CHE CHARLOTTETOWN GUARDIAN

; MARCH 16, 1932 7

m 1011mm Judgment in the a; Tirccdore G901‘!!! (Ameli- mv ,,_ The city of Charlottetown, Mpondent) was delivered in the n court on Monday by Mr, w saunders. The judgment al- W m, appeal. and declares the l" under which appellant was

united to be ultra vlree. pm, appellant was convicted by m, §tipCildl8Ty Magistrate of the Mwdant ‘city for that he 0n the mday of November 193i at Char- ptetown did unlawfully keep open “netaurant for business between we hours of l0 o'clock a. rn. and gdclock noon contrary to the City m-lew.

11w appellant as manager of the venetian Gadrens Restaurant ad- niii having kept tne same open for gnginess on Sunday the 1st of No- was 1931 between the hours mUIllOHOd, but conioads that he had |y1ght to do so, claiming the bye- law in question to be ultra vires.

j An Act 0f Necessity _

1h support of his contention his counsel among other things eon- uuded that the preparation and serving of meals on Sunday is an act of necessity and comes within the provisions of the Federal Lord's Act as well as the provincial Lord's Day Act; that the Act lIIOOTpQr- sting the defendant city could not repeal or interfere with the provis- ions of the Federal Lord's Day Act md does not JfipCll the provisions oi the provincial Lord's Day Act and iherefore could not confer ‘powers an the defendant city inconsistent with the provisions of either of the said Lord's Day Act.

Incorporation Act

The defendant city's incorpora- tion Act is 21-22, George v, Cap. a1, mi sec. 112 is as follows:

“ll2. It shall be lawful for the uld Council of the said City at a lmiing .or meetings as aforesaid b make such by-laws as to them mil seem meet for the good rule, peace, welfare and government cf the said city-but not so as to re- lirict the generaFty 0f the fore- wng terms of this secticn-are de- clared to be for the purposes foll- owing:

"19). To regulate and license the flfryiilg on or conducting; in the illd city of all restaurants, cigar liands, fruit stands, rooms or pluc- es wherein soft drinks of any kind "9 dispensed in the said City; and llso to nrovde for the hours in which said places shall do business Ind to provide for the closing or‘ otherwise regulating of ' such on Sundays."

Under the provisions of Sec. 112 ille defendant City enacted the fou- "lifli; by-law:

"7. No restaurant shall be open ior business or do any business ex- itivt at the following hours, namely -(ai on Sundays, and then for “mil-i Only. between 8.30 a. m. and 10-00 a. m.; between 12 noon and 2-00 n. m.: and between 5.ao and 7-00 p. m. Provided however that lull": the months of June, July, ‘llllilll. sflbtcmber and October res- “llrallls may be open for meals on iundnys from 8.30 a. m. to 12.00 0- m."

The foregoing is the by-law which ‘he aiibellant was convicted oi vio-

Judgment Given

InSupreme Court

Theod0fe {ieofis Wins Appeal (jase Agamst The City Re Res- taurant By-LaW, Which Is Found

To Be Ultra Yggs.

the said mentioned Acts and is ultra vires.

Sec. 11 of Cap. 123 (R. 5. 0.. 1927) reads as follows:

"Notwithstanding anything herein Wllfllned. any person may on the Lord's Day do any work o: necess- lliy 0r mercy, and for greater cer- lfllnly but not so as to restrict the ‘lldlllnfy meaning of the expression “work of necessity or mercy" it is hereby declared that it shall be deemed to include iihe following classes of work: .

Then, follows very many classes of work which are called by the Act “works of necessity or mercy," and among others the following:-

"(c). ileceiving, transmitting A or delivering telegraph or telephone messages."

"(g). The conveying of travellers and work incidental thereto."

"(o). The hiring oi horses and carriages or small boats for the personal use of the hirer or his

. lflinlly for any purpose not prohb-

ited by this Act."

20 Geo. II, Carp. 3, subsecVon 2 ‘reads:

"And be it further enacted by thr- authorlty aforesaid, that no truck- man, driver of carts, labourer, or other person whatsoever, shall here- after do or perform any labour, work or business appertaining to his or their respective ordinary call- ings or profession or other worldly labour or suffer the same to be done by his, her or their child or child- ren, servant or servants,‘ either by land 0r water (works of necessity and charity only excepted)!’ Hiring and driving a horse on a Sunday under subsection (o) of Section 11 of Cap. 123 (R. S. C., i921) comes within the express pro- visions of the Lord's Day not. If one is permitted to hire and drive a horse and carnage all day Sunday, it necessarily follows he would be permitted w f'éed his horse at ‘a livery stable on a Sunday at any time he deemed it necessary to so do. The Act itself does not express- ly state he may feed his horse at any time on Sunday but it would be unthinkable to hire and drive a horse all day on Sunday without feeding him. To feed the horse would be an act o: necessivas weu as an act of mercy—would it not be an anomaly to say to the driver you may feed your horse at any time during Sunday, but you your- self can only eat at certain specified hours.

