millard F. Ball had been acquitted and discharged, and John C. Ball and Boutwell convicted and sentenced to death. The condemned having brought the case here on error, it was held that the indictment was fatally defective, and the judg. ment was reversed and the cause remanded with a direction to quash the indictment. Ball v. United States, 140 U. S. 118, 35 L. ed. 377, 11 Sup. Ct. Rep. 761. The mandate went down, the indictment was dismissed, and a new indictment was returned against all three defendants. To this Millard F. Ball filed a plea of former jeopardy and former acquittal, and John C. Ball and Boutwell filed a plea of former jeopardy by reason of their trial and conviction upon the former indictment and of the dismissal of that indictment. Both these pleas were overruled, defendants pleaded not guilty, were convicted, and sentenced to death. [159] *On their writ of error this court held that a general verdict of acquittal upon the issue of not guilty to an indictment undertaking to charge murder, and not objected to before the verdict as insufficient in that respect, is a bar to a second indictment for the same killing. Mr. Justice Gray, delivering the opinion, said:

need not be considered, because it is quite
clear that a defendant who procures a judg
ment against him upon an indictment to be
set aside may be tried anew upon the same
indictment, or upon another indictment, for
the same offense of which he had been con-
victed. Hopt v. Utah, 104 U. S. 631, 26 L.
ed. 873, 110 U. S. 574, 28 L. ed. 262, 4 Sup.
Ct. Rep. 202, 114 U. S. 488, 29 L. ed. 183,
5 Sup. Ct. Rep. 972, 120 U. S. 430, 30 L. ed.
708, 7 Sup. Ct. Rep. 614; Reg. v. Drury, 3
Cox, *C. C. 544, 3 Car. & K. 193; Com. v.[160]
Gould, 12 Gray, 171."

Tested by these rulings, plaintiff in error's original sentence was not void, but voidable, and if the sentence had been complied with he could not have been punished again for the same offense. Com. v. Loud, 3 Met. 328, 37 Am. Dec. 139. But as the original sentence was set aside at his own instance, he could not allege that he had been in legal jeopardy by reason thereof.

In Ex parte Lange, 18 Wall. 163, 21 L. ed. 872, Lange had been found guilty of an offense which was punishable by imprisonment or fine, but the circuit court sentenced him to imprisonment and fine. He paid the fine, and thereafter the circuit court vacated the former judgment, and sentenced him again to imprisonment only. It was held that it was a fundamental principle that no man could be twice punished by judicial judgments for the same offense, and that when a judgment had been executed by full satisfaction of one of the alternative penalties of the law, the court could not change the judgment so as to impose another. The present case does not fall within that decision, for here an erroneous judgment was vacated on the application of the accused; the original sentence had not been fully satisfied; and the second sentence was rendered in pursuance of the applicable statute.

"An acquittal before a court having no jurisdiction is, of course, like all the proceed ings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense. Com. v. Peters, 12 Met. 387; 2 Hawk. P. C. chap. 35, § 3; 1 Bishop, Crim. Law, § 1028. But although the indictment was fatally defective, yet, if the court had jurisdiction of the cause, and of the party, its judgment is not void, but only voidable by writ of error, and, until so avoided, canWe repeat that this is not a case in which not be collaterally impeached. If the judg-second or additional sentence for the same the court undertook to impose in invitum a ment is upon a verdict of guilty, and unre-offense, or to substitute one sentence for anversed, it stands good, and warrants the punishment of the defendant accordingly, and he could not be discharged by a writ of habeas corpus. Ex parte Parks, 93 U. S. 18, 23 L. ed. 787. If the judgment is upon an acquittal, the defendant, indeed, will not seek to have it reversed; and the government cannot. United States v. Sanges, 144 U. S. 310, 36 L. ed. 445, 12 Sup. Ct. Rep. 609."

The judgment was reversed as to Millard F. Ball, and judgment rendered for him upon his plea of former acquittal.

But as to John C. Ball and Boutwell it was ruled that the circuit court rightly overruled their plea of former jeopardy, and it was said:

"Their plea of former conviction cannot be sustained, because upon a writ of error, sued out by themselves, the judgment and sen

availed himself of his right to have the first other. On the contrary, plaintiff in error sentence annulled so that another sentence might be rendered. And as the decision which he sought and obtained involved the determination that he had been improperly sentenced under chapter 504 of the Statutes of 1895, providing for so-called indetermi nate sentences, but should have been sentenced under antecedent statutes, which differed from that, it followed that the second sentence must be a new sentence to the extent of those differences, and might turn out to be for a longer period of imprisonment.

