141 S.E. 610 | S.C. | 1928
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *349 January 20, 1928. The opinion of the Court was delivered by The plaintiffs instituted these actions in the Court of Common Pleas of Aiken County for the purpose of enjoining and restraining the defendants, and all law officers of this State, from arresting those who play golf, or attempt to play golf, on the Palmetto Golf Club links and on the Highland Park Golf course on the Sabbath day. In each of the cases a demurrer was interposed on the part of the defendants. By consent of all the parties interested, the two cases were heard together on circuit before his Honor, Judge H.F. Rice, and the appeals were heard together in this Court.
The demurrers of the defendants were overruled, and the injunctions prayed for were granted by the Circuit Judge. It is from this order that the defendant appeals.
The main questions raised by the appeal are those stated in the opinion of the Chief Justice as follows:
"(1) Is the playing of golf on Sunday a violation of the criminal laws of this State?
"(2) Can a Court of equity enjoin officers from prosecuting parties for violation of the criminal laws of the State, under the circumstances alleged in the complaint herein?"
Along with the main issues, as stated, we think there are certain other incidental questions involved in the causes, to which it is proper that attention be called herein, and which should be passed upon and decided at this time by this Court.
The case, as made by the respondents, requires only a construction of Section 715 of Volume 2 of the Code of 1922. To properly consider all the issues which we think should be determined, we regard it as necessary to also refer to, and to construe, Section 713 of the same volume. Both Sections are found in Chapter 16 of Volume 2 of the Code, which is entitled, "Nonobservance of the Lord's Day and Disturbing Religious Worship." We turn first to Section 715, which is as follows: *368
"(715) Sec. 3. Public Sports Prohibited on the Lord'sDay. — No Public sports or pastimes, as bear baiting, bull baiting, football playing, horse racing, interludes or common plays, or other games, exercises, sports or pastimes, such as hunting, shooting, chasing game, or fishing, shall be used on the Lord's Day by any person or persons whatsoever; and every person or persons offending in any of the premises shall, upon conviction, be deemed guilty of a misdemeanor, and be subject to a fine not to exceed fifty dollars, or imprisonment not to exceed thirty days."
We are in thorough accord with the holding in the opinion of the Chief Justice to the effect, that the section quoted does not prohibit the playing of golf on the Lord's Day (commonly called Sunday) as a "game, exercise, sport or pastime." And we are unable to find any other legislative enactment which prohibits the playing of golf on the Sabbath.
In connection with the view we have expressed, however, and, as indicated before, we must not overlook the provisions of Section 713 of the Criminal Code, which are as follows:
"(713) Sec. 1. Penalty for Working on Sunday. — No tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, business or work of their ordinary callings upon the Lord's Day (commonly called the Sabbath), or any part thereof (work of necessity or charity only excepted); and every person being of the age of fifteen years or upwards, offending in the premises, shall, for every such offense, forfeit the sum of one dollar."
While one who plays golf as an "exercise, sport or pastime" on Sunday does not commit a misdemeanor, as defined in Section 715, it seems clear to us that one "of the age of fifteen years or upwards," who engages in the game of golf as a "professional," and one who teaches or instructs *369 the playing of the game, in such a way as to make it his "worldly labor, business, or work" of his "ordinary calling," and who does not exercise such "wordly labor, business or work, * * * upon the Lord's Day (commonly called the Sabbath), or any part thereof," violates the provisions of Section 713.
In line with our view, it is unlawful for any person of the age of 15 years or upwards to engage in the work of a caddie on Sunday for remuneration or compensation, as such work is properly classed as "worldly labor, business or work" within the meaning of Section 713.
Further construing Section 713, it is also our opinion that it is unlawful for any person of the age of 15 years or upwards, who may own, lease, keep, or maintain any golf links or golf course, or other ground for the playing of golf as his "business," to "exercise" such business upon the Sabbath.