Counsel for the defendant City says or contends that the question of necessity or mercy does not arise in the present case as the hours specified in the by-law meet all general requirements.

Federal Lord's ,Day Act

It may very well be that the nec- essity for man or beast to eat m'ght. only arise at hours on Suh- day apart from those permitted by the by-law. It seems to me that the preparation and service of meals on Sunday dtlrlng the hours not permitted by the by-iaw might un- der certain circumstances be as important as selling or supplying medicine or drugs for the relief of sickness, which is expressly permitt- ed by the Federal Lord's Day Act and stated by the said Act to be an act of necessity and mercy. There are many other things in

hilly. His counsel contends that, finder the ‘provislcnsof Sec. ll Cap.‘

ll (a. s. 0., 1am, being "mi

M "Sllfloting the Lord's Day”, and‘ “d” "w Provincial Act 2o Geo. m “in 8. being "An Act m the duel lilservance of the Inrdta Day." that llibcllnnt had a right to keep his itsieurant open for the purpose of, mmlllllk and serving meals not-. nihstandixrg the by-law of the said

. iefendant City. In short, he says

"it br-law is m ccutravenfon oil

has-res DiFFER . THEWORi.D oven .

Swept-fir.

the Federal Lord's Day Act permitt- ed to be done on a Sunday wh’ch seem to me to be much less acts of necessity and mercy than the preparation and service of meals.

I am of opinion that the prepar- ation and service of meals at any time on a Sunday is an act of nec- essity and under certain circum- stances an act of mercy and comes within the provision of both Federal and Provincial Lord's Day Acts.

I am therefo s: of opinion that the by-law in question is ultra vir-

cut with pride that Hamilton's are the ORIGINAL Dainty Cream Sodas. A lull pound of delici- ous Waters in each yellow-and-red pack- age. So light-W in one pound; so tender-they just melt awayl OVEN SEALED-—tlie'y bring to your table the

flavor of a freshly baked biscuit.

es and that the conviction made herein should be quashed.

Al the defendant City doihtleal acted in good faith and believed they were acting within the law, it seems to me in the interests of Justice there should be no costs to 61th" Dfllty- There will therefore be no costs.

Judgment of Arsenault, J.

14th March 1932.

The said Theodore Georges, the appellant, was convicted before the Stipendia y Magistrate of the City of Charlottetown under the provis- ions of the by-law of the City of Charlottetown for that he on the lst day of November 1931 in the City of Charlottetown did unlaw- fully keep open a restaurant for b ‘ from between the hour oi 10 o'clock a. m. to 12 o'clock noon contrary to the provisions of said lay-laws.

This is an appeal from the said conviction.

The Act 21-22 Geo. V, Cap. 31, being an Act to consolidate and- amend the several Acts incorpora- ting the City of Charlottetown, pro- vldes:

“Sec. 112-11: shau be lawful for the said Council of the said City, at a meeting or meetings thereof as aforesaid, to make such by-laws as to them shall seem meet for the good rules, peace, welfare and gov- ernment of the said City-and from time to time with and subject. to the same limitations with respect to penaltiesjto make, ordain, enact, revise, amend, administer and en- fore such by-laws as they may deem proper, which for greater certainty, —but not so as to restrict the gen- erality of the foregoing terms of this _sectlon—are declared to be for the purposes following:

(9) To regulate and license the carrying on or conducting in the said City of all restaurants, cigar stands, rooms or places wherein soft drinks of any kind are dispensed in the said City; and also to provide for the hours in which said places shall do business and to provide for the closing or otherwise regu- lating of such on Sundays."

Under the provisions of the safd Section 112 and sub-section (c) the City Council of the said City of Charlottetown enacted the follow- ing by-law among others:-

"7. No restaurant shall be open for business or do any business ex- Fcept at the following hours, namely: (a) on Sundays, and than for meals only, between 8.30 a. m. and 10.00 a. m.; between 12 noon and 2.00 p. m. and between 5.30 p. m. and 7.00 p. m. Provided however that during the months of June, July, August, September and October restaurants may be open for meals on Sunday from 8.30 a. in. to 12.00 b. 1h."

