138 A. 497 | Pa. | 1927
Lead Opinion
Argued April 12, 1927. Defendant, a corporation of the second class and therefore organized for profit, was incorporated under the General Act of April 29, 1874, P. L. 73, and its supplements, for the purpose of organizing and maintaining a team or club for the playing of baseball. It holds a franchise as a member of the American League of professional baseball clubs and owns a baseball park known as Shibe Park, situated in the City of Philadelphia. All its players are paid and it charges the public an admission fee to see the games. In the summer of 1926, appellant *140 announced that it intended playing professional baseball at its parks on Sundays, and on Sunday, August 22d, it did play a game of professional ball with another team of the American League, to which the public was admitted on payment of an admission fee. Thereafter the attorney general in behalf of the Commonwealth filed the suggestion for the writ of quo warranto in this proceeding, his averment being that the playing of the game of baseball on Sunday violates the Act of April 22, 1794, 3 Smith's Laws 177, and that appellant is without power or authority of law, under the letters patent granted to it, to play baseball on Sunday. The answer of defendant denied that the playing of baseball on Sunday is a violation of the Act of 1794 or that it is without authority to play the game on that day and averred that the writ of quo warranto would not lie against it because the sole penalty for its so doing is the payment of the sum of four dollars as provided in the act. The attorney general having demurred to the answer, the court below after hearing sustained the demurrer and entered a judgment that defendant be ousted from any right, privilege or authority to maintain or conduct upon its grounds any game of professional baseball on Sunday and directed that a perpetual injunction issue restraining it from so doing; from the judgment and decree thus entered defendant brings to us this appeal.
The questions we are asked to pass upon may be thus summarized: (1) Is the playing of professional baseball on Sunday as defendant played it a violation of the Act of 1794? (2) Is the act unconstitutional for uncertainty? (3) Is quo warranto the proper remedy and the judgment entered a proper one?
As to the first and main question we fail to see how, when the language of the act is called to mind and account is taken of what defendant is and what it actually did, it can be affirmed that the statute was not violated. To hold otherwise would mean that words do not have *141
their ordinary meaning. The statute says "If any person shall do or perform any worldly employment or business whatsoever on the Lord's Day, commonly called Sunday, works of necessity and charity only excepted . . . . . . and be convicted thereof, every such person so offending shall, for every such offense, forfeit and pay four dollars, to be levied by distress; or in case he or she shall refuse or neglect to pay the said sum . . . . . . he or she shall suffer six days imprisonment in the house of correction of the proper county." The word "worldly" as here used means "concerned with the enjoyments of this present existence, secular," "not religious, spiritual or holy." Chief Justice LOWRIE, speaking for the court in Com. v. Nesbit,
The claim here made, — the right to play baseball on every day of the week notwithstanding the Act of 1794, — is the same that was made for the licensees of taverns in Omit v. Com.,
Christianity is part of the common law of Pennsylvania (Updegraph v. Com., 11 S. R. 393) and its people are christian people. Sunday is the holy day among christians. No one we think would contend that professional baseball partakes in any way of the nature of holiness and when contrasted with things which do, it is bound to be categoried as worldly. Great emphasis is laid upon the fact, in appellant's brief, that the baseball game was conducted without undue noise, that there were no disturbances, and altogether in a manner not to annoy in the slightest those living in the neighborhood of the ball park or to interfere with religious worship. It is not necessary that one, in carrying on a worldly employment on Sunday, should do any of these things before being guilty of a violation of the act, nor is it essential that there should have been a breach of the peace: Com. v. Foster,
On appellant's second proposition that the act is unconstitutional for uncertainty, we think very little is required to be said. See 37 Cyc. 541; 12 C. J. 1275. It has been on the statute books for 133 years and has been the subject of much judicial consideration. When its language is given its ordinary not a strained construction, its meaning we think is plain. It may be that those who do not wish to understand or abide by its provisions find them uncertain; surely those who wish to follow the custom of our people in Sunday observance do not so find the interdictions of the statute. We can see no basis whatever for the argument that the act violates the 14th Amendment to the federal Constitution.
This brings us to the third question presented by appellant, the one most stressed in oral argument and in printed brief: Is quo warranto the proper remedy and *144 the judgment entered a proper one? In passing upon this question, it is important at its threshold to consider who brought the proceeding. It was initiated by the attorney general, the chief law officer of the Commonwealth and necessarily has behind it the approval of the State's highest executive officer, the Governor. The people's mandate to him in their fundamental law (Constitution, article IV, section 2) is "The supreme executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed." This proceeding was brought to the end that this mandate should be fulfilled.