In considering the two Sections (713 and 715) together, as we should do, with reference to the matters at issue in this cause, the distinction we wish to make, and do make, is this: That it is not unlawful for one to engage in the game of golf as an exercise, sport, or pastime on Sunday, but it is unlawful for one in any way or manner to engage in golf as a worldly labor or business on Sunday.
In harmony with the opinion of this Court in the case of Charleston Oil Co. v. Poulnot,
Having disposed of the first main question and the issues incidental thereto, we next turn to the second question; made *370 by the exceptions of the appellants, that alleged error on the part of the Circuit Judge in granting the injunctive relief that was prayed for.
The rule adopted by this Court as to enjoining the prosecution, or threatened prosecution, of persons for violation of the criminal laws was clearly stated by Mr. Justice Jones as follows:
"Ordinarily a Court of equity has no jurisdiction to restrain criminal proceedings unless such proceedings are instituted by a party to the suit in equity to try the same right in issue before the Court of equity. In re Sawyer
[
It will thus be seen that the doctrine recognized in this State is that a Court of equity will only restrain a criminal prosecution when (1) there is a suit pending in equity, (2) in which it is sought to try the same right in issue in the criminal proceeding, and (3) such criminal prosecution is instituted by one party to this pending suit against the other,except (1) when the prosecution is instituted under an ordinance or Statute which is clearly void, and (2) irreparable injury to property rights may result from its enforcement. *371
It must be conceded that, at the time of the threats made by the appellants to institute criminal prosecutions against the respondents for alleged violations of Sections 713 and 715 of the Criminal Code, there was no suit pending in the Court of equity to try any issue whatsoever between these parties, that such proceedings were not, therefore, instituted by any party to such suit, and the rule above stated cannot be revoked to sustain the order of injunction.
The next inquiry is to determine whether the exception to the rule may be invoked for this purpose. An analysis of the utterance of the Court on the question will show that the requirements are twofold; namely, a void ordinance of Statute, under which the prosecution is instituted, and irreparable injury to property rights.
The constitutionality of Section 713 has been consistently recognized by this Court from the time of the decision of the case of City Council of Charleston v. Benjamin, 2 Strob. Law (33 S.C.L.), 521; 49 Am. Dec., 608, decided in 1846. The holding of the Benjamin case was referred to with approval as recently as 1914, when this Court decided the case of the State v. Hondros,
If, then, the order of injunction cannot be sustained by an application of the rule recognized in this State, owing to the absence of conditions upon which the operation of the rule is predicated, and cannot be brought under the exception to the rule, by reason of the absence of one of the *372 essential requirements upon which the exception is based, namely the unconstitutionality of the Statutes, it is difficult to conceive how the order of the presiding Judge can be sustained in this jurisdiction under any view.
It seems, in view of the plain utterance of our own Court on this question, that, unless a criminal prosecution is instituted by a party to a "pending suit" in equity to try the same right which is in issue before the Court the constitutionality of the ordinance or Statute in question is essentially involved in every controversy in which it is sought to invoke the equity jurisdiction of the Court to restrain a criminal prosecution. The Statutes sought to be enforced by the respondents being valid enactments, it was error, in our opinion, that their enforcement be enjoined.
We have read with much interest the learned and lucid arguments of both counsel for the appellants and for the respondents in this cause, in which they have cited numerous authorities from the Courts of the United States and from other state jurisdictions, and in which they have set forth many interesting questions concerning the effect of the Statutes under consideration. We have thought best, in deciding the issues raised, to confine ourselves strictly to the Statutes of this State and to the decisions of this Court. We find that little assistance may be gained by a study of the decisions of foreign jurisdictions as to the Statutes involved in this cause, as the Statutes in the many States pertaining to the observance of the Sabbath day are so different from the wording of our own enactments pertaining to that subject. We have carefully avoided in this opinion any discussion of the propriety or impropriety of our Statutes, or the inconsistencies that may appear from a study of them, or that may arise from their rigid enforcement. With matters of such natures, this Court has nothing to do. Our duty is not to make the *373 laws; we are confined to a construction of the laws as they have been written.
