Lead Opinion
On Mаy 24, 1909, appellant, who followed baseball playing for hire as a vocation, was charged, by affidavit in the Criminal Court of Marion County, with a violation of the Sunday observance law by playing baseball on Sunday, May 23, 1909. No question was raised as to the sufficiency of the affidavit, and appellant was tried on it and convicted by a jury. A motion for a new trial and a motion in arrest of judgment were successively overruled, and judgment was rendered, from which this appeal is taken.
The other assignments of errors center in the one question of the validity of the act of March 8, 1909 (Acts 1909 p. 436), which purports to amend §467 and to repeal a part of §468 of the act concerning public offenses, approved March 10, 1905 (Acts 1905 p. 584). Said act of 1909 reads as follows: “Section 1. Be it enacted by the General Assembly of the State of Indiana, that §467 of the above-entitled act be and the same is hereby amended to read as follows: Section 467. Whoever, being over fourteen years of age, is found on the first day of the week, commonly called Sunday, rioting, hunting, fishing, quarrelling, at common labor or engaged in his usual avocation, works
“Section 2. So much of §468 of said act approved March 10,1905, as makes it unlawful for any one to engage in playing any game of baseball between 1 o’clock p. m. and 6 o’clock p. m. on Sunday is hereby repealed.”
The record discloses, with others, the following uncontradicted material facts, upon which appellant was found guilty: That on and prior to May 23, 1909, appellant was a professional baseball player, and was pursuing that vocation as the manager and first baseman of the Indianapolis Baseball Club, which was associated with clubs in seven other cities, and with them formed the clubs of the American Association, playing a series of games in the several cities; that on Sunday, May 23, 1909, he participated, as the first baseman of the Indianapolis club, in a game played with one of the other clubs of the association on grounds maintained by the Indianapolis club in the city of Indianapolis, known as Washington Park; that the game was played between the hours of 3 o’clock and 5 o’clock in the afternoon of that day, and that there was no church nor hospital within one thousand feet of the grounds, or park, where the game was played.
Appellant was convicted on the theory that so much of the act set out as undertakes to exempt persons whose
The duty of this court in considering a question as to the
The following statement of the duties and responsibilities of the courts in relation to enactments by the legislature, by Frazier, J., in the case of Brown v. Buzan (1865),
There have been Sunday laws in our State throughout its history. Such an act was passed at the session of the first General Assembly, and was approved January 3, 1817 (Acts 1816 p. 165). This act contained numerous exceptions to the general application of the penalty • provided, and it continued in force without substantial change until 1905, when the legislature added to the exceptions, by the provision that it should not apply to “ persons engaged in the publication and distribution of news.” As has been seen, the act of 1909, supra, merely added the further exception of baseball playing under certain conditions, which exception is assailed as invalid in this case. Many times the law has been upheld by this court, together with all the exceptions contained in it, save the two just mentioned. Voglesong v. State (1857),
There probably has never been enacted a law for Sunday observance that was wholly general and without exception. Some prohibit generally all vocations of life, and except generally from the operation of the law, and save from its penalty, work in any vocation which may be determined as a matter of fact to be done in response to a present necessity or to charity. Others go further, and except some one or more designated businesses or vocations, the continuous exercise of which may be deemed necessary, either on account of the inherent nature of the business or the welfare of the public. Others again place the ban of the prohibitive statute on some one or more businesses or vocations of a noisy character, or otherwise offensive and disturbing to the full and peaceful enjoyment of the day as a period of rest or recuperation, or of devotion, as each individual may
Sunday laws, with varying exemptions from their general effect, within the range stated, have been uniformly held to be within the constitutional powers of lawmaking bodies.
