*1
415'
Dissеnting Opinion
J.:
Wright,
working
to continue
willing
These
were
employes
so as to afford
basis of the existing agreement
a new contract. The em
additional
time to negotiate
to such extension.
It was the
agree
refused
ployer
authorities
ascertain
compensation
duty
of and
for the work
responsibility
stoppage.
final cause
of fact was determined in
question
This controlling
and we are not at
to set
employes,
liberty
favor
in such
finding
regard
the Board’s
when it
aside
affirm
the evidence.
the deci
supported
upon
of the Board
McGinnis Un
authority
sion
184 Pa.
Compensation
Superior
Case,
Martin D. for appellants. O’Malley, Robert G. appellee. District Dean, Attorney, Opinion Per November 14, 1958: Curiam, The judgment of sentence of the court below in each case affirmed opinion spe- on the of Judge Bodie, Quarter in cially presiding the Court of Sessions Susquehanna reported as County, Pa. D. & C. 2d 591.
Dissenting Opinion by J.: Gunther, Earl Taber, was defendant, convicted for violation of the penal provision of the so-called “blue laws” of this Commonwealth, the Act of L. June P. 1939, 24, section 872, 699.4. provision This substantially same that contained in the Act of April 22, 1794, 3 Smith Laws section 177, 1, which, were sub- turn, stantial reenactments of the Act of September 1786, 25, succeed the Act of 1779, March 14, entitled “An Act for suppression of vice and immorality.” The Act of 1939 provides in part as follows:
“Whoever does or performs any worldly employ- ment businеss whatsoever on the Lord’s day, com- charity monly (works necessity called hunt- game, or uses or practices any excepted), on the whatsoever diversion ing, shooting, sport convic- upon same not authorized law, shall, sentenced tion thereof a summary proceeding, use of the of fоur dollars for the pay ($4), fine there- default or, payment Commonwealth, shall suffer six (6) imprisonment.” of, days’ ap-
Sometime there November prior 17, 1957, farm peared Frigner notices of shoot” on the “turkey in Jackson Susquehanna sponsored Township, County, Rod Hoal, Lakeview and Gun Kenneth Club, Hoal, Chairman. On Novеmber Frederick a brother of Kenneth farm about went to the Hoal, *3 one o’clock and Hoal talked with Kenneth and p.m., the Earl and asked defendant, them the Taber, stop to turkey shoot as it was against the law. returned He later and the observed defendant and Kenneth Hoal at and shooting estimated targets that approximately on sixty people were the farm. Frederick Hoal there- appeared after before a justice of the and filed peace information against defendant, violation alleging the Laws. From a summary both conviction, defendant and Kenneth Hoаl took separate appeals to the court below and both were found guilty charged.
The act here involved does not come under the at hunting shooting on turkeys; the it is contrary, conceded all that the “turkey shoot” here engaged in is a contest where the participants shoot аt targets the and their winners, skills, are rewarded as a prize. a turkey If, therefore, the defendant was he was guilty anything, guilty at shooting a tar- out get open countryside competition with interested others similarly the harmless re- sport or of target laxation shooting. majority the which below, of the court
The oрinion solely rests opinion, affirms without of this court question Act in of the the language ground he therefore, defendant, and, of the the act prohibits concede court must of this majority is guilty. not statute may the language that while may situation to application any given its changed, This change. conditions and as circumstances change construction statutory is a broad not principle which constitutional law but also of numerable too on occasions courts have employed prob- in the consideration mention. However, ignores appeal, lem raised conditions changing or discussion of the consideration affect the out- well of our which complex society principles involved. proper come or evaluation ap- its place stamp majority prefers Instead, the court below that on the bare conclusion of proval defendant participated, “turkey shoot,” and in the so-called blue law is a mentioned shooting defendant, therefore, guilty. prohibited. in the ancient sand of time my cannot head bury object sought when the especially this conclusion, reach is considered. accomplished to be “An pre to the Act of Act is, The title and of unlawful gam of vice and immorality, vention sports dissipation.” restrain disorderly and to ing, *4 opin out here to the that, contrary It be pointed the of this court the court below which ion of title, as thus used the “gaming” “game” affirms, but This “gambling”. mean playing games, does not court, innumerable times this by defined term has been “gambling” and are still terms “gaming” and the of 1779, dictionaries. Act synonymous IX, of Vol. Pennsylvania, 14 at (Statutes Large March for “An Act the suppression 333) entitled, was page
419
preamble,
began
immorality,”
the
with
and
of vice and
provision
been
not hitherto
hath
“Whereas sufficient
Day,
of
Lord’s
the due observation
made
law for
pro-
preventing
commonly
Sunday,
of
and the
called
fighting,
swearing, cursing,
cock
drunkenness,
fane
shooting
racing,
playing,
and
matches,
bullet
horse
things,
gaming money,
playing
valuable
or other
practices,
fighting
tend
such
which
of duels and
evil
corrupt
greatly
morals
minds and
to debauch the
subjects
of this commonweаlth.”