The judgment of this Court is that the restraining orders granted by the Circuit Judge be, and they are hereby, dissolved.
MR. JUSTICE STABLER concurs.
Concurrence Opinion
I concur in the views expressed in the opinion of Mr. Justice Blease, that the playing of golf on Sunday, under the conditions described, in his opinion, is not a violation of the criminal laws of this State. Whether or not such Acts should be prohibited is a matter for the consideration of the legislative branch of the government, and not for this Court. Under the Constitution of South Carolina, the three branches of the government, legislative, judicial, and executive, have separate functions to perform, and one branch of the government must not encroach upon the other, it matters not what may be the views of the individual members of one branch, as to what the law should be on this or any other subject.
As to the question of injunction, it is my opinion that the facts of this case do not come within the requirements necessary for issuing an injunction, either under the decisions of this Court, or the decisions of the United States Supreme Court. According to my view, the principle stated in the case of Cline v. Fink Dairy Co.,
Dissenting Opinion
I concur in so much of the opinion of Mr. Justice Blease as holds: *374
(1) That "one who plays golf, as an `exercise, sport or pastime,' on Sunday," cannot be convicted, as for a misdemeanor, under Section 715 of the Criminal Code, for the reasons so clearly expressed by him; that such conduct is not inhibited by the Statute:
(2) That consequently "it may not seem necessary to expressly pass upon the constitutionality of Section 715."
I dissent from so much of it as holds: "But it is manifest to us that all the authorities, which have heretofore sustained the constitutional validity of Section 713, require also a declaration on the part of this Court in favor of the constitutionality, both State and Federal, of Section 715" — and from so much of it as dissolves the injunction decree signed by his Honor, Judge Rice.
I do not mean to disagree with the conclusion as to the constitutionality of either Section 713 or 715; but, as that issue is not, as stated, necessary to be decided, I prefer to reserve my opinion for the occasion when it does become necessary. It seems very clear that, if the conduct complained of is not within the inhibition of the Statute as held in the opinion, and with which conclusion I agree, it becomes a work of supererogation to discuss the question of the constitutionality of the Statute.
The principal point of difference between the learned justice and myself is the dissolution of the injunction. I deem it manifest that the action was brought to determine the very issue which has been determined in the opinion, that playing golf on Sunday is not a crime under Section 715. The injunction is a harmless appendage to that determination, for any officer hereafter will respect the determination as greatly without the injunction as with it.
I think, however, that the decree of his Honor, Judge Rice, as to the right of the plaintiffs to an injunction under the circumstances, is entirely convincing. There is no question but that large property rights are involved in the controversy; *375 the fine distinction is drawn between an objection to a criminal Statute upon the ground of its unconstitutionality, and an objection upon the ground that it has no application to the facts admitted. I think that the authorities hold that an injunction may issue against a prosecution under a Statute which has no application to the conduct of the defendant, as well as under a Statute which is unconstitutional; the invasion of the rights and liberty of the defendant is as obnoxious in the one case as well as in the other.
There is no question as to the correctness of the rule laid down in the case of Cain v. Daly,
"Ordinarily a Court of equity has no jurisdiction to restrain criminal proceedings unless such proceedings are instituted by a party to the suit in equity to try the same right in issue before the Court of equity. * * * But, when the Ordinance or Statute under which the prosecutions are had, is clearly void and irreparable injury to property rights may result for its enforcement, equity may interfere * * * (citing cases)."
It seems to be apprehended that a Statute is not void unless it be unconstitutional, and the rule deduced is that there can be no injunction except where the void character of the Statute lies in its unconstitutionality.
It is as void with reference to particular conduct not within its inhibition, as if it were wholly unconstitutional; the inconvenience and damage to the party about to be arrested is as great in the one instance as the other.
The two distinct grounds of equitable interference are paralleled in the case of Philadelphia Co. v. Stimson,
"The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrongfully invaded * * * (citing cases). And in case of an injury threatened by his illegal action, the officer cannot claim immunity from injunction process. The principle has frequently been applied with respect to State officers seeking to enforce unconstitutional enactments * * * (citing cases). And it is equally applicable to a federal officer acting in excess of his authority or under an authority not validly conferred."