Chapter 504 of the Statutes of 1895 provided for the establishment by the court of a maximum and minimum term of imprison-[161] ment, and for a permit to the convict to be at liberty after the expiration of the minimum term, some changes being made in this

regard by chapter 371 of the Statutes of 1898. Section 20 of chapter 222 of the Public Statutes, in force when the offenses charged were committed, provided for certain deductions to be made for good behavior. These and other statutes bearing on the subject are fully set forth and examined in Murphy v. Com. 172 Mass. 264, 52 N. E. 505, 43 L. R. A. 154. And it is insisted that, under the present sentence, even if the prisoner received the maximum deduction, he cannot be released as soon as he might have been released under the original sentence, and that, moreover, he cannot receive as large deductions under this sentence as he might have received if it had been pronounced in the first instance.

But we agree with the supreme judicial court in the opinion that even if this were so, it would make no difference in principle so far as the validity of the second sentence was concerned.

In Jacquins' Case, 9 Cush. 279, the supreme judicial court, in lieu of the prior sentences, sentenced the defendant to certain years of imprisonment, "the term to be computed from the time when the first sentence commenced its operation."

In the case at bar the accused was originally sentenced to imprisonment for the term of not less than ten nor more than fifteen years. This being set aside, and the superior court, being manifestly of opinion that imprisonment for twelve years and six months was the punishment demanded under the circumstances, deducted from twelve years and six months two years, seven months, and nine days, which he had already served, and sentenced him to nine years, ten months, and twenty-one days. As the original sentence had been vacated on the application of the accused, it is clear that if the second sentence were productive of any injustice the remedy was to be ob tained in another quarter and did not rest

with the court.

And so as to the infliction of one day's solitary confinement. The Massachusetts statutes provide that where the punishment of imprisonment in the state prison is awarded, solitary confinement not exceeding twenty days at a time shall form part thereof. This requirement was complied with here by the infliction of one day. This was part of the sentence, but not in itself a distinct and separate punishment, and when the sentence was vacated the second sentence necessarily contained some solitary confinement as part of the imprisonment. Apparently this might have been dispensed with by the consent of the convict, but this he refused to give.

"It

In People ex rel. Trezza v. Brush, 128 N. Y. 529, 536, 28 N. E. 533, Trezza had been sentenced to death, and prosecuted an appeal to the court of appeals of New York, pending which he was taken to the state prison and detained in close confinement. He applied for the writ of habeas corpus on the ground that he had been once punished, which was denied. The court of appeals held that by the statute an appeal from a conviction in a capital case stayed the judgment of death only, and not that part of the judgment which provided for the custody of the defendant between his removal to the state prison and his execution; and Andrews, J., speaking for the court, said: not infrequently happens that the execution of a sentence to imprisonment continues notwithstanding an appeal. The convict, if he obtains a reversal of the judgment, and is again convicted on a second trial, may be sentenced to a new term of imprisonment, and the court is not bound to regulate the[163] second sentence in view of the fact that the convict has already suffered imprisonment under the first sentence. The resentence in the present case was rendered necessary by reason of the fact that Trezza, by his own act in his own interest, had by his appeal prevented the execution of the death penalty at the time fixed by the first sentence."

Trezza also applied to the circuit court of the United States for the southern district of New York for a writ of habeas corpus, which the court refused to grant, and its order was affirmed by this court on appeal. 142 U. S. 160, 35 L. ed. 974, 12 Sup. Ct. Rep. 158.

The superior court, being obliged to render a specific sentence, deducted the time Murphy had served, notwithstanding the case really occupied the same posture as if he had sued out his writ of error on the day he was first sentenced, and the mere fact that by reason of his delay in doing so he 2]had served a *portion of the erroneous sen- In McElvaine v. Brush, 142 U. S. 155, 35 tence could not entitle him to assert that he L. ed. 971, 12 Sup. Ct. Rep. 156, McElvaine was being twice punished. Perhaps the had been sentenced to death, and the judg court was the more moved to do this because ment was reversed and a new trial granted. six months after Murphy had been sent to He was again convicted and sentenced, and the state prison the supreme judicial court the judgment affirmed on appeal. 125 N. indicated in Com. v. Brown, 167 Mass. 144, Y. 596, 26 N. E. 929. McElvaine presented 45 N. E. 1, that the indeterminate sentence his petition for habeas corpus to the circuit act might be applicable to convictions for court, which was denied, and the case offenses committed prior to its passage, al- brought to this court. The order was afthough the question was not definitely pre-firmed, and we said, among other things, sented and disposed of, and then to the contrary, until raised on Murphy's writ of error. 172 Mass. 264, 52 N. E. 505, 43 L. R. A. 154. But, however that may be, the plea of former jeopardy or of former conviction cannot be maintained because of service of part of a sentence reversed or vacated on the prisoner's own application.

that "so far as the confinement had taken
place under the first sentence and warrant,
that resulted from the voluntary act of the
petitioner in prosecuting an appeal."

