174 A.D. 574 | N.Y. App. Div. | 1916
The relator was arrested charged with having violated section 2145- of the Penal Law in having willfully and knowingly maintained and conducted a moving picture show as a public show, to which the public were invited and which the public attended at a theatre located in the city of Albany on Sunday, July 25, 1915. Upon being arraigned on such charge the relator was committed pending trial to the custody of the sheriff of the county of Albany. Thereupon a writ of habeas corpus was applied for and obtained for the purpose of inquiring into the cause of his imprisonment, and if unlawful of relieving him therefrom. The basis of the application for the writ was that the imprisonment was unlawful, for the reason that giving a moving picture show was not prohibited by the Penal Law.
Upon the hearing had before the Special Term the writ was sustained and the relator ordered discharged from custody upon the ground that such show was given indoors in a theatre building, and not being an outdoor show was not prohibited by the section of the Penal Law above cited. The decision of the justice holding the term was placed solely upon the authority of the case of People v. Hemleb (127 App. Div. 356), by which he considered himself bound. Thereupon an appeal was taken to this court from the order entered upon such decision.
Section 2145 of the Penal Law (Laws of 1909, chap. 88) provides as follows: “All shooting, hunting, fishing, playing, horse racing, gaming or other public sports, exercises or shows, upon the first day of the week, and all noise disturbing the peace of the day are prohibited.” The construction which should be given the provisions of this section has been the subject of divergent decisions by the courts of this State. In the case of People v. Hemleb (supra) the Appellate Division of the Second
That the exhibition which was maintained and conducted by the relator upon the occasion of his arrest was a public show within the contemplation of the statute has not been questioned by the relator’s counsel either upon the argument before us or in his brief. It was in fact a business venture carried on by the relator for personal pecuniary gain. The general public was invited to attend the exhibition as a Sunday entertainment by alluring posters displayed at the doors. An admission fee was exacted from those entering. A moving picture was displayed. Thereupon the arrest of the relator followed.
The relator bases his claim of right to be discharged from arrest mainly upon the ground upon which the Hemleb case was decided, to wit, that the phrase “or other public sports,
The relator’s counsel founds his argument upon the fact that when the original statute prohibiting Sunday sports was enacted in this State more than a century ago the law related mainly to out-of-door sports, or things in the open. It prohibited, “ shooting, fishing, sporting, playing, horse racing, hunting, or frequenting of tipling houses, or any unlawful exercises or pastimes, by any person or persons within this State, on the first day of the week commonly called Sunday. ”
The rule sought to be invoked by the relator was quite fully discussed in Matter of City of New York (57 Misc. Rep. 52), and the conclusion reached by Mr. Justice O’Gorman that a provision of the charter of the city of New York
It is also proper in seeking to arrive at the construction which should be given the language of section 2145 that we consider the provisions of the neighbozing sections of the Penal Law.
The trend of recent legislation has been -to so far as possible protect the employee in his right to rest from labor on Sunday. No good reason is apparent for denying that privilege to the ticket seller, the ushers, the operators and the other employees in the thousands of picture shows in the State, while granting it to the employees in various other lines of employment throughout the State. It will not be claimed that such exhibitions fall within the exemption of section 2143 as works of charity or necessity. If they do not, and if included in the term ‘‘ other * * * shows ” in section 2145, the giving of such shows constitutes Sabbath breaking as defined in section 2141, and subjects the violator of the law to the penalty provided by section 2142 above quoted. The relator further contends that a moving picture exhibition is not prohibited unless it creates a noise disturbing the peace of the day. No such exemption is found in the law, but upon the other hand sections 2140 and 2145 negative its existence. The relator also contends that at the session following the decision of the Hemleb case the Legislature by re-enacting section 265 of the Penal Code, as section 2145 of the Penal Law, thereby adopted the construction thus given the section. These provisions of the Penal Law should
Unquestionably the Legislature possessed authority to regulate the observance of Sunday. (People v. Moses, 140 N. Y. 214; People v. Havnor, 149 id. 195; People v. Dunford, 207 id. 17.) In the case last cited the court said: “ That the Legislature has the authority to enact laws regulating the observance of the Sabbath day and to prevent its desecration is not, and cannot well be, disputed. The day is set apart by the statute for repose and for religious observance; objects which pertain to. the physical and moral well being of the community. As to the acts which should be prohibited, as disturbances, or profanations, of the Sabbath day, the Legislature is the sole judge.”
The Legislature alone can decide how Sunday shall be kept, and is the sole judge of acts proper to be prohibited. (People ex rel. Kieley v. Lent, 166 App. Div. 550; affd., 215 N. Y. 626.) If the existing law is in any way unsatisfactory or unjust,, the remedy is by application to the Legislature to modify or annul it, not by application to the court whose sole duty is to construe it and say what the Legislature meant by passing it.
The words “ or other public sports, exercises or shows ” are presumed to have been used by the Legislature in their ordinary and familiar sense and meaning, and are to be so understood and construed.
Acts relating to the observance of the Sabbath are remedial statutes and are to be construed liberally in respect to the mischiefs sought to be remedied. (Smith v. Wilcox, 24 N. Y. 354.)
The vital question to be decided upon this appeal is, what did the Legislature mean when it wrote into the statute relating to the observance of Sunday, following the prohibition against shooting, hunting, fishing, playing, horse racing, gaming, the words “or other public sports, exercises or shows.” Did it intend to prohibit exhibitions in the nature of the ordinary moving picture show ? It would seem clear that the answer to that question must be in the affirmative.
All concurred, except Woodward, J., who dissented on the authority of People v. Hemleb (127 App. Div. 356).
Order reversed, writ of habeas corpus dismissed, and relator remanded to the custody of the sheriff of Albany county.
See Laws of 1788, chap. 42, § 1; Laws of 1801, chap. 34, § 1; R. L. of 1813, chap. 24, § 1; 2 R. L. 193, § 1; R. S. pt. 1, chap. 20, tit. 8, art. 8, § 70; 1 R. S. 675, § 70.—[Rep.
See Consolidation Act (Laws of 1882, chap. 410), § 1998.— [Rep.
Laws of 1897, chap. 378, § 1481.—[Rep.