Further the Court said:
"Where the officer is proceeding under an unconstitutional act, its invalidity suffices to show that he is without authority, and it is this absence of lawful power and his abuse of authority in imposing or enforcing in the name of the State unwarrantable exactions or restrictions, to the irreparable loss of the complainant, which is the basis of the decree. * * * And a similar injury may be inflicted, and there may exist ground for equitable relief, when an officer, insisting that he has the warrant of the Statute,is transcending its bounds, and thus unlawfully assuming to exercise the power of government against the individual owner, is guilty of an invasion of private property. * * * If the complainant's rights, as against the defendant, were as claimed, it was entitled to adequate protection. And, in such case, the remedy might properly embrace the restrainingof unfounded prosecutions." *377
If property rights should be so jealously protected as indicated in the case referred to, the Court would hardly less energetically protect the personal liberty of the citizen.
The Stimson case cites the case of American School v.McAnnulty,
"The facts, which are here admitted of record, show that the case is not one which by any construction of those facts is covered or provided for by the statutes under which the Postmaster General has assumed to act, and his determination that those admitted facts do authorize his action is a clear mistake of law as applied to the admitted facts, and the Courts therefore must have power in a proper proceeding to grant relief."
In 32 C.J., 282, it is said:
"* * * An exception to the general rule very generally is recognized in decisions holding that where the statute or ordinance under which complainant is being prosecuted is unconstitutional or for any other reason void, and the prosecution will involve a direct invasion of property rights, and will result in irreparable injury thereto, an injunction may be granted to restrain the commencement or continuance of criminal proceedings based on such statute or ordinance" (citing numerous cases).
If the Statute in question has no application to playing golf on Sunday, as a pastime, there is no Statute against it. *378 It seems to me that a threatened prosecution for conduct not covered by any criminal Statute is not less reprehensible than one under a Statute that is unconstitutional or otherwise void.
I think therefore that the decree of his Honor, Judge Rice, should be affirmed in all respects.
Dissenting Opinion
This is an appeal from an order of injunction by his Honor, Judge Rice. The following is the statement of the case:
"These were two cases tried together upon the complaint and demurrer; both cases involving practically the same pleadings and issues of law. The issues made by the pleadings on the hearing were:
"(1) Is the playing of golf on Sunday a violation of the criminal laws of this State?
"(2) Can a Court of equity enjoin officers from prosecuting parties for violation of the criminal laws of the State, under the circumstances alleged in the complaint herein?"
The cause was most ably argued before us by both sides, and the authorities were cited from all the Courts that have passed upon the issues raised in the instant case. The thorough manner in which the case was argued and the citation of authorities have saved the Court much labor.
The initial vital question presents a clearcut question of law for the solution of the Court; it is whether or not playing golf on Sunday is prohibited by Section 715 of the Criminal Code of this State. As to playing golf on Sunday, the New York Court, in re People v. Poole, 44 Misc Rep., 118;
"Physical exercises and games are not forbidden on the Sabbath in the Ten Commandments. Only work is there prohibited. * * * In the Christian Church there never have been rules prohibiting physical games and exercises on Sunday. Those who say the contrary only speak at random, *379 and from lack of education. Not long ago a complaint was made to the Archbishop of Canterbury that Mr. Balfour, the Prime Minister of England, played the game of golf on Sunday. The Archbishop's official response in writing was that `it is certain that the Christian Church has never laid down detailed directions affecting the actions of individuals in this matter. Each of them is responsible to God for so using the Lord's Day as to fit him best for the working days that follow.' It is not to be understood that the Legislature meant to be stricter than the divine law of the Hebrew Scriptures, or than the rules of the Christian Church excepting the extent to which it has expressly gone."
