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 the 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. . .

"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.

"But it is urged that the intention of the law is to enforce the Sabbath as a religious institution. This position is assumed from the description of the day and the title of the act, but [it] is not warranted by either. 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 which a particular religious sect regards as sacred.

"With the motives which operated upon the legislature to pass the act, we have nothing to do. It is

a question of power that we are determining, and whether that power was wisely or unwisely exercised, or from pure or impure motives, is of no moment. If we admit that the

law had its origin in the religious cpinions of the members of the Legislature, we advance nothing in favor of its constitutionality, and concede nothing against it. . . In twenty-five states of the Union, the statutes of which I have been able to examine, there are laws prohibiting secular business on Sunday, and in every one of these states, their validity has been upheld either by sustaining convictions had under them, or by annulling contracts made in violation of their provisions, or directly upon the question of their constitutionality." Hennington v. Georgia, 163 U. S. 299, 41 L. ed. 166, 16 Sup. Ct. Rep. 1086; Petit v. Minnesota, 177 U. S. 164, 44 L. ed. 716, 20 Sup. Ct. Rep. 666; McClelland v. Denver, 36 Colo. 486, 86 Pac. 126, 10 Ann. Cas. 1014; People v. Havnor, 149 N. Y. 195, 31 L.R.A. 689, 52 Am. St. Rep. 707, 43 N. E. 541; St. Louis v. De Lassus, 205 Mo. 578, 104 S. W. 12; Com. v. Has, 122 Mass. 40.

We are of the opinion, therefore, that it is within the police power of the state to provide for one day of rest at periodic intervals, and that it

Constitutional law-Sunday

vide for

discretionary power to prowith the legislative observance. authority to select

the length of the interval and the day upon which that rest shall be taken, and that such a regulation, if not in conflict with other principles of our Constitution, in no manner interferes with religious freedom or liberty of conscience, but is based upon the undoubted right of the legislature to pass laws for the preservation of health and the promotion of the public welfare.

A law may, however, though not obnoxious to constitutional provisions in regard to religious liberty, violate other principles, such as those set forth in article 2, § 13, of our Constitution, which reads as follows: "Section 13. No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same

terms, shall not equally belong to all citizens or corporations."

It is contended that the ordinance in question, even though it may not restrict religious liberty, does grant special privileges or immunities to some citizens and deny them to others.

There are many cases in which the issue above set forth has been discussed. The decisions have been as varied as the statutes on which the actions arose. But running throughout the the best considered opinions we find one general principle adhered to. If the obvious. purpose of the act is to grant a general day of rest to the community, even though certain works declared to be of necessity or charity are permitted, it is generally upheld. If, on the other hand, it is apparent that the intent and effect of the law is to prohibit the exercise of certain particular occupations, legitimate and laudable in themselves, while allowing other businesses, not reasonably to be distinguished from those prohibited, to be carried on freely, the statute is usually declared to be unconstitutional. Chan Sing v. Astoria, 79 Or. 411, 155 Pac. 378; Ex parte Jentzsch, 112 Cal. 468, 32 L.R.A. 664, 44 Pac. 803; Denver v. Bach, 26 Colo. 530, 46 L.R.A. 848, 58 Pac. 1089; Eden v. People, 161 Ill. 296, 32 L.R.A. 659, 52 Am. St. Rep. 365, 43 N. E. 1108.

The principle which governs is well set forth in Pasadena v. Stimson, 91 Cal. 238, 251, 27 Pac. 607: "The conclusion is, that although a law is general and constitutional when it applies equally to all persons embraced in a class founded upon some natural or intrinsic or constitutional distinction, it is not general or constitutional if it confers particular privileges or imposes peculiar disabilities or burdensome conditions, in the exercise of a common right, upon a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law."

