equalization to increase the assessment | authorized in their discretion to levy a value of the property of a county in harmony with the method prescribed by the statutes, and the right to the mandamus compelling the officers to raise the valuations to full value of the property was upheld. poll tax to meet the obligations of the county, a mandamus might properly be issued to compel them to do so, notwithstanding their authority to levy poll taxes had since been taken away by a law of the state, the case being one where a judgment creditor could not be satisfied by other methods of taxation. By the act of 1895 the valuation is to be made by an officer who is not an officer of the city, but one who, when he values prop A somewhat similar question was decided in People v. Strother (1885) 67 Cal. 624, 8 Pac. 383, where it was held that mandamus would lie to compel the auditor to enter on his books an increase of the assessments by aiding a percent-erty, values it not only for city purposes, age in compliance with an order by the state board of equalization. The application was not made by a creditor, however, so the case is not within the scope of this note in that particular. And Dillon v. Bare (1906) 60 W. Va. 483, 56 S. E. 390, differs from the decision in UNITED STATES EX REL. FALLS CITY CONSTR. Co. v. JIMMERSON, both in the fact that the action was brought by the state and in that the assessor claimed to have assessed the property at its full value according to his best judgment. This latter fact of course brought the case clearly within the rule that the officer's discretion cannot be controlled by mandamus, provided he has exercised it in good faith, no matter how erroneous his judgment may have been. The exact question here under annotation, together with the defense that assessment at full value would impose an unequal share of state taxes on the county, was discussed in Cunningham v. Cleveland (1907) 82 C. C. A. 55, 152 Fed. 907, but not decided on the merits because of inadequate pleadings. The court said: "The other assignments of error seem to be intended to raise two questions of an interesting character, of which one is whether the act of the legislature of Tennessee of 1895, which transfers the duty of valuing the property of the city for assessing taxes from the recorder of the city to the county assessor, who makes, under that act, a single valuation for state, county, and municipal purposes, impaired the obligation of the city in respect of his contract, which was of earlier date. Under the then-existing law the recorder valued the property in the city only, and he was by the statute required to value it at its true cash value. This the relator was entitled to have done, and he might probably have compelled the recorder to make such a valuation. In Deere v. Rio Grande County (C. C.) 33 Fed. 823, it was held by Mr. Justice Brewer, then circuit judge, that where at the date of the obligation the commissioners were but for those of the state and county, and he could not be compelled to make a valuation for the former without also doing it for the latter. In normal circumstances the mere transfer of such a duty from one officer to another would not impair any contract obligation. But here the difficulty, as pointed out by the relator, is that the county assessor values property, and has been during recent years valuing the property in this city, at only 70 per cent of its true cash value. The result is that 30 per cent of value cannot be taxed for city purposes at all. Nor has he any available remedy as he would have if the recorder of the city were charged with the duty. A valuation of the latter would be made for city purposes only, and a compulsory process would be adapted to its proper purpose. But a valuation by the county assessor of the property in the city could not be made by him at its true cash value without drawing upon it an unequal burden of state and county taxes, unequal as respects the state taxes with all other property in the state, and as regards the county taxes with the other property in the county. Apparently the result would be to effect an inequality of taxation which is forbidden by the Constitution of the state, and affect the legality of taxation elsewhere. See Taylor v. Louisville & N. R. Co. (1898) 31 C. C. A. 537, 60 U. S. App. 166, 88 Fed. 350. But we are prevented from expressing a definite opinion upon the question thus presented by the fact that there is no adequate foundation laid in pleading and procedure for invoking the judgment of the court upon it. The other question is whether the court might compel the city to make a distinct levy of 75 cents on each $100 of the 30 per cent of valuation which has not been taxed, and apply this to the payment of the judgment. But here we have the same difficulty. The conditions required for awarding this special relief are not found in anything which the relator has done or asked in the requisite legal form of procedure." There are also many other cases cited in the opinion in