In the case of Liberman v. State (1889),
In the case of People, ex rel., v. Hagan (1901),
From the case of People, ex rel., v. Zimmerman (1904),
In the case of State, ex rel., v. Judge (1887),
The constitutionality of a Sunday law, with numerous exceptions, was involved in the case of State v. Dolan (1907),
A statute of the State of Utah prohibited, in general, the keeping open on Sunday of any place of business for the purpose of transacting business therein, but also excepted from the general operation thereof, public baths, livery stables, retail drug stores, etc., and such manufacturing establishments as are usually kept in constant operation. In dealing with the contention urged on behalf of a barber who was being prosecuted under the general provisions of the act, that the exceptions made the act unjustly discriminative and rendered it invalid, the court said: “The exception permitting baths to be kept open on Sunday approaches nearest to the act here complained of; but the court is unable to say that there is such a similarity between keeping open a bath house and a barber shop that it was not within the province of the legislature to make a distinction between the two. Upon reflection, many points of difference in the manner in which each is conducted in this community are readily suggested. The court may not rightly assert a wisdom it would deny to the coordinate branch of government (the legislature), and interfere with the discretion of that department of government. All presumptions are in favor of the validity of a statute, and unless the courts can clearly say thаt the legislature has erred the act should stand, and the prerogatives of the legislature not be encroached upon. Courts may interpret, construe, declare and apply the law, but may not usurp the functions of the lawmaking power by assuming to interfere with or control the legislative discretion.” State v. Sopher (1902),
A statute of the State of Minnesota placed a general prohibition on all maimer of selling or offering for sale on Sunday any property, and then excepted from its general provisions prepared tobacco, fruits, confectionery, newspapers, and other articles, and then followed this exemption with a
In the case of Ex parte Koser (1882),
In the case of People v. Havnor (1896),
In the case of Petit v. Minnesota (1900),
This review of the cases involving the right of the lawmak
The exercise of the power of the legislature to make exceptions from the general effect of a penal statute is seen in many of the provisions of our criminal code affecting various things, persons and conditions. The act for the protection of fish, approved March 9, 1867 (Acts 1867 p. 128), was a general law for the protection of fish throughout the State for a certain number of years and át certain seasons thereafter, but it provided that the penalties prescribed should not be enforced against persons taking fish out of the Ohio and the St. Joseph rivers. This court held that both the act and the exception were valid. Gentile v. State (1868),
A later case, which involved the validity of our fish law, is that of Long v. State (1910), ante 17. Long was convicted of taking fish from thе Wabash river with a seine, in violation of §2541 Burns 1908, Acts 1905 p. 584, §619, and on appeal urged that the section in question was unconstitutional, because in violation of article 4, §22, of the Constitution, which prohibits the passage of local laws for the punishment of crime, and of article 1, §23, of the Constitution, against granting special privileges and immunities. Section 2541, supra, makes it unlawful to take fish from any of the waters of the State by means of any gig, spear, seine, net or trap, etc., under a heavy penalty, but contains a proviso
Section 449 of the public offenses act (Acts 1905 p. 584, §2345 Burns 1908) makes it unlawful for all persons except travelers to wear or to carry any dirk, pistol, bowie-
In the case of Johns v. State (1881),
Our statute relating to the practice of medicine, which provides for licenses and declares penalties for violations, makes certain exemptions from the general application of the penal provisions. §8400 et seq. Burns 1908. This court in Parks v. State (1902),
The case of Chandler Coal Co. v. Sams (1908),
Another late case decided by this court, which involved a contention that a penal law, which was enacted for the protection of miners but which excepted certain mines from the general operation of the law, was invalid, is that of State v. Barrett (1909),
In the case of Griffith v. Connecticut (1910),
If the act in question and the circumstances connected with it were such that in considering the exemption of ball playing from the general provision against Sunday work we must say that it is patent that the legislature intended solely to give baseball players an advantage over those pursuing other vocations, or that it intended to place it in the power of those employing baseball players to force them to pursue their calling seven days in the week, then we would be required to hold the action of the legislature in passing it to be purely arbitrary, and the act therefore in conflict with the constitutional restraints upon the legislature. But we cannot do this, for there are manifest conditions and reasons existing upon which the legislature might have acted, which they in the exercise of their discretion might have deemed full warrant for making the exemption.
The purpose of the required observance of Sunday as a day of cessation of the daily vocations of the people, being based on sanitary reasons, it is obvious that the purpose in all cases could not best be carried out by the inertia of absolute rest. The wearing effects of the monotony of daily toil in office,
That baseball has come to be the one great American outdoor game, that it is played during the summer season throughout the land by boy, youth and man, beginner, amateur and professional, in country, village, town and city, that it is played out of doors in seasonable weather, that it engages the mind alike of the participant and the spectator in an entertaining way, that it trains the body to vigor and activity and, to a degree, the mind to alertness, that the playing of a game requires but a fraction of a half-day, that it cannot be successfully played at night, that those who witness it find in it for the time a relief mentally and physically from the stress of the intense life we as a people lead — are facts known to all men, and of which courts and legislatures cannot be wholly ignorant. And we cannot say that the legislature did not have in mind that good might flow to many, who during all the secular days of the week might be compelled to persist in continuous toil in office, store, shop or factory. By spending a part of the afternoon of Sunday in the open air their minds might be diverted by interest in the popular game. And too, it is well and commonly known that the season for baseball, both on account of the nature of the game and the actual practice, is short, that the hours of each day devoted to its pursuit by the players engaged in it are few, and that weather conditions enforce frequent pauses; and it cannot be said that the legislature did not conclude, as it might, that the welfare of players, therefore, needed no such restriction on their natural right to pursue their work on each of the seven days of the week as might be necessary in other employments.