Appellant does not contend that a corporation may not be ousted of all its franchises for wilful misuser. If it may be ousted from all of them, certainly it may be of part. A corporation may be ousted from the exercise of powers not granted and powers forbidden to be exercised (Act June 14, 1836, section 11, P. L. 621; 22 R. C. L. 672; High's Extraordinary Legal Remedies (3d ed.) sections 647, 648; Com. v. Delaware Hudson Coal Co.,
Appellant argues that its charter gives it express power to play baseball. This may be admitted and yet there be no denial of the right to the writ which is one of inquiry: By what warrant are the acts done of which complaint is made? It does not avail to say to the Commonwealth, you granted me the privilege to do this thing, if it appears that what is being done under cover of the charter is unlawful. If all that was being carried on was unlawful, then there would be no warrant for its doing and no question of the propriety of the writ; if part of what was being carried on was lawful *145
and part was not, then there would be warrant only for that which was lawful; what was unlawful, not being justified, would have to cease. It would seem to be well nigh ridiculous to hold that by its writ of quo warranto the Commonwealth may interdict that which is entirely unlawful but cannot lop off that part which is not within the law. The use of quo warranto to inquire into particular acts of private corporations alleged to be unlawful is adverted to in High's Extraordinary Legal Remedies, sections 677b and 677c. It was said in Com. v. Banks,
We agree, and have so announced, that courts should act with extreme caution in proceedings which have for their object the forfeiture of corporate franchises (Com. v. Monongahela Bridge Co.,
The argument that the Act of 1794 provides the sole penalty for its violation cannot be made in this proceeding where the Commonwealth itself through the attorney *147
general seeks to call one of its creatures to account. "There can be no doubt that a corporation may be proceeded against by quo warranto for a misuse or perversion of the franchise conferred upon it by the State, notwithstanding its officers and agents may at the same time be amenable to the criminal law for offense committed by them in the perversion of such franchise": State ex rel. Hadley v. Delmar Jockey Club, 200 Mo. 34, 92 S.W. 185; 9 A. L. R. 106. Speaking through Mr. Justice SIMPSON, in Com. ex rel. v. Wilkins,
As to appellant's contention that "The sentence of corporate death cannot be imposed for minor infractions which do not go to the essence of the corporate franchise nor inflict injury upon the public generally," while we are not prepared to say there is no public injury by a wilful violation of a criminal law, it would seem that all necessary to be said is that the corporation is not under sentence to death; the court has ousted it only from any right, privilege or authority to maintain or conduct any game of professional baseball on Sunday.
The judgment and decree of the court below are affirmed at the cost of appellant.
Dissenting Opinion
While I agree with the majority of the court that the playing of professional baseball is a business, or worldly occupation, the performance of which, on Sundays, violates the Act of April 22, 1794, yet I cannot agree that quo warranto is a permissible remedy to deal with such a violation of law. The penalty and also the appropriate remedy are provided in distinct and unmistakable terms by the Act of 1794 itself. Under well established rules of law, these provisions are exclusive, whether the offender be a corporation or otherwise. In Com. v. Smith,
The fact that defendant is a Pennsylvania corporation does not place it at the uncontrolled mercy of its creator. Except as affected by constitutional or express statutory provisions, the Commonwealth has like control over the social conduct of its individual citizens, officers of its corporations, including municipal officers, and the corporations themselves; but the courts should not permit it unwarrantably to coerce the conduct of one of them any more than of another. To my mind, the principle of Com. v. Smith (where the effort was to compel municipal corporate authorities to take a certain line of action), and the plain words in which our ruling is there expressed, mean, and in effect say, that the Commonwealth cannot by injunction in any form enforce the Act of 1794, but is confined for its enforcement to the penalty and remedy therein particularly provided.
For the reasons stated, and to the extent above indicated, I dissent.
Dissenting Opinion
I feel that it is my duty to record my dissent from the conclusion reached by the majority of the court on the *148 judgment about to be entered in this case. I place it on the ground that quo warranto is not the proper remedy in such a case, and, therefore, the court below was without power to enter the decree it did.