UNITED STATES EX REL. FALLS CITY CONSTR. Co. v. JIMMERSON, ante, 1102, and in the briefs of counsel his business. He testified that his show was clean and educational in character. Several witnesses testified on behalf of the defendant. Some of these witnesses were officers of high rank and prominent in Army circles at Camp Pike; others were prominent in the social and business activities of the cities of Argenta and Little Rock. One of the appellant's witnesses was D. M. Pixley, mayor of Argenta. He testified that at the time the defendant operated his moving picture show there were between 4,000 and 5,000 soldiers at Ft. Logan H. Roots, and, taking into consideration the unusual conditions that exist over there, he was of the opinion that clean moving picture shows were a necessity for the soldiers. One of the defendant's witnesses, W. B. Smith, who was president of the chamber of commerce of Little Rock, and as such took a most conspicuous and commendable part in the location of the cantonment in proximity to these cities, had given the matter of camp activities and other matters connected with it considerable thought and APPEAL by defendant from a judgment time. His testimony fairly illustrates the of the Circuit Court for Pulaski County, convicting him of Sabbath breaking. Affirmed. Statement by Wood, J.: character of the testimony given by each of the witnesses who testified on behalf of the appellant. He testified, in part, as follows: or not the operation of clean and wholesome picture shows on Sunday was a neces sity? Q. Taking into consideration the number Section 2030 of Kirby's Digest reads as follows: "Every person who shall, on the 29th of July, approximately 4,000 men, and of soldiers camped at Ft. Roots on the Sabbath or Sunday, be found laboring, or shall compel his apprentice or servant to of men camped there and the hours for conditions as they existed with that number labor or to perform other services than cus-getting off to come to town, state whether tomary household duties, of daily necessity, comfort or charity, on conviction thereof, shall be fined $1 for each separate offense." Louis Rosenbaum was convicted of violating this statute. The proof on the part of the state consisted in an admission by the defendant that he had operated a moving picture show in the city of Argenta, Pulaski county, Arkansas, on Sunday, July 29, 1917; that he charged for admission to the show; that he operated a moving pic ture show in the afternoon of that day, and worked employees in connection with Note.. 1 The applicability of Sunday laws to exhibitions of moving pictures is treated in the notes to Topeka v. Crawford, 17 L.R.A. (N.S.) 1157; Re Hull, 30 L.R.A. (N.S.) 465 and Zuccarro v. State, ante, 354. A. I think so. He was then asked to state why, and answered: "The soldiers have their entire Sunday off, except those who are on some particular duty. Their mornings are devoted, or should be devoted, to religious services. The afternoon is on their hands. They are away from their homes. They are largely in strange communities; and in my mind and opinion it is to the interest of the soldiers that they should have clean and wholesome diversion for the Sunday afternoon. I am clear in my opinion that the picture shows, such as we have in Little Rock and Argenta, and Sunday baseball, 1110 one of the clean sports of the country, (25,000 and 40,000 soldiers located at Camp On cross-examination he stated: "I am not in favor of violating a statute law, but common practice in the community justifies the exception to the law as we have it practised in our community on many things that are considered necessities on Sunday. Personally, I care nothing for Sunday baseball and do not favor it except under the conditions I have mentioned, and I would not advocate the violation of the statute on it. I like picture shows as well as drama. I consider them of high educational value." He was asked if he based his opinion of the necessity of moving picture shows here on Sunday on the fact of the unusual situation of having so many soldiers in close "I proximity to the town, and answered: do not consider it a necessity under normal conditions in the city; base it entirely upon the ground as stated, that we have a large number of men here in July and now, and a large number of men detached with no home life and none of the soft and loving influence of home life that would take them there for their rest and diversion. cannot expect the men to give attention to the spiritual life the entire Sunday. Get him to devote some hours in the morning to religious and spiritual matters, and you have accomplished all that is possible with the average man. I base it on the large If we had 8,000 number of men detached. or 9,000 laborers imported here, I would say that the conditions were just as urgent as for the soldiers." You It was shown by Colonel James, of the 153d Infantry (formerly First Arkansas), strenuous that the soldiers underwent training, requiring the physical movements of their entire