State in 1851;-to the construction of wills;-to the distinction between mortgages and deeds of trust; and to a great number of other subjects. A citation is given in the note of several of these cases. *

Two cases not included among these deserve special notice; in one of which-Ex-parte Newman, (9 Cal., 502,) relating to a law making Sunday a day of rest-Judge Field wrote a dissenting opinion; and in the other—Perry vs. Washburn, (20 Cal., 318,) asserting the non-receivability of legal-tender notes for State taxes-he wrote the opinion of the court.

A SUNDAY LAW, OR A LAW FOR A Day of Rest.

In Ex-parte Newman the question arose as to the validity of a law of California, which provided that no person should keep open on Sunday "any store, warehouse, mechanic shop, workshop, banking-house, manufacturing establishment, or other business house, for business purposes;" or "sell or expose for sale any goods, wares, or merchandise" on that day; and that a violation of these provisions should be deemed a misdemeanor for which a penalty was prescribed. The law excepted from its operation the keepers of hotels, inns, taverns, restaurants, boarding houses, and livery stables, and the retailers of drugs and medicines, and certain articles of fresh food and articles required in cases of necessity or charity. Nor did the law apply to such manufacturing or other business establishments as were necessarily required to be kept in continual operation to accomplish their business.

* Butte Canal and Ditch Co. vs. Vaughan, 11 Cal., 153; Baker vs. Baker, 13 Id., 87; Pierce vs. Robinson, 13 Id., 116; Blanding vs. Burr, 13 Id., 343 ; Scott vs. Ward, 13 Id., 458; Koch vs. Briggs, 14 Id., 256; Noe vs. Card, 14 Id., 577; Pixley vs. Huggins, 15 Id., 128; Norris vs. Harris, 15 Id., 226; State of California vs. McCauley, 15 Id., 429; Holliday vs. Frisbie, 15 Id., 630; McCauley vs. Brooks, 16 Id., 12; Koppikus vs. State Capital Commissioners, 16 Id., 249; Brumagim vs. Tillinghast, 16 Id., 267; Doll vs. Meador, 16 Id., 295; Halleck vs. Mixer, 16 Id., 575.

This law the majority of the court decided to be in conflict with the clause of the constitution which declared that "the free exercise and enjoyment of religious profession and worship, without discrimination or preference," should forever be allowed in the State, holding that in enforcing cessation from labor on a day held sacred by a religious sect was a discrimination in favor of that sect. The court also decided that the Legislature had no right to forbid the pursuit of a lawful occupation on one day of a week, any more than it had a right to forbid it altogether, under the clause of the constitution declaring that all men have the inalienable right of "acquiring, possessing, and protecting property."

From this decision Judge Field dissented, holding that the law only prescribed a day of rest from certain occupations as a rule of civil conduct, and had nothing to do with religious profession or worship, to which it did not allude in any of its provisions. And he thus vindicated its wisdom:

"In its enactment the Legislature has given the sanction of law to a rule of conduct which the entire civilized world recognizes as essential to the physical and moral well-being of society. Upon no subject is there such a concurrence of opinion among philosophers, moralists, and statesmen of all nations, as on the necessity of periodical cessations from labor. One day in seven is the rule, founded in experience and sustained by science. There is no nation, possessing any degree of civilization, where the rule is not observed, either from the sanctions of the law or the sanctions of religion. This fact has not escaped the observation of men of science, and distinguished philosophers have not hesitated to pronounce the rule founded upon a law of our race.

"The Legislature possesses the undoubted right to pass laws for the preservation of health and the promotion of good morals, and if it is of opinion that periodical cessation from labor will tend to both, and thinks proper to carry its opinion into a statutory enactment on the subject, there is no power, outside of its constituents, which can sit in judgment upon its action. It is not for the judiciary to assume a wisdom which it denies to the Legislature, and exercise a supervision over the discretion of the latter. It is not the province of the judiciary to pass upon the wisdom and policy of legislation; and when it does so, it usurps a power never conferred by the constitution.

"It is no answer to the requirements of the statute to say that mankind will seek cessation from labor by the natural influences of self-preserva

tion. The position assumes that all men are independent, and at liberty to work whenever they choose. Whether this be true or not in theory, it is false in fact; it is contradicted by every day's experience. The relations of superior and subordinate, master and servant, principal and clerk, always have and always will exist. Labor is in a great degree dependent upon capital, and unless the exercise of the power which capital affords is restrained, those who are obliged to labor will not possess the freedom for rest which they would otherwise exercise.- - The law steps

in to restrain the power of capital. Its object is not to protect those who can rest at their pleasure, but to afford rest to those who need it, and who, from the conditions of society, could not otherwise obtain it. Its aim is to prevent the physical and moral debility which springs from uninterrupted labor; and in this aspect it is a beneficent and merciful law. It gives one day to the poor and dependent; from the enjoyment of which no capital or power is permitted to deprive them. It is theirs for repose, for social intercourse, for moral culture, and, if they choose, for divine worship. Authority for the enactment I find in the great object of all government, which is protection. Labor is a necessity imposed by the condition of our race, and to protect labor is the highest office of our laws."