Section 715 of Criminal Code is:
"No public sports or pastimes, as bear baiting * * * football playing, horse racing, interludes or common plays, or other games, exercises, sports or pastimes, such as hunting, shooting, chasing game, or fishing shall be used on the Lord's Day by any person or persons whatsoever. * * *"
This Statute, in its original form, was enacted in South Carolina in 1691, 2 Stat., 68.
The fact that a penal Statute must be strictly construed, and will not by the Courts be stretched to make criminal conduct by the individual which the Statute does not clearly prohibit, is elementary.
The South Carolina Statute cannot be construed as prohibiting playing golf on Sunday, for the following reasons:
(1) In so far as the word "public" runs through the Statute, it refers solely to "sports and pastimes" which the public pays an admission price to enter and view. Cheevesv. State,
A game of Sunday baseball for which no admission fee is charged is not a "public sport" within the meaning of an act prohibiting "public sports" on the first day of the week, and, where no wager is laid upon the result, it is not *380 within a Statute prohibiting "all shooting, sporting, horse racing, gambling, or other public sports upon the first day of the week."
It is also equally clear that it was not the intention of the Legislature to prohibit all kinds of sports on the Sabbath, but that the provisions of the law are aimed at only public sports participated in on the Sabbath, and that it was not the intention of the law-making power to include private sports therein.
Private sports are those which are engaged in for the entertainment and pleasure of those who participate therein. Public sports are those which are engaged in for the entertainment and pleasure of the public. Because other persons than those engaged in a private sport may be entertained thereby would not bring such private sport within the meaning of the law. As the law does not make private sports an offense against the Statute, but confines its penalties to those who engage in public sports, a line of demarcation must exist which will distinguish public sports from private sports. In order to constitute a public sport, it must have been given for the entertainment of the public, which is evidenced by the fact that it is paid for by the public. When a game of baseball is played on the first day of the week, and an admittance fee is charged for witnessing the same, this fixes the character of such game as a public sport, and all who engage or take part in it are liable to prosecution and conviction under the law.
The allegation in the complaints, admitted by the demurrers, is that golf, as played upon the two golf courses, is not a public sport or pastime, but is played in a private park from which the public is excluded.
(2) Under the well-known rule of ejusdem generis there can be no conviction of playing golf on Sunday under Section 715, unless golf is such a game, exercise, sport or pastime as "hunting, shooting, chasing game, or fishing." *381
The proper construction of the so-called Sunday law has been before many Courts, and the rule established is that no sport is prohibited under the Statute which expressly prohibits other sports, unless the sport in question is specifically named, or unless it is of the same general character as those prohibited; unless it is ejusdem generis to the sport specifically prohibited.
The Statute, after disposing of public sports, prohibits "other games, exercises, sports or pastimes such as hunting, shooting, chasing game, or fishing."
I think the case of State v. Prather,
"Every person who shall be convicted of horse racing, cockfighting, or playing at cards or game of any kind, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars."
The Court said:
"The State contends that the words, `game of any kind,' include baseball. On the other hand, the contention is that the Statute must be construed strictly, and that the meaning of the general words `game of any kind,' is limited by the particular words which precede them, and that they include only games of the class or species to which horse racing and cockfighting belong. * * *
"In the broad sense in which the word is often used it includes baseball. Giving to the language this interpretation, the Statute necessarily applies to every contrivance or institution which falls within the general term. This construction would make the Statute apply to every game — to authors, whist, chess, checkers, backgammon, and cribbage, even when played within the privacy of one's home, and to croquet, basketball, tennis, and golf, whether played in *382 public or on private grounds. It hardly seems probable that it could have been the intention of the Legislature to enact a provision so drastic in its terms as to make the playing of all games on Sunday misdemeanors, without regard to their character, and with no limitations or reservations with respect to the place where, or the circumstances under which, they might be indulged in."
Also Territory v. Davenport,
In Ex parte Neet,
"The doctrine of ejusdem generis is as rock-ribbed in the law of this State as any principle ever announced. As applied to penal Statutes especially, it is only a humane doctrine, and accentuates the wisdom of the fathers when they objected to being punished for offenses which had not been declared to be offenses by the law. It observes the respective rights of the different co-ordinate branches of the government by requiring the Legislature to enact laws — not even the judiciary to enforce, but not create, the laws — not even by construction. Baseball does not belong to the same class, kind, species, or genus as horse racing, cockfighting, or card playing. It is to America what cricket is to England."