bodies. The hours of training were from half-past 7 in the morning until half-past 3 in the afternoon, with an hour at noon for luncheon. One fifth of the men had permission to visit the cities of Argenta and Little Rock each night, and on Sunday they all had that permission, were on guard duty. except those who Sunday was the recreation day for all the men. It was shown that before the night of the moving picture show the defendant gave out a lot of passes; he had some 300 passes distributed. He was not selling tickets on the night of July 29th; just took the money, if they offered it, and let them pass in. It was further shown that there were 70 soldiers in attendance upon the picture It was show on the occasion mentioned. contemplated that there would be between Pike. are Eliminating that testimony of the wit- The state objected to the opinion ev- Messrs. H. L. Norwood and Rhoton Messrs. John D. Arbuckle, Attorney When the evidence is considered, it, after all, is but an expression of opinion on the part of the defendant's witnesses as to the public policy of Sunday picture shows at the time and place involved; and it cannot be said to prove that the operation of picture shows on Sunday is in fact a necessity within the meaning of the law. Lee Wilson & Co. v. State, 125 Ark. 159, 187 S. W. 937; Shipley v. State, 61 Ark. 216, 32 S. W. 489, 33 S. W. 107: State v. Goff, 20 Ark. 290; State v. Ryan, 80 Conn. 582, 69 Atl. 536; Quarles v. State, 55 Ark. 10, 14 L.R.A. 192, 17 S. W. 269. Where the statute against Sunday labor contains no exceptions, the nature of the business operated by the defendant is immaterial, and the fact that it is a work of necessity constitutes no defense. 37 Cyc. 548, ¶ c; Com. v. Dale, 144 Mass. 1 363, 11 N. E. 534; Com. v. Dextra, 143 the tribunal alone must determine. LawMass. 28, 8 N. E. 756. Where there is no conflict in the evidence, and where such unconflicting evidence establishes the guilt of the defendant, it is the duty of the trial court to direct a verdict of conviction. Roberts v. State, 84 Ark. 564, 106 S. W. 952; Josey v. State, 88 Ark. 269, 44 L.R.A. (N.S.) 463, 114 S. W. 216. son, Expert Opinion Ev. p. 557. Here the issue is not what the law might or should be, but the issue is: Did the appellant violate the law as it is? The appellant testified that he was operating a moving picture show that was clean and educational in character, without giving the facts upon which he based such conclusion. This bald expression of opinion on his part, and likewise the expressions of Wood, J., delivered the opinion of the the earnest conviction of the witnesses tescourt: The court, upon the objection of the state to the opinion evidence of the witnesses, should have excluded such testimony from the jury. But the ruling of the court directing the jury to return a verdict of guilty, notwithstanding the opinion of these witnesses, was, in legal effect, tantamount to excluding such evidence. This ruling of the court was correct. The witnesses who testified on behalf of the appellant were unanimous in the opinion that the operation of clean, wholesome, and moral picture shows in the cities of Little Rock and Argenta, under the conditions above stated, was a necessity for the physical comfort and moral well-being of the soldiers who were located at Ft. Logan H. Roots and Camp Pike. Considering the general intelligence and high standing of these witnesses, their opinions would be entitled to great respect and might have a cogent influence in any subject-matter of controversy where it was competent and proper to take into consideration such opinions in determining the issue involved. Those opinions, and especially the arguments to sustain them, might be addressed with perfect propriety to the legislative department of the government, whose province it is to enact laws; but they certainly have no place before the courts, which have no power to legislate, and whose exclusive and only province is to interpret the laws as they have been enacted by the legislature. It is a familiar rule, without exception, that the opinion of a witness not founded on science or in relation to any special business, art, or trade requiring peculiar knowledge, but given purely as the witness's theory concerning an issue of morals or duty, is inadmissible, whether such opinion be by a professional or nonprofessional witness. See Rogers, Expert Testimony, p. 32, § 11. It is also a well-established rule of evidence that the opinion of an ordinary witness on a question of law or on a question which it is for the jury to decide on the facts is inadmissible. Opinions or conclusions are inadmissible on issues which tifying in his behalf that the operation of such a show was necessary for the soldiers, were a patent usurpation of the functions of the court and jury, and, under the above rule, were wholly incompetent. Some of the witnesses, in advocacy of the moving picture show for the benefit of the soldiers at Camp Pike, declared with perfervid enthusiasm that, although under normal