The opinion
I am of the opinion that the application for rehearing should be denied, as I still adhere to the following views expressed in the original opinion:
"For the purposes necessary to a consideration of this appeal, the statute claimed to have been violated is as follows: 'Any person who, being a merchant or shopkeeper, druggists excepted, keeps open store on Sunday,' " etc.
It will be observed that under this statute no specific article of merchandise is either prohibited or permitted to be sold. The statute is directed against all merchants or shopkeepers except druggists, and makes it a violation of the law for them to keep open store on that day. But for the statute against it, any merchant might open up a store or shop on the Sabbath day, and proceed to sell and offer for sale his wares and merchandise. Thus, for good and sufficient reasons, the Legislature has seen fit to prohibit all merchants and shopkeepers, except druggists, from continuing their traffic on the Sabbath day. If it were necessary we might surmise why the Legislature made an exception in favor of druggists, but no surmise is necessary or left open to us. The law requires the court to strictly construe penal statutes, and, where the meaning is plain, the court cannot do otherwise than construe them as they are written. In Jebeles et al. v. State, 131 Ala. 43 , 31 So. 377 , Mr. Chief Justice McClellan has clearly defined the meaning of keeping open store; what it means and involves. This statute authorizes druggists who keep such articles as are ordinarily kept by well-regulated drug stores to keep open store and under the *Page 218
agreed statement of facts this defendant cannot be convicted without reading out of the statute something that is clearly expressed therein.
For these reasons, I am of opinion that the rehearing should be denied.