Originally,
courts
sustained
our
the statute was
grounds by
Christi
assertions that
on constitutional
part
anity
is
of the common law of this State.
difficulty
argument
no definition
promulgated
Christianity
have
could be
Upde
profess
all those who
that faith. See
satisfied
graph
&
v.
v.
theory that the statute was a civil proper police power. Specht and a exercise of the See Sparhawk v. 8 Pa. 312; v. Commonwealth, Union Pas senger Company, 54 Pa. 401; Railroad Commonwealth Superior 184 Pa. v. 2d A. Grochowiak, police power primarily This 145. based on the designation day proposition that the as a is aimed to enforce cessation from labor rest protect enjoy in seven and to citizens one repose, rest relaxation and, ment therefore, peace, good morality promote health, order Specht society. supra; v. Soon Commonwealth, *5 420
Hing Crowley,
v.
U. S.
28 L. Ed.
703, 710,
The basic involved under the Act in tion is should whether it receive a strict or liberal con- application pro- struction. This consideration and its apart poles. results as far duce as the north and south If the statute is viewed under the literal and strict penal theory, being such con- nature, apply equal phases struction should on force all activity, segments society of our all of our and to every person, Consequently, natural artificial. law agencies enforcement of our should Commonwealth prosecute vigorously Open all violations. for disdain through lack of law enforcement should not be per- and no law tolerated, enforcement officer can be prosecuted mitted to select violations which will be and those which will be sanctioned. Farmers should prosecuted selling gunday their wares on markets or on the roadsides of this Commonwealth. including All industrial establishments, the labor force prosecuted utilized should be them, operation gunday, excepting only portion required for strict maintenance. Business- description men and commercial houses of all are not pale huge transporta- outside the law, industry permitted operate tion should not be ex- cept specifically exempt those which are from the law. sporting pic- Innumerable and recreational activities, expositions, parks fairs and nics, amusement should being be closed as in violation of the law. However, pictures, polo, baseball, football, tennis, motion fish- ing, fur-bearing removal raccoоns and animals caught hunting traps registration or deadfalls, the consumption liquor private of voters and the permitted legislature clubs should be because the has exempted operation these activities from the of the so- con- and liberal called blue laws. Under strict *6 struction the shoot” involved “turkey theory, as a recrea- present be sustained appeal may properly ad- prohibited tion or law. Even sporting by activity judicial official or conducted ministrative, proceedings the could of be considered as violations law. in 26 2d 996. See collected cases A.L.R.