In Brown v. New Jersey, 175 U. S. 172, ante,
119, 20 Sup. Ct. Rep. 77, it was reiterated
that "the state has full control over the pro-
cedure in its courts, both in civil and crimi-

[164]

nal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights, or conflict with specific and applicable provisions of the Federal Constitution." We find no such denial or conflict in this case. As we have said, plaintiff in error must be deemed to have sought a correction of the original erroneous judgment, and held to abide the consequences. He seems to have then supposed that it might be decided that the prior statutes were repealed by the act of 1895, and that as he could not be sentenced under that act he might be discharged altogether. In this it turned out that he was mistaken, as the supreme judicial court adjudged that the prior statutes were still in force so far as he was concerned, and we concur with that court in holding that his present contention is equally unavailing to effect his release.

Judgment affirmed.

*PAUL J. PETIT, Piff. in Err.,

v.

STATE OF MINNESOTA.

(See S. C Reporter's ed. 164-168.)

on Sunday for the purpose of cutting hair and shaving beards shall not be deemed a work of necessity or charity, which follows the exception as to works of necessity or charity, in Minn. Gen. Stat. 1894, § 6513, prohibiting Sunday labor, does not make a purely arbitrary classification in conflict with the Federal Constitution, but is within the limits of the legislative police power.

[No. 194.]

Argued March 16, 1900. Decided April 9, 1900.

I state of Minnesota up review a judgment

'N ERROR to the Supreme Court of the

affirming a decision in favor of a Sunday law. Affirmed.

See same case below, 74 Minn. 376, 77 N. W. 225.

The facts are stated in the opinion.

Mr. Joseph W. Molyneaux argued the cause and Mr. Albert E. Clarke filed a brief for plaintiff in error:

Any legislation which is not general in its scope, and which affects only one class or body of citizens, is in conflict with the spirit of this government and the 14th Amendment of the Constitution of the United States, unless such class or body of citizens are classi

Constitutional law as to Sunday labor-fied upon some apparent, natural reason,

class legislation as to barbers.

The proviso that keeping a barber shop open NOTE. As to Sunday labor-see Quarles v. State (Ark.) 14 L. R. A. 192, and note.

As to constitutionality of Sunday laws-wee Judefind v. State (Md.) 22 L. R. A. 721, and

note.

Constitutionality of statutes making it unlawful for barbers to carry on their business on Sunday.

A barber is deprived of property without due process of law by a statute making it unlawful for him to do business on Sunday, while it does not apply to any other class of business. Eden v. People, 161 Ill. 296, 32 L. R. A. 659, 43 N. E. 1108.

Nor does the police power justify the enactment of such a statute. Ibid.

A statute prohibiting barbers from carrying on business after noon on Sunday or on a legal holiday, and applying to no other class of laborers, is unconstitutional as special, unjust, and unreasonable, and as working an invasion of individual liberty, since it is based upon no distinction which justifies singling out that class of laborers. Ex parte Jentzsch, 112 Cal. 468, 32 L. R. A. 664, 44 Pac. 803.

So, a city ordinance making it unlawful for oarbers to pursue their calling on Sunday, without applying to other kinds of employment, Taco is unconstitutional as class legislation. ma v. Krech, 15 Wash. 296, 34 L. R. A. 68, 46 l'ac. 255.

And a statute prohibiting barbers only, from keeping open a bath room on Sunday is unconstitutional class legislation. Ragio v. State, 86 Tenn. 272, 6 S. W. 401.

The contrary view prevails in New York, where a statute prohibiting barbers from carrying on their trade on Sunday is held to be a constitutional exercise of the police power to promote the public health. People v. Havnor, 149 N. Y. 195, 31 L. R. A. 689, 43 N. E. 541.

some reasons suggested by necessity, by such a difference in the situation and circum

And the exception contained in this statute, which permits barbers in Saratoga Springs and New York city to pursue their business during certain hours on Sunday does not deny to barbers in other places the equal protection of the laws since it affects all within the same localities alike. Ibid.; People ex rel. Hobach v. Kings County Sheriff, 13 Misc. 587, 35 N. Y. Supp. 19.

This statute is not a city law, but is a gen eral law applicable to the whole state except New York and Saratoga Springs. People ca rel. Hobach v. Sheriff, 13 Misc. 587, 35 N. Y. Supp. 19.