It is to be noted that under the provisions of this by-law it was illegal on the first day of Novembe to keep a restaurant open on Sun- day except betwcen the hours of 8.30 a. m. to 10.00 a. m., between 12 noon and 2.00 p. m. and between 5.30 p. m. u» v.00 p. m. 1t is now claimed that such by-law is ultra vlres.

Section 11 of Culp. 120 (R. S- 0-. 1921), being "An Act respecting the Lord's Day," reads as follows: "Notwithstanding anything herein contained any person may on the Lord's Day do any work 0f necess- ity or mercy; and for greater cer- tainty but not so as to restrict the ordinary meaning of the 0X1"!!- sion ‘work of necessity or mercy‘ if is hereby declared that it shall be deemed to include the foliowinl classes of works :—"

Then follows a list of about twenty-four classes 0f Wfll! ill" may be called works of necessity or met-q, npd mung them the follow- ing:

"m lkoeivinl. trarmlitins “r delivering izlegrlpll 01' ibllbllfilll manages.”

Omvlying travellers and

Ho) ‘me hiring of horses or car- riages or small boats for the por- conoiuaootthehirerorbisfamil!

‘geqnwcamwllflli!

this Act?’

“(rl The delivery of milk for domestic use and the work 0i d0- mestic servants and watchmen."

The Prince Edward Island Statute relating to the observance of the Lord's Day is 20 Geo. III and is ‘Vin Act for the due observance of the lord's Day." The preamble of this act indicates its object. "Where- as the observance of the Lord's Day in this Island has been hith- erto much neglected any man? abuses of this same have been com- mitted tc“ the manifest prejudice and dshoriour of religion and the shameful violation of public deco- rum and good order."

Section 1i is in part as foliows:—-

"No truckman, driver oi carts, labourer 'or other persons what- soever shau hereafter do or perform any labour, work or bwinesa apper- tainhg to his or their respective ordinary calllngs or profession or other worldly labour or suffer the same to be done by his, her or their child or children, servant or ser- vants, either by land or by water (works of necessity and charity only erpectecll."

In neither of these Acts is the service of meals mentioned or the work d°hc 1n the preparation 0r serving thereof, neither is the pro- paratlon or service o: meals ment- ioned as a work of necessity. It has been universally recognized however that the preparation and service of meals on Sunday is a work of nec- esslty and so it has notbeeri at- tempted to interfere with such pre- paration and service either in the home or in public places such as hotels and restaurants.

It seems to me that this matter narrows itself down to the question as to whether the preparation and service of meals comes within the definition of “work of necessity or of mercy" within the meaning of the Lord's Day Act. On this point I have no hesitation in saying that it does as otherwise not only hotes and boarding houses but private homes as well would be precluded either by the owners ,their child- ren or servants from engaging in such an occupation on Sunday and, as I have said before, such pre- paration and service d meals has universally been recognized as a work of necessity.

The further questions remain - dld the Legislature by enacting subsection (0) of Section 112 (21-22 Geo. V, Cap. 31) intend to repeal amend or limit the provisions o! The lord's Day Act by empowering the city to pass by-laws providing for the hours in which said places (restaurants, cigar stands, fruit stands, rooms or places where‘ - soft drinks of any kind are dispensed in the City) shall do business and to provide for the closng or other- wise rcgulating of such on Sundays In the absence of more specific legislation I cannot think that the Legislature had any such intention or that the words used can be con- sidered as repealing the provisions of the lord's Day Act and in fact I consider it doubtful that the Provincial Legislature would now have such power. The Provincial Legislature has power to relax m‘ modify the provisions of the Lord's Day Act (Cap. l3 R. S. O. 1927) but, except as to any Act passed by th's Province previous to the enactment by the Dominion of the above Act, the Province cannot leg- islate to make the prov-isions of the said Act more stringent.

Persons must eat on Sunday as well as on any other day and there is no valid law that compels them to eat in any particular place or at any particular time. I consider that restaurants in the preparation and service of meals stand in the same position towards their clients and ll" public as do hotels and the City of Charlottetown has no power to mas a. ivy-law which conflicts with the provisions of both the provin- cial and Dominion lord's Day Act: and that by-law No. '1 in no far as it attempts to close the restaurants in the City of Charlottetown open for the purpose or serving meals dur in: certain hours on sunday. .'s ul-

tra vires. _-Y1‘hl conviction made herein is

The Public Forum

(Continued from PM! l)

._..____.________ person of Jesus of the conflict be- tween lrreccncilabie enemies.

Will powers were evident in the clash at Gethsemane. The cross we! the ending, an achieved victory. but Gethsemane was a battle- ground unlqua in all batlegrounds of the world's history. "Not My will (a ‘five sensed-self-pleamfg will) but Thine be done."

