Bishop v. Hanna

• Decision Date: 05 February 1951
• Docket Number: No. 16460,16460
• Citation: 63 S.E.2d 308,24 A.L.R.2d 808,218 S.C. 474
• Parties: , 24 A.L.R.2d 808 BISHOP et al. v. HANNA, Sheriff, et al.
• Court: South Carolina Supreme Court

Page 308

63 S.E.2d 308

218 S.C. 474, 24 A.L.R.2d 808

BISHOP et al. v. HANNA, Sheriff, et al.

No. 16460.

Supreme Court of South Carolina.

Feb. 5, 1951.

John M. Daniel, Atty. Gen., T. C. Callison, R. Hoke Robinson, James S. Verner, Asst. Attys. Gen., for appellant.

Willcox, Hardee, Houck & Palmer, Florence, for respondent.

STUKES, Justice.

Respondents brought this action in equity against State and County law enforcement officers to enjoin threatened interference by them with automobile (stock car) races promoted and conducted by respondents in Florence County, to which admission fees were charged and money prizes awarded to the winners. No question of procedure or remedy arises upon the record.

The defendants, now appellants, demurred upon the ground that the complaint shows that the projected races would violate the terms of Section 1733 of the Code of 1942, which was cited in the complaint. The advertised race which gave rise to the threats of arrest and occasioned the institution of suit was held under the protection of a restraining order and arguments upon the demurrer were heard afterward. The lower Court held that automobile races are not within the ban of Section 1733 because not named and the usual rule of strict construction of criminal statutes prevents a construction which would include automobile races, wherefore permanent injunction was issued. It was held, and there is no appeal, as follows, quoting from the order under review : 'These races are promoted by the plaintiffs in an effort to make money for themselves through furnishing entertainment and sport to the public.'

The parties to the appeal agree that the sole question for determination is whether the terms of Code Section 1733 prohibit the holding of a, quoting from both briefs, 'stock car meet or race on Sunday.'

History of the statute is interesting and enlightening. Some of it may be found in the several opinions in Palmetto Golf Club v. Robinson, 143 S.C. 347, 141 S.E. 610, 619, the holding of which is summarized in 56 A.L.R. 813. That case controls this because the disposition of it in effect committed the Court to the view that golf, although not included eo nomine in the statute, is a sport or game within its terms, and prohibited if public. It seems clear that motor car racing is closer akin to horseracing than golf is to the other games mentioned by name in the statute. Both can be public sports and violative of the statute. The distinction (which causes opposite results) between the Palmetto Golf case and this is that the activity there sought to be prevented perforce the statute was private; here it is public, and even commercialized. In the Palmetto Golf case it was said in the leading majority opinion, by way of express agreement with the dissent of the then Chief Justice Watts, that the playing of golf on Sunday is not prohibited. (Emphasis original.) The point is made plain by the following excerpt from the dissenting opinion of the Chief Justice: '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 all public sports participated in on the Sabbath, and that it was not the intention of the law-making power to include private sports therein. * * * In order to constitute a public sport, it must have been given for the entertainment of the public, which is evidence 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 quotation was evidently taken from Cheeves v. State, 5 Okl.Cr. 361, 114 P. 1125. Vide, 21 Ann.Cas. 681 and 41 L.N.S. 408.

Baseball, like golf, is unmentioned in the statute and was likewise unknown at the time of the original enactment but professional exhibition of it was apparently considered, without question, by the Court and all concerned in Greenville Baseball v. Bearden, 200 S.C. 363, 20 S.E.2d 813, to be within the inhibition of the statute. And there should be no doubt of the fate of the question if it had been presented in that controversy.

Sabbath observance was required by law at a very early date in the history of the Province of Carolina. The first enactment appears to be that of December 1691. II Statutes of South Carolina (Cooper's Compilation) 68. The law was quite detailed but did not include prohibition of sports; it was held to be inoperative because obsolete in O'Hanlon v. Myers, 10 Rich. 128. There followed in the year 1712, quoting from the title, 'An Act for the better observation of the Lord's Day, commonly called Sunday.' II Ibid. 396. Section V thereof follows: 'And be it further enacted by the authority aforesaid, That no publick sports or pastimes, as bear-baiting, bull-baiting, foot-ball playing, horse-raceing enterludes or common plays, or other unlawful games, exercises, sports or pastimes whatsoever, shall be used on the Lord's Day by any person or persons whatsoever, and that every person or persons offending in any of the premises, shall forfeit for every offence the sum of five shillings current money.'

Remarkably little change has been made in the statute, except the penalty, during the centuries which have intervened since its passage. The last legislative amendment was by act approved March 2, 1896, 22 Statutes at Large 220, which expressly added hunting, shooting, chasing game and fishing. The form and words of it after the amendment of 1896 are exactly as they have been carried forward in subsequent codifications, the current being Sec. 1733 of the Code of 1942, next quoted, which governs here. (The recent special enactments hereinafter cited do not apply to the facts of this case except to show the legislative understanding of the law.)

's 1733. Public sports prohibited on the Lord's Day.--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.'

Apparently most of the Sunday sports cases which have reached the courts of last resort of other jurisdictions have been prosecutions under statutes which prohibited work on the Sabbath. Our corresponding law is Section 1732 of the Code which is not involved in this case, was not considered by the lower Court and will not be here. The sharp cleavage in the decisions of the Courts of other States is illustrated by State v. Nashville Baseball Association, 1919, 141 Tenn. 456, 211 S.W. 357, 4 A.L.R. 368, and Levering...