An act prohibiting barbering on Sunday is not unconstitutional as class legislation, where a general law prohibits all business on Sunday. Breyer v. State, 102 Tenn. 103, 50 S. W. 769.

And a statute which provides more severe penalties for carrying on the business of barbering on Sunday than those imposed for the conduct of other legitimate business on that day is not unconstitutional as class legislation. Ibid.

Nor are the equal privileges or Immunities of citizens violated by prohibiting the business of a barber on Sunday under greater penalties than those imposed upon other business, or because an exception is made as to those who conscientiously observe the seventh day of the week as the Sabbath; nor is such a statute invalid as class legislation. People v. Bellet, 99 Mich. 151, 22 L. R. A. 696, 57 N. W. 1094.

A statute prohibiting all labor on Sunday except works of necessity or charity is not obnoxious to the objection of being class legislation because it declares that, as a matter of law, keeping barber shops open on Sunday is not a work of necessity or charity, while, as to all other kinds of labor or business, it leaves that question to be determined as one of fact. State v. Petit, 74 Minn. 376, 77 N. W. 225.

177 U. S.

Mr. W. B. Douglas argued the cause and, with Mr. C. W. Somerby, filed a brief for defendant in error:

The legislature is the sole judge of the policy and expediency of the laws and of the classes selected as subject to, or exempted from, their operation.

stances of the subjects placed in a different | Pac. 225; State v. Granneman, 132 Mo. 326, class as suggests the necessity or propriety 33 S. W. 784. of different legislation with respect to them. Johnson v. St. Paul & D. R. Co. 43 Minn. 222, 8 L. R. A. 419, 45 N. W. 156; Nichols v. Walter, 37 Minn. 264, 33 N. W. 800; Lavallee v. St. Paul, M. & M. R. Co. 40 Minn. 249, 41 N. W. 974; Eden v. People, 161 Ill. 296, 32 L. R. A. 659, 43 N. E. 1108; Ex parte Jentzsch, 112 Cal. 468, 32 L. R. A. 664, 44 State v. Wellott, 54 Mo. App. 310; State Pac. 803; Tacoma v. Krech, 15 Wash. 296, v. Ohmer, 34 Mo. App. 115; People v. Hav34 L. R. A. 68, 46 Pac. 255; State v. Granne-nor, 149 N. Y. 195, 31 L. R. A. 689, 43 N. E. man, 132 Mo. 326, 33 S. W. 784; Calder v. Bull, 3 Dall. 386, 1 L. ed. 648; U. S. Const. 14th Amend.; Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 40 N. E. 454; Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Low v. Rees Printing Co. 41 Neb. 127, 24 L. R. A. 702, 59 | N. W. 362; Ex parte Westerfield, 55 Cal. 550, 36 Am. Rep. 47; Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 746, 28 L. ed. 585, 4 Sup. Ct. Rep. 652; Millett v. People, 117 Ill. 294, 57 Am. Rep. 869, 7 N. E. 631; Frorer v. People use of School Fund, 141 Ill. 171, 16 L. R. A. 492, 31 N. E. 395; Ramsey v. People, 142 Ill. 380, 17 L. R. A. 853, 32 N. E. 364; Braceville Coal Co. v. People, 147 Ill. 66, 22 L. R. A. 340, 35 N. E. 62; People v. Gillson, 109 N. Y. 389, 17 N. E. 343; State v. Goodwill, 33 W. Va. 179, 6 L. R. A. 621, 10 S. E. 285; State v. Loomis, 115 Mo. 307, 21 L. R. A. 789, 22 S. W. 350; Toledo, W. & W. R. Co. v. Jacksonville, 67 Ill. 37, 16 Am. Rep. 611; Cooley, Const. Lim. p. 393; Atchison & N. R. Co. v. Baty, 6 Neb. 37, 29 Am. Rep. 356; Godcharles v. Wigeman, 113 Pa. 431, 6 Atl. 354.

Where the ostensible object of an enactment is to secure the public comfort, welfare, or safety, it must appear to be adapted to that end; it cannot invade the rights of person and property under the guise of police regulation when it is not such in fact.

Eden v. People, 161 Ill. 296, 32 L. R. A. 659, 43 N. E. 1108; Ex parte Jentzsch, 112 Cal. 468, 32 L. R. A. 664, 44 Pac. 803; Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 40 N. E. 454; Lake View v. Rose Hill Cemetery Co. 70 Ill. 191, 22 Am. Rep. 71.

The barber is deprived of property without due process of law by a statute making it unlawful for him to do business on Sunday, while it does not apply to any other class of business; and such a statute is unconstitutional as special, unjust, and unreasonable, working an invasion of individual liberty, since it is based upon no distinction to justify singling out that class of laborers.