{Previous to His crucifixion H! said: "He that eeeketh me, seek- eth the father. I and my Father are one." Afterwards 0n the cred He exclaimed: "My 00d, My God, why hast thou forsaken me?"

When He had arisen on the first day of the week, speaking to Mary, he said, "Go, tell my disciples I a- scendtQmyGodandyOurGodJo My Father and your Father," show- ing Himself to be now a person distinct 1mm the Father. "Thou art My son, this day have I be- gotten thee. All flower is given unto Me.”

A word as to eternal or ever- lasting liia A radio receiving set is linked up to a station many miles distant, yet is there no idea of time in the ar rangement, nor shall we say, of space. As a matter of fact we hear an appreciable instant, be- fore an audience hears it immed- iately adjacent to the delivery. A radio may serve therefore to yield some faint illustration between fin- ite and infinite states of being- Both space and time are negligible. '

, There is a proper understanding oi the sacrifice of Jesus to be at- tained. Upon it is contingent our Salvation. “When Christ, who 1s our Life shall appear,» then shall ye also appear with Him, in Glory." That same Life shall be possessed. "The Gift of God is Eternal Life," only given to the worthy overcom- ers of Blood-Life.

I am sir, etc.

C. H. '1‘. OOSIER

1S TITHIN G BINDING‘!

Siri-We must all admit that we are passing through a season of great depression, and that every branch of activity is hit hard. Per- haps the church ls hit 8s hard, if not harder than any other 011m‘ ization. From the Moderator down to the local preacher, the Sunday School "Superintendent and teacher, all are making every eiIort to get people to do more to support the Budget. And still there is a great shortage in the needed funds, in order to keep all the activities of the United Church in motion. The Moderator appeals to the churchm of Eastern Canada for supportlfo help the West. He evidently made a ruling in which he suggests to all ministers to tithe their stipend for three months, six months and some for twelve months. I was just think- ing in my own mind, where did the Moderator find a warrant for his sembmandate in God's Holy Word? Why tithe one third, or one half, or three quarters of one’s salary and keep the balance with- out tithing at all? Personally I be- lieve that God expects minister's and laymen alike to tithe all their incomes. Should Mnisters be let clear by tithing a third or less of their salary, what a poor example they will be to their own support- ers. When God first established a church on this Earth, he gave all the members of this Church vol’! strict rules to govern them. Amonl those rules ls found the moral law,

q “ed and the appeal auowed but, as this is a matter which in- volves the validity of a by-law PMS- ed by virtue of a provinclai. statute and in conformity with the practice heretofore established, there will be no costs to either party.

Dru“?

who cares as long as uou havei life Savers

322i!

PD-O-llllfl‘ WlllT-O-OIIQ CLO-VI UGO-RICE GlllIl-O-IOII “IO-LIT

itemize;

The Spring

OPENING

Thursday afternoon’

and following days

You are cordially invited ‘to visit the store and see the

—New Hats—New Hose

—New Coats-—New Gloves

—New Dresses-—New Silks

—New Lingerie—New Wash‘ Goods‘

(llLwiegllligsilill-ein

or the Ten Commandments. In or- der that this Church would be self supporting and in no financial dif- ficulties, the people had to tithe all their incomes. So long as they kept those rules, particularly tithing, the Church prospered, and the whole nation $159 prospered. This Church had no fore'gn mission fields t0 support, no hospitals, with their stafl of doctor's and nurses dc- pending upon their funds No Bible Society spending thousands of dol- lars each year, translating and printing the scripture in hundreds of ‘ nguages, like our christian churches today are doing. Notwith- standing this, God made it very clear to them that they were to give a tenth of all their income to the support of the church. I have read the Bible through from cover to cover, a good many times. and so far I have faded t0 find where God gave the christian church any encouragement to dis- continue tith-‘ng. l Every time the Jewish church

failed to keep the Commandments cf God they were chastised severe- ly, and that in various ways, fail- ure of crops by drought, cafllllllfs locusts m, also by inroads made into their country by other war- like nations, burning their towns and carrying away their people as captives.

The Old ‘Testament closes with a definite challenge, accusing thcm to their face of no less a crime till-B robbing God. They were told plain- ly that this robbery consisted in withholding the tenth or tithe from God.

God never threatens a. P901116 but he will leave a way of c5081’!!! 0P0"- This time he plainly Illi-‘i H55 people to prove Him, saying: "Bring ye all the tithes into the store- house that there may be meat in mine house, and prove Me here- with, saith the Lord of Hosts, if I will not open you the windows of Kenyon, and pour you out a bless- ing that there shall not be room enough to receive it." Tits was a definite promise given by God who cannot lie, and f am firmly 60H"