Indeed, every one can see that the only chance for rest to the over-worked laboring classes in our factories and workshops, and in the heated rooms of our cities, is in a law compelling cessation from secular pursuits at regular intervals. Without it there would be for them only ceaseless toil. To them, therefore, such a law is a great blessing. It enables them, one day in a week, to be with their families; to seek with them the pure air of the country; to visit gardens, and places for quiet enjoyment; to ex-. change courtesies with friends and relatives, and to be free from the perpetual din of the shop, and the ever-pressing thought that only by the sweat of their brow they can earn their daily bread. To the objection that Sunday is a day of religious observance by certain sects; Judge Field answered as follows:

"The power of selection being in the Legislature, there is no valid reason why Sunday should not be designated as well as any other day. Probably no day in the week could be taken which would not be subject to some objection. That the law operates with inconvenience to some is no argument against its constitutionality. Such inconvenience is an incident to all general laws. A civil regulation cannot be converted into a religious institution because it is enforced on a day that a particular religious

sect regards as sacred.-- -The fact that the civil regulation finds support in the religious opinion of a vast majority of the people of California is no argument against its establishment. It would be fortunate for society if all wise civil rules obtained a ready obedience from the citizen, not merely from the requirements of the law, but from conscientious or religious convictions of their obligation. The law against homicide is not the less wise and necessary because the divine command is thou shalt do no murder.' The legislation against perjury is not the less useful and essential for the due administration of justice because the injunction comes from the Most High, 'thou shalt not bear false witness against thy neighbor.' The establishment by law of Sunday as a day of rest from labor, is none the less a beneficent and humane regulation because it accords with the divine precept that upon that day thou shalt do no manner of work; thou, and thy son, and thy daughter, thy man-servant and thy maid-servant, thy cattle, and the stranger that is within thy gates.'"

To the objection that the law was in conflict with the clause declaring the inalienable rights of all men to acquire, possess, and protect property, he answered that the clause was never intended to inhibit legislation upon them, and that the mode and manner of acquiring, possessing, and protecting property were matters upon which laws were passed at every every session of the Legislature.

All sorts of restrictions and regulations," he added, "are placed upon the acquisition and disposition of property. What contracts are valid, and what are invalid, when they must be in writing, and when they can be made by parol, what is essential to transfer chattels, and what to convey realty, are matters of constant legislation. Some modes of acquisition are subject to licenses, and some are prohibited. The right to acquire property, with the use of it, must be considered in relation to other rights. It may be regulated for the public good, though thereby the facility of acquisition is lessened, as in the sale of gunpowder and drugs, and in the practice of different professions. To say that a prohibition of work

on Sunday prevents the acquisition of property, is to beg the question. With more truth it may be said, that rest upon one day in seven better enables men to acquire on the other six."-(9 Cal., 527.)

The decision of the court was rendered at the April term in 1858. In 1861 the Legislature passed another Sunday law similar in its provisions to the one declared to be unconstitutional, and at the July term of that year the court held it to be constitutional, thus overruling the decision in Ex-parte Newman, and adopting the views expressed by Judge Field in his dissenting opinion in that case.

THE NON-RECEIVABILITY OF LEGAL-TENDER NOTES FOR STATE TAXES.

In Perry vs. Washburn the question arose whether Treasury notes of the United States were receivable for state and county taxes. The act of Congress made such notes "a legal tender in payment of all debts, private and public." The court held that Congress only intended by debts such obligations for the payment of money as are founded upon contract. Judge Field gave the opinion of the court, and in speaking on this point he said:

"The act does not, in our judgment, have any reference to taxes levied under the laws of the State. It only speaks of taxes due to the United States, and distinguishes between them and debts. Its language is, 'for all taxes, internal duties, excises, debts, and demands of every kind due to the United States, the notes shall be receivable." When it refers to obligations other than those to the United States it only uses the term 'debts'; the notes it declares shall be 'a legal tender in payment of all debts public and private.' Taxes are not debts within the meaning of this provision. A debt is a sum of money due by contract, express or implied. A tax is a charge upon persons or property to raise money for public purposes. It is not founded upon contract; it does not establish the relation of debtor and creditor between the taxpayer and State; it does not draw interest; it is not the subject of attachment; and it is not liable to set-off. It owes its existence to the action of the legislative power, and does not depend for its validity or enforcement upon the individual assent of the taxpayer. It operates in invitum."

Independent of the consideration mentioned, it is evident that the States can collect their taxes in such way as they may see fit-in goods as well as money, as was formerly done in some of the States; and that this right has never been surrendered to the general government. This case is important as being the first one in which the receivability of legal-tender notes for State taxes was brought before the courts for adjudication.

The Supreme Court of the United States cited the decision with approval and followed it in Lane County vs. Oregon (7 Wall., 71).