Capital Theater Co. v. Commonwealth

• Decision Date: 22 January 1918
• Citation: 199 S.W. 1076,178 Ky. 780
• Parties: CAPITAL THEATER CO. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

199 S.W. 1076

178 Ky. 780

CAPITAL THEATER CO. v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 22, 1918

Appeal from Circuit Court, Franklin County.

Penal action by the Commonwealth against the Capital Theater Company. From a judgment for the Commonwealth, defendant appeals. Affirmed.

Guy Briggs, of Frankfort, for appellant.

J. P Hobson & Son, of Frankfort, for the Commonwealth.

SETTLE C.J.

This penal action was brought in the name of the commonwealth of Kentucky against the Capital Theater Company, a corporation organized under the laws of this state and possessing such powers as are common to private corporations; among which is the right to contract and be contracted with, to sue and be sued. Its business is the conducting of a theater in Frankfort, Ky. at which plays are presented by moving pictures to those who pay for admittance to the building known as the Capital Theater. The object of the action was to recover of it for the commonwealth a fine or fines for operating its theater on Sunday and employing certain named persons to work for it in so doing, which, it was alleged in the petition, constituted a violation of the provisions of section 1321, Kentucky Statutes, the punishment for which, as therein prescribed, is a fine of not less than $2 nor more than $50 for each offense.

The Capital Theater Company filed a general demurrer to the petition, and, without waiving its right to a hearing upon the demurrer it later filed an answer, the brevity of which permits insertion here of the following and only material parts thereof:

"Comes now the defendant * * * and states that it is true it does operate on Sunday a picture show, and that it did at the time stated in plaintiff's petition employ the persons named in plaintiff's petition; but it states that the operation of said picture show on Sunday and the employment of the persons named in plaintiff's petition was a work of necessity, and that, therefore, this defendant is not liable under the statutes of the state of Kentucky."

A paper entitled "Intervening petition" containing the names of several hundred representative citizens and taxpayers of the city of Frankfort was produced in the court below and offered to be filed in resistance of the prosecution of the action against the Capital Theater Company; such resistance being rested on the ground that the operation of its picture show on Sunday "is a great factor for good in Frankfort by reason of the fact that it does not interfere with the attendance upon the churches of the city, and does afford a place of recreation for those who have not more expensive forms of recreation within their reach," and that "unless the Capital Theater and other shows in the city of Frankfort are permitted on Sunday they will be compelled to close entirely, and thus the citizens, including the petitioners, will be deprived of a form of recreation and innocent amusement to which they are entitled."

The record fails to show what action, if any, was taken by the court upon the petition of the citizens, or upon the demurrer to the commonwealth's petition. It appears, however, that a jury was waived and the case submitted to the court upon the petition of the commonwealth, answer of the Capital Theater Company, and an agreed statement of facts, resulting in a judgment declaring the Capital Theater Company guilty, as charged in the petition, fixing its punishment at a fine of $51, and awarding the commonwealth a recovery against it for that amount and the costs of the action. The Capital Theater Company complains of that judgment; hence this appeal.

It appears from the agreed facts as well as the admissions of the answer that appellant's picture show is constantly operated on Sunday as on every other day of the week; and that on Sunday, March 4, 1917, the day the petition alleges the particular offenses were committed for which the recovery was sought in this case, appellant was engaged for profit at its trade or calling of operating a moving picture show in the Capital Theater in the city of Frankfort; that tickets were sold on that day for these shows as on other days of the week, which were taken up at the door and the persons buying them admitted to the theater; that the price of admission to the theater was 10 cents for each person, and the play given on that day was "Kick In," by Willard Mack, featuring Mollie King and William Courtney. Two performances were given on that Sunday, one in the afternoon at 2 o'clock. and the other at night beginning at 7 o'clock, and that appellant then had employed and at work in operating the picture show, both afternoon and night, Logan Petterson, Freda Busam, Wallace Rowland, William Russell, E. E. Rosson, and Marshall Brewer, none of whom are members of a religious society which observes as Sabbath any other day of the week than Sunday. Logan Petterson was the operator of the moving pictures, Freda Busam sold the tickets for admission to the performances, Wallace Rowland and William Russell were doorkeepers and took up the tickets, E. E. Rosson was the engineer, Marshall Brewer the janitor, Alvin Ridder was the musician, and R. L. McLean was the manager. It also appears from the statement of agreed facts that appellant had witnesses who would have testified that in the city of Frankfort there are 8,000 men, women, and children, whose average earnings are less than $30 per month; that there are no parks, concerts, or any kind of amusements offered either by the churches or by the municipality, and that these 8,000 citizens work from 7 o'clock on Monday morning to 6 o'clock on Saturday evening; that the principal recreation they have is from 2 o'clock p. m. until bedtime; that the employés of appellant who were engaged in operating its picture show on Sunday, March 4, 1917, do their work on Sunday from 2:30 until 4:30 o'clock in the afternoon, and from 7:30 until 9:30 o'clock in the evening, after they have had the opportunity to go to church and Sunday school in the morning; that the pictures shown on Sunday do not differ from those on week days; and that they are innocent and not of themselves immoral or detrimental.

The first and principal question presented by the appeal for decision is: Was the operation by appellant on Sunday of its moving picture theater, for which the fine was recovered of it in the court below, a violation of section 1321, Kentucky Statutes? The statute provides:

"No work or business shall be done on the Sabbath day, except the ordinary household offices, or other work of necessity or charity, or work required in the maintenance or operation of a ferry, skiff or steamboat, or steam or street railroads. If any person on the Sabbath day shall himself be found at his own, or at any other trade or calling, or shall employ his apprentices, or other person, in labor or other business, whether the same be for profit or amusement, unless such as is permitted above, he shall be fined not less than two nor more than fifty dollars for each offense. Every person or apprentice so employed shall be deemed a separate offense. Persons who are members of a religious society, who observe as a Sabbath any other day in week than Sunday, shall not be liable to the penalty prescribed in this section, if they observe as a Sabbath one day in each seven, as herein provided."

The trade or calling of appellant was and is the running of its moving picture theater. It was found at its calling on the Sabbath day, March 4, 1917, and while so engaged at its calling and in its regular business on the Sabbath day it employed other persons in labor to assist it in conducting its business on that day. The only work or business excepted by the statute is such as appertains to the "ordinary household offices, or other work of necessity or charity, or work required in the maintenance or operation of a ferry skiff, or steamboat, or steam or street railroads." The exceptions enumerated exclude other exceptions. If the operation of a moving picture theater or show on Sunday was intended to be excluded out of the operation of the statute, it doubtless would have so declared; and it was as necessary to be declared as it was to specify the operation of a ferry, skiff, steamboat, steam or street railroad, as excluded by its provisions. If the running of a ferry, skiff, steamboat, steam or street railroad on the Sabbath was not regarded by the Legislature as a work necessarily coming within the meaning of the words, "or other work of...