In Ex parte Roquemore, 60 Tex.Crim. R.; 131 S.W., 1101; 32 L.R.A. (N.S.), 1186, we find: A Texas Statute (Pen. Code 1895, Art. 199) prohibited the opening on Sunday "of any place of public amusement," and then added: *383
"The term `place of public amusement' shall be construed to mean circuses, theaters, variety theaters, and such other amusements as are exhibited and for which an admission fee is charged; and shall also include dances at disorderly houses, low dives, and places of like character with or without fees of admission."
The Supreme Court of Texas said:
"It will be noted that this article undertakes to name and designate the places of public amusement, and it is said that it shall be so construed as to mean circuses, theaters, variety theaters, and such other amusements as are exhibited and for which an admission fee is charged, and shall also include dances at disorderly houses, low dives, and places of like character with or without fees for admission. That baseball is not specifically named of course is clear. What are we to understand by the general term `and such other amusements as are exhibited and for which an admission fee is charged'? Clearly we think amusements of a like or similar character. This seems to have been the construction given to a similar Statute by many Courts. It has been said that baseball is not prohibited by a Statute which provides for the punishment of any one convicted of horse racing, cockfighting, or playing at cards or game of any kind on Sunday. State v. Prather,
The Supreme Court of Texas then discussed the doctrine of ejusdem generis at length and defined it as follows:
"It is a principle of statutory construction everywhere recognized and acted upon, not only with respect to penal Statutes, but to those affecting only civil rights and duties, that where words particularly designating specific acts or things are followed by and associated with words of general *384 import, comprehensively designating acts or things, the latter are generally to be regarded as comprehending only matters of the same kind or class as those particularly stated. They are to be deemed to have been used, not in the broad sense which they might bear, if standing alone, but as related to the words of more definite and particular meaning with which they are associated."
The Court then proceeded to hold:
"Following this construction, it occurs to us that baseball is not in fairness included in this Statute. It is elementary, before a citizen can be punished as a criminal, that the offense must be clearly defined by Statute, and an appropriate penalty affixed thereto. Further, it is a rule of construction well known that, in undertaking to fix and place meaning upon Statutes, we should do so in the light of contemporaneous history, and in reference to the habits and activities of our people. It is known, of course, that baseball is the most generally practiced, patronized, and approved of all the games of exercise, and that it is the cleanest and fairest of all manly sports, and excites rivalry in the youths of our land, and that every village and hamlet has its favorite nine, and that in every village and hamlet many ambitious youths dream of the day when they shall equal if not excel Matthewson, Speaker, Cobb, Napoleon La Joie, and Honus Wagner. It is also well known that for many years, in many of our larger cities, baseball on Sunday has been not only frequently but continuously played where an admission fee was charged. Now it would have seemed, in the light of these facts, that, if it had been the legislative intent to condemn this form of amusement and include it within the Statute under consideration, it would have been an easy matter to have done so in express words, and not left the matter at least clouded in doubt."
Also State v. Chamberlain,
"A Statute prohibiting certain specified public amusements and other like and similar amusements on Sunday does not apply to any not named unless they are ejusdemgeneris." 25 R.C.L., 1247.
Under the Statute of South Carolina as amended by the Legislature in 1896, playing golf on Sunday is not a violation of the Sunday laws. Golf playing and baseball were unknown when the Statute was first passed.
As to the injunction feature, it is a dangerous thing in enjoining criminal prosecutions; it can be done in some cases, but the Court ought to be very careful in doing so.
In Cain v. Daly,
The allegations of the complaints allege that serious and valuable property rights are involved in the cases. The demurrer admitted that fact. Riley v. Town of Greenwood,
All exceptions should be overruled, and judgment should be affirmed. *386