168 Mass. 519 | Mass. | 1897
The plaintiff seeks to recover for a balance due him in pursuance of a contract made with the defendant in 1893, by the terms of which the plaintiff was to receive for the services of himself and band, during July and August of that year, $24 for a week of seven days for each man, for the leader double pay, and for the soloist, when there was one, $10. The plaintiff performed his part of the contract, playing with the band at a seaside resort of which the defendant was the proprietor. On Sundays, the afternoon concerts began from half past two to half past three, and there were also concerts in the evening. The defence is, that, as some of the w'ork and labor contracted for was to be done on the Lord’s day, it was forbidden by the Pub. Sts. c. 98, §§ 1, 2.
We have no doubt that the contract was an entire one. Miner v. Bradley, 22 Pick. 457,459. Clark v. Baker, 5 Met. 452. Morse v. Brackett, 98 Mass. 205. Mansfield v. Trigg, 113 Mass. 350, 353. Handy v. St. Paul Globe Pub. Co. 41 Minn. 188. McClanathan v. Friedel, 85 Hun, 175; and 32 N. Y. Supp. 588.
If a person makes a contract in violation of the statutes for the observance of the Lord’s day, he cannot maintain an action thereon. Hazard v. Day, 14 Allen, 487. Myers v. Meinrath, 101 Mass. 366. Such a contract is absolutely void and cannot be ratified. Day v. McAllister, 15 Gray, 433. Stevens v. Wood, 127 Mass. 123.
The principal ground on which the plaintiff contends that he is entitled to recover is, that the concert might have been licensed, and-that, as the plaintiff was ignorant that the defendant had not procured a license, he is entitled to recover, under the principle laid down in Emery v. Kempton, 2 Gray, 257, and Roys v. Johnson, 7 Gray, 162. We are of opinion, however, that under the Pub. Sts. c. 98, §§ 1, 2, there was no authority in any person or board to license a concert on the Lord’s day, except a
In the first statute passed by the Commonwealth on the subject, St. 1782, c. 23, where the Lord’s day is declared to be “ the time included between the midnight preceding and the sun sitting of the same day,” the doing of certain things on the Lord’s day is forbidden, and certain other things are prohibited on the evening next preceding or succeeding the Lord’s day, and among them is being present “ at any concert of music.” This statute was repealed by the St. of 1791, c. 58, but its provisions were in substance re-enacted. See Tracy v. Jenks, 15 Pick. 465. This statute, however, differs from the preceding in prohibiting, in § 1, the being present at any concert of music on the Lord’s day, or any part thereof, and in § 5 prohibiting the same thing on the evening next preceding or succeeding the Lord’s day.
Under the St. of 1816, c. 112, § 1, which contains the words “ on any part of the Lord’s day or evening,” it was held by this court that “the Legislature intended Sunday and the evening immediately following sunset on that day; and not the evening immediately preceding Sunday.” Commonwealth v. Newton, 8 Pick. 234. .
The Rev. Sts. c. 50, § 4, follow the St. of 1791 in its definition of the time included in the Lord’s day, and § 5 provides, “ No person shall be present at any game, sport, play, or public diversion, except concerts of sacred music, upon the evening next preceding or following the Lord’s day.” This we believe is the first time that concerts of sacred music are mentioned in our statutes relating to the observance of Sunday. Nothing is said about such concerts in the draft prepared by the commissioners, which followed the previous statutes.
By the St. of 1858, c. 151, § 5 of the Rev. Sts. c. 50, was repealed, and the following section was enacted : “ No person shall be present at any game, sport, play, or public diversion, except concerts of sacred music, upon the evening following the Lord’s day; nor upon the evening next preceding the Lord’s day, unless such game, sport, play, or public diversion shall have been duly licensed by the persons or board authorized by law to grant licenses in such cases.”
In the Gen. Sts. c. 84, § 12, the Legislature made a general provision, for the first time, applicable to all the sections of the act, as follows: “ The Lord’s day shall include the time from midnight to midnight.” This does not appear either in the report of the commissioners or in the amendments proposed by the committee of the Legislature. Section 4, however, contains the provisions of the St. of 1858, c. 151, relating to sacred concerts on the evening following the Lord’s day, or on the evening of the day next preceding, though the word “ following ” was changed to “ of.” ■
The Pub. Sts. c. 98, follow the provisions of the General Statutes as amended, with some change in arrangement. In 1887, the words “ or upon the evening next preceding the Lord’s day ” were struck out. St. 1887, c. 391, § 1.
As the law stood in 1893, while it implies that a sacred concert might be licensed on the evening of the Lord’s day, and this could probably be done under the Pub. Sts. c. 102, § 115, yet we find no statute for licensing a concert of any kind on any other part of the day.
The decision of the learned judge of the court below, who found for the plaintiff, apparently was based upon the theory that a license could have been obtained; but this seems to us not warranted by the law in force at the time.
Subsequently, the St. of 1894, and §§ 1, 2, of the Pub. Sts. c. 98, were repealed, and other provisions enacted. St. 1895, c. 434. But the validity of the contract must be determined by the law as it existed in 1893, and by that law, as we interpret it, no concert of any kind could be licensed on the Lord’s day except after sunset. As the defendant could not have obtained a valid license for a concert of any kind in the afternoon of that day, we need not consider whether the concerts which were then given were sacred or not.
As there must be a new trial, we have no occasion- to consider at length the requests asked for by the defendant. It is enough to say that they were in substance correct, and adapted to the case.
Exceptions sustained.
