Carolina Amusement Co. v. Martin, 17678

Citation115 S.E.2d 273,236 S.C. 558
Decision Date07 July 1960
Docket NumberNo. 17678,17678
CourtUnited States State Supreme Court of South Carolina
PartiesCAROLINA AMUSEMENT CO., Drive-In Theatres of S. C., Inc., Greenville Enterprises, Inc., Spartanburg Theatres, Inc., Claude Rumley, H. P. McManus and Mrs. B. C. Williams, partners doing business as the Greer Drive-In Threater, Augusta Road Drive-In Theater Corp., Textile Amusement Co., Inc., Paris Theatre Co., Inc., Star Theatres, Inc., J. Mason Alexander, Wake Meyers, R. M. Caine, Calvin S. Teague and William H. Beattie, individually for themselves and for other patrons of motion picture theatres similarly situated, Appellants, v. J. R. MARTIN, as Sheriff of Greenville County, S. C., B. B. Brockman, as Sheriff of Spartanburg County, S. C., and Daniel R. McLeod, as Attorney General of the State of South Carolina, Respondents.

Sam R. Watt, Chester D. Ward, Jr., Spartanburg, Leatherwood, Walker, Todd & Mann, Greenville, for appellants.

Daniel R. McLeod, Atty. Gen., Columbia, for respondents.

STUKES, Chief Justice.

This is an action for declaratory judgment (1) that Section 64-1 of the Code of Laws of South Carolina of 1952 is inapplicable to the orderly showing of motion picture theatres on Sunday, or (2) that the statute is invalid because in conflict with the First and Fourteenth Amendments to the Constitution of the United States and article 1, secs. 4 and 5 of the Constitution of South Carolina of 1895. The prayer of the complaint is for permanent injunction against the defendants from enforcing the statute against, or interfering with, the orderly showing of motion pictures on Sunday in the theatres of the plaintiff owners and operators thereof.

The cited statute follows:

'No public sports or pastimes, such 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 Sunday by any person whatsoever. Every person offending in any of the premises shall, upon conviction, be guilty of a misdemeanor and be subject to a fine not to exceed fifty dollars or imprisonment not to exceed thirty days.'

The lower court held that the operation of public moving picture theatres is within the statute and is prohibited thereby on Sunday; and that the statute is not violative of any of the provisions of the Federal or State Constitutions. The plaintiffs have appealed.

Appellants' first point is that motion pictures are not within the terms of the statute, being unknown at the time of its enactment. We think, however, that they are embraced in the words of the statute, interludes or common plays. The word 'plays' denotes theatrical performances and Webster defines an interlude as follows: 'An entertainment of a light or farcical character introduced between the acts of the old mystery and morality plays or forming a feature of a festival, fete, etc.; hence, one of the farces or comedies to which these entertainments gave rise; also, formerly, any popular drama.' So far as the purpose of the statute is concerned, we see no distinction between a theatrical performance on a stage and one projected on a screen.

Golf was probably unknown to the framers of the statute but it was considered as within it, and prohibited by it on Sunday if public or professional, in Palmetto Golf Club v. Robinson, 143 S.C. 347, 141 S.E. 610. Professional baseball, although unknown at the time of the passage of the Sunday law, was taken by court and counsel to be within the ban of it in Greenville Baseball, Inc. v. Bearden, 200 S.C. 363, 20 S.E.2d 813. Motion pictures were similarly so considered in Greenville Enterprise, Inc. v. Jennings, 210 S.C. 163, 41 S.E.2d 868. In the case just cited it appears that two of the plaintiffs there are two of the appellants here. They did not then contend for the construction of the law which they now assert. Rather, they agreed with our construction. Automobile racing was held to be within the ban of the statute, although unknown at the time of its enactment, in Bishop v. Hanna, 218 S.C. 474, 63 S.E.2d 308, 24 A.L.R.2d 808. The last cited case contains a history of the law which has been of force, largely unchanged, since the year 1712.

In apparent recognition of the obstacles to them of the decisions in the Palmetto Golf Club case and Bishop v. Hanna, both supra, appellants petitioned for, and were granted, leave to argue against them. However, upon careful consideration, the court adheres to them and will not reverse or modify them. The authority of them dictates affirmance of the judgment in the instant case.