This is an unusual proceeding to compel obedience to a penal law. Quo warranto, the writ used for that purpose, is an extraordinary remedy, to be applied with extreme caution, and should never be allowed except under express statutory authority. This is the first instance where the writ has been used to enforce a criminal statute as far as the writer of this opinion is able to discover. When it is invoked to compel a corporation not to do certain acts, it should be granted only when the company fails to fulfill a major purpose for which it is organized (High on Extraordinary Leg. Rem. section 648; Com. v. Monongahela Co.,
But the writ is here successfully used to forfeit part of a corporate life for playing baseball on Sunday, the commission of that which the law looks on as a very minor offense compared with crimes generally, (Com. v. Commercial Bank,
All parties to this case have agreed that the game in question was played in an orderly manner; it did not *149
constitute a common or public nuisance. The commission of the offense did not interfere with the tranquility or peace of the neighborhood, or of those engaged in religious worship; nor did it harm or injure any person. A court of equity would not attempt by injunction what may, under the majority opinion, be done by quo warranto, unless the property of complainant or personal rights dependent thereon was injured by the act: Sparhawk v. The Union Passenger Ry. Co.,
Appellee contends that the Act of 1794 prohibits playing baseball on Sunday. If this be true, then the club *150 could not play on Sunday without subjecting itself to the penalty of the act, four dollars for each offense. By these proceedings, an additional punishment is, in effect, added by judicial construction. A part of its corporate life is taken from it with a further penalty that if it does not desist, its charter will be revoked. Thus a new and different punishment, other than that which the legislature has deemed ample, is here provided for, not by law-makers, but by the courts.
By the Act of March 21, 1806, 4 Smith's Laws 332, where a statutory remedy is provided, it must be followed. The remedy under the Act of 1794 was by summary proceeding in a hearing before a magistrate, with the punishment fixed at four dollars for the offense. An individual, partnership, association, or joint stock company, is subject to no other penalty. The Act of 1806 means that the proceeding mentioned in the Act of 1794 is an exclusive remedy, and we so held in Com. v. Smith, supra. Com. v. Wilkins,
The act authorizing quo warranto did not, by its terms, include the present cause of action. The authority cited for the action is the 3d section of the Act of June 14, 1836, P. L. 621. But this gives authority to institute quo warranto only where the corporation proceeds "without lawful authority" or "exercises any power, privilege or franchise, not granted or appertaining to such corporation." The Attorney General's right to proceed is limited by the act. Appellant was organized and chartered to play baseball; this right extended *151 to every day of its corporate life. The power to perform its corporate function is there, but playing on a particular day is penalized by the Act of 1794. If the legislature should see fit to remove the penalty, no new steps would be necessary to enable the club to play on Sunday. What appellant did was within its general corporate powers, but penalized by a civil regulation.
If the law of the majority opinion is to be followed, the Attorney General ought to institute proceedings against all corporate violators of the Sunday law, including railroad companies, trolley car companies, all taxicab companies and motor bus companies, which are identical in purpose with taxicab companies, and all carriers whose passengers are not on their way to church or religious service or who are travellers whom necessity or mercy compels to move, but who are pleasure seekers or engaged in a business journey.
Under the majority opinion, corporations that sell or print newspapers on Sunday, or for Monday delivery, ought to be proceeded against; telephone and telegraph companies, which furnish the news, should be included. Indeed, if this entirely new flexible remedy is to be upheld as the law, it becomes the open gateway for the punishment of all corporate violators of law, be it the Sunday law or other laws. Manufacturing establishments which do not properly guard machinery, the same concerns, or others, with large buildings, and hotel companies, not properly equipped with fire escapes, mercantile establishments, telephone companies and others that happen to employ labor illegally, or work them overtime; all may be proceeded against by quo warranto. In fact every corporation could be subjected to the forfeiture of its charter for violations of the laws by its agents or employees. This is the plain logic of the majority opinion.
It is my judgment the legislature never intended the writ of quo warranto to cover the cause for which it is here used. There is no reason for segregating the facts *152 of this case from the great mass of corporate violations and giving them preferential treatment, as I feel we shall be obliged to do in the future if we are to follow the decision of the majority and administer to other violators the same treatment as here meted out to appellant.
It is not necessary for me to express an opinion on the other branch of this case, as to whether playing baseball violates the Sunday Act of 1794; for, as I view it, the Commonwealth must be confined to the remedy there provided by the legislature. In my opinion, this case is controlled by Sparhawk v. The Union Passenger Ry. Co., supra, and Com. v. Smith, supra, and the judgment should be reversed.