It strict and literal readily apparent that such of in construction the Act would question produce chaos in present day do not that society. concede such and literal strict of the statute or even contemplated necessary the framers of the Act. As stated Mr. Justice Sutherland Village Euclid v. Ambler 272 U. 71 L. Realty S. Co., 365, of Ed. 47 Supreme 114: 303, wis- the “Regulations, and dom, necessity of validity as to which, applied conditions existing are so apparent now are they uniformly sustained, century half ago, even century ago, would probably rejected have been as and arbitrary oppressive .... And this is no there the incоnsistency, while meaning of constitutional guaranties never of varies, scope their application must expand contract meet the new and different conditions which are constantly within the coming field of operation.” their The of reverse this proposi- tion is true. equally
The Act from which the Act of su- was should pra, taken, receive a liberal construction. under concepts life power atomic age should be not confused with the concepts of horse- drawn carriage age. work, recrea- transportation, tion and relaxation of the 18th century cannot cоm- pared present with that age. What then may have been considered as evil practices or acts which “debauch the minds and corrupt the morals are accepted commonwealth” as today prop- perfectly may non-essential considered as been What have er. may day wordly employment well be considered of that sports necessity today. re- employment Some today definitely engaged would have been laxations century be- in the 18th either immoral as considered For activity or the attire used. involved cause question bathing anyone example, аttire stamped being 1794? Would today as immoral debauching dancing considered as have been modern corrupting morals? the mind up- been attributed have Whatever reasons holding on Sun- on the the Act basis sports, valid relaxa- considered as when cannot be *7 type from here and diversions tion why is difficult to cer- considered. It see involved is sports barred others and amusements while tain point physical it of view, From a are sanctioned. engage to in some desirable and beneficial seems more day spend Sunday than on innocent recreation specifi- only or in those activities idleness enforced exceptions general prohibi- permitted cally to the interpretation original en- A reasonable tion. incongruous does not lead such actment, however, practice any The act forbids the unlaw- conclusion. shooting, by law) game, (not hunting, ful authorized Sunday. proper sport on The or diversion whatsoever of this when considered with the clause, original leads to the conclusion that Act, rest of the qualifies every modifies or sub- the word “unlawful” speaks ject “any If in it. a statute un- mentioned practice, scheme or the word “un- device”, lawful act, ap- adjective applies nouns. The to all of the lawful” plies subjects following penalizes and it it, to all the sports games, hunting, shooting, or such diver- Y of the as are Section sions whatsoever unlmoful. cock-fighting pro- money for 1794 forbade Act of betting moting encouraging cock-fighting by money playing for or other valuable thereon; bullet thing (not playing playing, for but bullet bullet money gambling); playing dice, of cards, is, —that game any of hazard or shuffle billiards, bowls, boards, thing. Again, money, or for or other valuable address, thing gambling, it will be forbidden is the noted, sport penalty doing any of the not the for itself. things doing on for above acts was but the same $3.00, imposed penalty a Sunday, It also was $4.00. person penalty any start, “shall on who enter, $20.00 any gelding, prize, any plate, or run or horse, mare, thing.” wager, money sum of or other valuable bet, sports games “unlawful” or were the These, then, regardless engaged in so which were declared whether Shooting Sunday any on or at other time. was never any on declared to be unlawful other but n but shooting gam- it was connection with even then, bling wagering money. of this has for the first declared the innocent act time, court, shotgun discharging a revolver or more rifle, or, specifically, “turkey shoot” as a a violation of the law! horribly wrong gun discharging What is with so a a farm where no one connection disturbed, activity gun sporting conducted club? Must play polo instead? tennis *8 persons It could be further reasoned that who arranged “turkey engaged worldly shoot” were prohibited. Any attempt en- arbitrary the law on such classification forсe legal further for then concern, invite we would vexing problem with the not be concerned of discrim- inatory in the enactment classification the statute discriminatory or rather, but, enforcement operation equality equality of said enactment. The just objec- under a statute of enforcement 424 arbitrary- a constitutional as the
tionable, sense, discrimination in the enactment. The guarantee mean that no equal protection person the laws class of shall be denied the same persons protection which is other persons law other enjoyed by classes in same place like circumstances. v. Union Sewer 184 Connolly Pipe 559, U. S. Co., 540, 22 L. Ed. S. Ct. Missouri v. 679, 431; Lewis, U. S. 25 L. Ed. Equal 989. 22, 31, protection law secured if the operates law on all and does alike, subject not the individual to an exercise arbitrary powers government enforcing law as some and passive condonation as Yick to оthers. Wo v. 118 U. S. 30 L. Ed. Hopkins, 6 S. 1064.
The action of the of this without court, is based opinion, upon mere conclusion of the court I below which consider unsound, archaic and as mak- an ing act on a illegal particular of the week which is perfectly proper on any other day. there- fore dissent and would reverse the court below. joins in this J., dissenting opinion.
Watkins, Commonwealth v. Appellants. Bauder et al.,