conditions such shows might not be necessary, yet, in view of the exigencies now existing on account of the location of so many soldiers at Camp Pike, the term “necessity,” as used in the statute, should be so construed as to meet the present conditions. Of course, such opinions are not evidence. They relate to the policy of the law, with which the courts have naught to do. They ignore the fact that the statute under consideration is a general one, with no exceptions in favor of those who may operate moving picture shows in the cities of Argenta and Little Rock because of conditions existing in those cities. Moreover, all such views evince either a total misconception or superficial knowledge of the statute, or else but slight regard for laws intended to protect and preserve for the civilization of mankind one of the most cherished and venerable institutions of the Christian world. Those who believe in God, and accept the Bible as the revelation of His will, look upon the Sabbath as of divine origin. They believe that the Creator himself established it by the fourth commandment in commemoration of that period in the cycle of creation designated by Him as the "seventh day," when He ended the work He had made, and blessed and sanctified that day as a day of rest. Gen. ii.; Ex. xx. 8-11. "The scope and meaning of the Sabbath day"-the seventh day of the Hebrew week -"was very much extended and amplified by the provisions of the laws of Moses." The Americana, vol. 18, verbum "Sabbath." When Jesus came, He found that a certain religious sect among the Jews were SO fanatical in the observance of these laws, and were adhering so closely to the very letter of the fourth commandment, that they considered it a violation of the 1112 same for one to be engaged in any work | philosopher and teacher; that He estab of necessity or charity. For instance, the lished His church, and His disciples were or a a From the time of the inauguration of the Christian Sabbath, which is almost coeval with the existence of Christianity itself, it is easy to trace its history down to the present day; for, although it began as purely religious institution, it had had such a marvelous effect on the betterment of the civil conduct and life of the nation that in the early part of the fourth century the Christian emperor Constantine issued decree commanding all the people of the city of Rome to rest and cease from their ordinary avocations on that day, making an exception, however, in favor of those engaged in agricultural pursuits, “who, on account of the bounty of heaven, may have lost the opportunity to reap or sow their grain on another day." As showing some of the things that are not in keeping with the observance of Sunday as it was celebrated by the Christians in that early time, Theodocius, in the latter part of the fourth century, issued a decree suspending theatrical shows and circus races on Sun"These historical facts," says the day. Americana, "are important as bearing on the present Sunday laws of England and America." Those who accept the authenticity of the Scriptures as contained both in the Old and New Testament believe that Jesus was the Son of God, as well as the Son of Man; that He was made flesh and dwelt among us; that He was in the beginning with God; that He was a divine teacher, and hence could teach as one having all authority, and not as the scribes; that He arose from the dead on Sunday, the first day of the week under the Julian calendar. John, i. 1-14; Luke, xxiv. 1. Those who do not accept the biblical account of the divine origin of the Sabbath must, nevertheless, yield to the voice of tradition and secular history, which abundantly establish the fact that at the time of the coming of Christ there existed an institution of religion which had its origin some time in the dim and remote past, which was called the Sabbath, and which was then being observed by the Jewish people on the seventh day of the week of the Hebrew calendar in commemoration of the day on which it was believed by them that God, having finished the work of creation, rested from his labors and consecrated the day as one of rest and worship. And those who do not believe in the biblical account of the divinity of Jesus and of the manner of His death and resurrection must concede that profane history indisputably | among other things, provides: establishes the fact that a man called Jesus tradesman, artificer, workman, labourer, or lived; that He was at least a great moral' other person whatsoever shall do or exercise The Frank Emperors had Sunday observed, the Code of Napoleon ordered it, and the observance of the Lord's day has been The Americana. Coming enjoined by statute in England from the earliest times. on down to the legislation in the mother country, which forms the basis of such legislation in practically all the states of the Union, we find that in the reign of Charles II. an act entitled, "An Act for the Better Observation of the Lord's Day, Commonly Called Sunday," was passed, which, "That no |