It would seem to follow then that it has the corrеlative power to withdraw a class from inclusion in the inhibition of Sunday labor for the good of others, if reason manifestly exists upon which the legislative action may be based. It being conceded that baseball playing in its nature is subject to classification by itself in legislation having reference to Sunday observance, its classification becomes then a legislative question and not a judicial one. Whether it shall be subjected to such legislation, or in what degree, and under what circumstances and restrictions, is for the legislature to say, within the reasonable exercise of its discretion which ends only where arbitrary action begins.
A reason of such a character as to indicate an absence of purely arbitrary action, upon which the legislature might have been moved to act in exempting ball playing from the penalty of the act in question, is manifest. As much as we, as individuals, may desire the integrity of the Sabbath preserved in full measure, we cannоt say that the legislature acted arbitrarily in making this exemption, or that it is clearly, palpably and plainly in conflict with that provision of the Constitution claimed, and we therefore hold that it is a valid enactment.
The judgment is therefore reversed, with instructions to the trial court to sustain the motion of appellant in arrest of judgment.
Dissenting Opinion
Dissenting Opinion:
I am unable to concur in the majority opinion in this case.
The amended §467 together with the amendment to §468 (Acts 1909 p. 436) specifically singles out the game of baseball from football and other games, and exempts the former from the general interdiction. This is in
For the same reason it is a special law, in violation of article 4, §22, of the Constitution prohibiting the enactment of local or special laws for the punishment of crimes or misdemeanors.
If is tantamount to saying that it shall be unlawful, not upon religious grounds, but upon grounds of health and recreation, for any person to play any game except baseball, on the forbidden day.
If there could be any ground of distinction between, or classification of, baseball players, as distinct from players of other games, we would be bound to yield to the legislative discretion. If it could be said that it is allowable because it provides recreation for the worn and tired persons, who cannot yield any other day from their work, to witness a game in the daytime, the same thing is true as to football, basketball, polo, cricket, or any other outdoor game, but they are interdicted and excluded from the privilege, and the sightseer, and those who are seeking recreation, are excluded from other games, and a distinction is made as to both, so that those persons who are within the related or sаme class — that is, all persons desiring to engage in other games as well as those who may desire to witness them— are denied the privilege where a fee is charged.
I am unable to perceive that there can possibly be any basis for such distinction or ground upon which the classifi
The classification is openly and frankly made, as is shown by the repealing clause of the second section, leaving no doubt as to the purpose intended. A classification in which all within the class, or naturally related to it, are not embraced, cannot be justified. Indianapolis Traction, etc., Co. v. Kinney, supra; Bedford Quarries Co. v. Bough, supra; Town of Longview v. City of Crawfordsville, supra; Dixon v. Poe, supra.
It is also invalid as a local law, in violation of article 4, §22, of the Constitution. The last clause of the act permits the game to be played “ not less than one thousand feet distant from any established house of worship or permanent church structure used for religious services, or any public hospital or private hospital erected prior to the passage of this act.” The clause specifically interdicts playing within one thousand feet of established houses of worship, or permanent church structures, or public or private hospitals, “ erected prior to the passage of this act.” (Our italics.) By its terms, therefore, the game may be played within any distance of such structures erected after the passage of the act, and thus it would be unlawful to play within one thousand feet of these structures if erected prior to the passage of the act, but lawful to play within any distance of those erected later, by reason of which conditions the law would necessarily be local and in violation of said section twenty-two. These provisions of the Constitution were adopted by the people as restraints upon legislative power, and a cоrrect construction should be courageously adopted by the courts to effectuate the intent of the people as expressed in the organic law, for by erroneous interpretations of its provisions, and by erroneous applications of the doctrine of classification,
No doubtful case should give rise to annulment of a statute as the deliberate act of a coordinate and independent branch of government, but, by attempted classification, and by laws of only local application, to which there is the most natural tendency, and by extension by construction, in deference to class interest and special cases, the organic law may practically be nullified, until we are in danger of having all the train of evils resulting from local or special legislation, and inequalities of rights, which it was a leading purpose of the Constitution of 1851 to prevent.