Most of the cases cited by respond

46 A.L.R.-19.

ent either recognize this principle expressly, or else the facts of the case necessarily imply it. In Re Sumida, 177 Cal. 388, 170 Pac. 823, the ordinance in question carried a general prohibition against "any store. or place of business," and in another clause excepted from the general rule certain named businesses which the court held were works of necessity. The same situation existed in State v. Dolan, 13 Idaho, 693, 14 L.R.A. (N.S.) 1259, 92 Pac. 995; Theisen v. McDavid, 34 Fla. 440, 26 L.R.A. 234, 16 So. 321; State ex rel. Hoffman v. Justus, 91 Minn. 447, 64 L.R.A. 510, 103 Am. St. Rep. 521, 98 N. W. 325, 1 Ann. Cas. 91; and State v. Nicholls, 77 Or. 415, 151 Pac. 473.

We therefore deduce from the foregoing principles that in the state or Arizona it is competent for the legislature to provide for a general cessation of labor at such times as it may think proper, even though certain specified occupations may be declared exempt from the law as works of necessity and charity, but that it may not pro- -equal protechibit the exercise of tion—principles business or occupations legitimate and lawful within themselves which do not carry inherent reasons for special discrimination, while allowing general privileges to all other similar occupations.

governing.

Let us apply this test to the ordinance in question. It is evident. from its language that it is not a case of a general cessation from labor with special exemption for reasons of necessity or charity, but rather a special inhibition placed upon certain otherwise praiseworthy and legitimate businesses with a general exemption to all other classes.

We think the language of the court in Chan Sing v. Astoria, supra, applies in this case: "In our judgment, the classification embraced in the ordinance is arbitrary and unfair, and no substantial distinction exists between those men

tioned and those omitted, having in view the object to be attained by the charter, 'to secure the peace and good order of the city and the health of its inhabitants.' It is difficult to conceive that any odor of sanctity hovers about a furniture store or makes it so impeccable that it would be exempt from the police power of the city, while a hardware store should be subject to its scrutiny.

Practical justice demands that all who are in the same category should be treated alike in the exercise of authority for the good order of the community. . The The grouping must include all who have substantially the same relation to the end to be attained. . . . Mere difference in name is not in every instance a distinguishing characteristic supporting the exercise of the police power against one and not against the other."

For the same reasons we cannot see why it is a legitimate discrimination to close groceries, shoe stores, and hardware stores, while allowing jewelers, dealers in secondhand goods, and tailoring establishments to remain open without restriction; nor does it appear on any theory we can conceive that pawnbrokers and

photographers are engaged in works of necessity and charity when butchers and dealers in fruit or vegetables are not.

We are of the opinion that the ordinance in question shows on its face it is not a general "Sunday closing" ordinance with reasonable exceptions, but a special one, aimed without any appar- -equal protecent legitimate rea- tion-discrimison at certain nation in Sunday closing. named businesses,

and it does, therefore, in effect, grant special privileges and immunities to certain classes of citizens of the state, while, without legal excuse, denying them to others. In view of our opinion on this point, it is unnecessary for us to discuss the other matters raised by the appellant. If the ordinance in question is obnoxious to article 2, § 13, of our Constitution, we need not in this case inquire into the charter power of the town of Somerton to pass a general "Sunday closing" ordinance.

For the foregoing reasons the judgment of the lower court is reversed, and the cause is remanded to the Superior Court of Yuma County, with instructions to sustain the demurrer to the complaint.

I. Discretion in classification generally.

Although the provision of the Federal Constitution guaranteeing the equal protection of the laws prohibits class legislation, it does not prohibit the reasonable classification of persons and things for the purpose of legislation, and hence the state may, so far as the Federal Constitution is concerned, classify persons and ob

jects for the purpose of legislation if the classification is based on proper and just statements considering the purposes of the law; the legality of the classifications or legislative regulations must be determined by considering the subject to be regulated, the character, extent, and purpose of the regulation, the classes of persons affected, and the particular classifica

tion and regulation adopted. 6 R. C. L. 373, § 379. Any substantial difference between particular businesses may serve as a reasonable basis for a classification, and be sufficient; and classifications, with due regard to the constitutional requirements as to the equal protection of the laws, may be based on numerous and different factors. 6 R. C. L. 397, § 393.