As was pointed out in Bishop v. Hanna, supra, the legislature has consistently construed section 64-1 as prohibiting exhibition of motion pitcures on Sunday. Sections 5-103 and 5-104 of the Code permit such on Sunday in certain localities, at fixed times and under specified conditions. Of course, this legislation would have been unnecessary if Sunday movies were not prohibited by Sec. 64-1. (So would the case of Greenville Enterprise, Inc. v. Jennings, supra, brought by two of the instant appellants, have been unnecessary if Sunday movies were not prohibited by section 64-1.)

Appellants cite the rule of strict construction of criminal statutes. Such contention is disposed of as was done in Bishop v. Hanna, supra [218 S.C. 474, 63 S.E.2d 310], in the following language. 'Because of the cited prior construction of the statute by this Court, which is not out of line with that of other courts with respect to similar statutes or with the view manifested by the subsequent course of legislation in this State it is unnecessary to add more in reconciliation of it with the rules of strict construction of penal statutes and of ejusdem generis, urged in argument by respondents; both contentions were unsuccessfully made in the Palmetto Golf case. However, such construction is supported by the following authorities which we take from appellants' brief: 50 Am.Jur. 246 et seq., 408 et seq., Statutes, Secs. 250, 389; Pickens v. Maxwell Bros. & Quinn, 176 S.C. 404, 180 S.E. 348; and State v. Johnson, 196 S.C. 497, 14 S.E.2d 24.' As was said in the cited case of State v. Johnson, the proper construction of a penal statute is that which finds and puts into effect the intention of the lawmaking body as gathered from a reasonable interpretation of the words of the statute citing State v. Firemen's Ins. Co., 164 S.C. 313, 162 S.E. 334.

There is cited by appellants People v. Hemleb, 127 App.Div. 356, 111 N.Y.S. 690, which held that a moving picture theatre is not included within the statute there under construction, which differs materially from ours. Moreover, the decision was not that of a court of last resort and seems not to have been followed in its own jurisdiction. See annotation, 24 A.L.R.2d, at page 841. Crawford v. City of Pascagoula, 123 Miss. 131, 85 So. 181, 182, held that moving pictures come within a Sunday law which prohibited 'interludes, farces, or plays of any kind.' Of the same result are: Ex parte Lingenfelter, 64 Tex.Cr.R. 30, 142 S.W. 555, and Zuccaro v. State, 82 Tex.Cr.R. 1, 197 S.W. 982; the Texas statute, enacted before moving pictures existed, prohibited 'circuses, theaters, variety theaters and such other amusements as are exhibited,' etc.

'The exhibition of moving pictures has been held within the application of acts forbidding generally the giving on Sunday of theatrical representations or performances, the exhibition of 'plays of any kind,' the keeping open of places of public amusement, which are defined as 'circuses, theatres, variety theatres and such other amusements as are exhibited and for which an admission fee is charged." 83 C.J.S. Sunday § 18b, p. 834.

There are cases in which moving picture theatres have been held to violate no-work-on Sunday statutes, which is not precisely the question presented here. An example is Rosenbaum v. State, 131 Ark. 251, 199 S.W. 388, L.R.A.1918B, 1109. The opinion contains an interesting history of the secular and religious origins of the observation of a day of rest. The custom has not been the result only of the precepts of religion. It is said in the 1949 North Carolina case of State v. Trantham, 230 N.C. 641, 55 S.E.2d 198, that the validity of Sunday closing ordinances has been the subject of discussion in at least 1590 cases decided in the various jurisdictions of the United States.

Appellants argue that the legislative intent of section 64-1 was to prohibit only disorderly and noisy public sports or pastimes, such as some of them named are, but that could hardly apply to 'interludes or common plays', within which we think that moving pictures come. Moreover, that thought has not been alluded to in our former decisions which have upheld the law. None of them depended upon the noise or disorder of the banned activity. 'According to the present view, Sunday laws are based on the experience of mankind as to the wisdom and necessity, for both the physical and moral welfare of man, of having at stated intervals a day of rest from customary labor. Consequently, such laws have been uniformly recognized as a legitimate exercise of the police power. Since the purpose of Sunday statutes is to promote the physical and moral nature of man, the right to prohibit secular pursuits on Sunday is not affected by the fact that they may be noiseless and harmless in themselves.' 50 Am.Jur. 808, sec. 9.

The lower court did not err in considering section 64-2 of the Code which forbids work on Sunday, except work of necessity or charity. Exactly the contrary of appellants' contention thereabout was held in the Palmetto Golf Club case, supra. (The code sections were then numbers 713 and 715.) They are parallel statutes and together (with the ensuing sections) contain the legislative will with respect to the day of rest. Indeed, they were originally parts of the same enactment; they have been separated by...

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