Eden v. People, 161 Ill. 296, 32 L. R. A.
659, 43 N. E. 1108; Ex parte Jentzsch, 112
Cal. 468, 32 L. R. A. 664, 44 Pac. 803.
The law herein contested is unconstitu-

tional.

Eden v. People, 161 Ill. 296, 32 L. R. A. 659, 43 N. E. 1108; People v. Havnor, 149 N. Y. 195, 31 L. R. A. 689, 43 N. E. 541; Toledo, W. & W. R. Co. v. Jacksonville, 67 Ill. 37, 16 Am. Rep. 611; Ex parte Jentzsch, 112 Cal. 468, 32 L. R. A. 664, 44 Pac. 803; Tacoma ▼. Krech, 15 Wash. 296, 34 L. R. A. 68, 46

541; Lindenmuller v. People, 33 Barb. 548; Quarles v. State (Ark.) 14 L. R. A. 192 and note; Judefind v. State, 78 Md. 510, 22 L. R. A. 721, 28 Atl. 405; Bohl v. State, 3 Tex. App. 683; Tiedeman, Police Powers, 184; Cooley, Const. Law, 6th ed. 153, 154; Parker v. State, 16 Lea, 476, 1 S. W. 202; Ex parte Andrews, 18 Cal. 679; Bosworth v. Swansey, 10 Met. 363, 43 Am. Dec. 441; Com. v. Harrison, 11 Gray, 308; McPherson v. Chebanse, 114 Ill. 46, 55 Am. Rep. 857, 28 N. E. 454; Com. v. Hyneman, 101 Mass. 30; Bucher v. Fitchburg R. Co. 131 Mass. 156, 41 Am. Rep. 216; Day v. Highland Street R. Co. 135 Mass. 113, 44 Am. Rep. 447; Mueller v. State, 76 Ind. 310, 40 Am. Rep. 245; Johns v. State, 78 Ind. 332, 41 Am. Rep. 577; Bloom v. Richards, 2 Ohio St. 387; Scales v. State, 47 Ark. 476, 58 Am. Rep. 768, 1 S. W. 769; Troewert v. Decker, 51 Wis. 46, 37 Am. Rep. 808, 8 N. W. 26; Frolickstein v. Mobile, 40 Ala. 725; State v. Baltimore & O. R. Co. 24 W. Va. 783, 49 Am. Rep. 290; Shipley v. State, 61 Ark. 216, 32 S. Ŵ. 489, 33 S. W. 107; Swann v. Swann, 21 Fed. Rep. 299; State v. Ludwig, 21 Minn. 202; Liberman v. State, 26 Neb. 464, 42 N. W. 419.

The exemption, from the operation of the Sunday laws, of such persons as conscientiously observe the seventh day of the week as the Sabbath, does not grant immunities to one class which, upon the same terms, shall not apply to all and is constitutional and valid.

Johns v. State, 78 Ind. 332, 41 Am. Rep. 577; Liberman v. State, 26 Neb. 464, 42 Ñ. W. 419.

The validity of Sunday laws has been uniformly recognized by this court. Such laws are a legitimate exercise of the police power of the state.

Hennington v. Georgia, 163 U. S. 299, 41 L. ed. 166, 16 Sup. Ct. Rep. 1086; United States v. Ball, 163 U. S. 671, 41 L. ed. 303, 16 Sup. Ct. Rep. 1192; Stone v. United Ct. Rep. 778; United States v. Gates, 148 U. States, 167 U. S. 195, 42 L. ed. 133, 17 Sup. S. 134, 37 L. ed. 396, 13 Sup. Ct. Rep. 570;

37 L. ed. 76, 13 Sup. Ct. Rep. 217; Ball v. United States, 140 U. S. 131, 35 L. ed. 383, 11 Sup. Ct. Rep. 761; Street v. United States, 133 U. S. 306, 33 L. ed. 634, 10 Sup. Ct. Rep. 309; Gumbel v. Pitkin, 124 U. S. 146, 31 L. ed. 378, 8 Sup. Ct. Rep. 379; Gibbs & S. Mfg. Co. v. Brucker, 111 U. S. 597, 28 L. ed. 534, 4 Sup. Ct. Rep. 572; Pence v. Langdon, 99 U. S. 578, 25 L. ed. 420; Pow hatan 8. B. Co. v. Appomattox R. Co. 24 How. 247, 16 L. ed. 682; Philadelphia, W. &

Monroe Cattle Co. v. Becker, 147 U. S. 56,

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