The general rule is that the classification on which a Sunday law is based is within the discretion of the legislative branch of the government, and will be upheld unless it is clearly arbitrary.

22 Wyo. 154, 136 Pac. 452.

As was said in State v. Loomis (Mont.) supra: "Discrimination is the very essence of classification, and is not objectionable unless founded on distinctions which the courts are compelled to pronounce unreasonable or purely fictitious. Quong Wing v. Kirkendall (1912) 223 U. S. 59, 62, 56 L. ed. 350, 351, 32 Sup. Ct. Rep. 192."

The fact that there are other occupations than those affected, which the legislature might with equal propriety have included, would, in this view, be no valid objection to the law. People v. Havnor (1896) 149 N. Y. 195, 31 L.R.A. 689, 52 Am. St. Rep. 707, 43 N. E. 541, writ of error dismissed for want of jurisdiction in (1898) 170 U. S. 408, 42 L. ed. 1087, 18 Sup. Ct. Rep. 631.

It is within the power of the legislature to declare what acts of labor are to be excluded as necessary from the operation of a Sunday law. Van Hafften v. Clayton (1923) - Mo. App.

On the other hand, a statute or ordinance is not valid if it prohibits the exercise of businesses or occupations legitimate and lawful within themselves, which do not carry inherent reasons for special discrimination, and does not prohibit other similar occupations. See the reported case (ELLIOTT v. STATE, ante, 284). And see Ex parte Westerfield (1880) 55 Cal. 550, 36 Am. Rep. 47 (holding stated more fully infra, in subdivision II.).

The legislation must have some reasonable relation to the public health, peace, welfare, or safety, and must be uniform in its operation on all persons similarly situated. State v. Nicholls (1915) 77 Or. 415, 151 Pac. 473.

In the absence of evidence to the contrary, it will be presumed that the classification of a Sunday law is reasonable (State v. Loomis (1925) Mont. 224 Pac. 344; State v. Nicholls (Or.) supra); and the burden is on one denying its validity to show that there is no admissible hypothesis on which it can be justified (State v. Loomis (1925) Mont., 242 Pac. 344).

Thus, the forbidding of the sale of groceries or meats on Sunday has been sustained by the courts. People v. De Rose (Mich.) and State v. Somberg (Neb.) supra.

Likewise, a statute of Minnesota prohibiting the selling or exposing for sale of uncooked meats, fresh or salt, or groceries, dry goods, clothing, wearing apparel of any kind, or boots or shoes, on Sunday, has been held valid. State v. Weiss (Minn.) supra.

Statutes against the sale of intoxicating liquor on Sunday have been held to be valid. Bode v. State (Md.); State v. Grossman (Mo.); Nashville v. Linck (Tenn.); and State v. Smart (Wyo.) supra.

In Re Caldwell (Neb.) supra, holding that a statute prohibiting "common labor" on Sunday was not violative of the 14th Amendment of the Federal Constitution, and not unconstitutional as class legislation, the court said: "If, from our knowledge of conditions existing at the time that the legislation was adopted, we can say that there was such a sensible distinction between the occupations properly grouped under the head of common labor, and those without that term, as to form a basis for judgment, then the act cannot be said to be void because of the constitutional inhibitions above referred to."

On the other hand, a statute forbidding the business of baking on Sunday has been held to be invalid as special legislation, applying to a particular class. Ex parte Westerfield (1880) 55 Cal. 550, 36 Am. Rep. 47, wherein the court said: "Even if there be authority to restrain the labor on some one day, it must be, if at all, under a general law restraining labor on that day."

In Ex parte Koser (1882) 60 Cal. 177, the court distinguished Ex parte Westerfield (1880) 55 Cal. 550, 36 Am. Rep. 47, saying: "We are referred by the learned counsel to the case of Ex parte Westerfield (Cal.) supra, as determining the question that the law in question is a special law. The distinction between the statute passed on in that case and §§ 300 and 301 of the Penal Code is palpable. The for