Carr v. State

• Decision Date: 23 February 1911
• Docket Number: No. 21,619.,21,619.
• Parties: CARR v. STATE.
• Court: Indiana Supreme Court

175 Ind. 241

93 N.E. 1071

CARR

v.STATE.

No. 21,619.

Supreme Court of Indiana.

Feb. 23, 1911.

Appeal from Criminal Court, Marion County; Jas. A. Pritchard, Judge.

Charles C. Carr was convicted of baseball playing on Sunday, and he appeals. Reversed.

Chas. O. Roemler, A. C. Ayres, R. Kane, and F. Winter, for appellant. Jas. Bingham, Chas. W. Smith, John S. Duncan, Henry H. Hornbrook, Albert P. Smith, Alex. G. Cavins, Edw. M. White, and Wm. H. Thompson, for the State.

COX, J.

On May 24, 1909, appellant, who followed baseball playing for hire as a vocation, was charged by affidavit in the criminal court of Marion county with a violation of the Sunday observance law by playing baseball on Sunday the 23d day of May, 1909. No question was raised as to the sufficiency of the affidavit, and appellant was tried on it and convicted by a jury. A motion for a new trial and a motion in arrest of judgment were successively, overruled, and then judgment was rendered, from which this appeal is taken.

The instructions given and refused by the trial court have not been brought into the record by bill of exceptions as required in criminal cases, and errors urged by appellant based on the action of the court in giving and refusing to give instructions cannot be considered. Donovan v. State (1907) 170 Ind. 123-132, 83 N. E. 744.

The other assignments of error center in the one question of the validity of the act of March 8, 1909, which purports to amend section 467 and to repeal a part of section 468 of the act concerning public offenses approved March 10, 1905 (Laws 1905, c. 169), and which, as found in Acts 1909, p. 436, reads as follows:

“Section 1. Be it enacted by the General Assembly of the state of Indiana, that section 467 of the above entitled act be and the same is hereby amended to read as follows: Section 467. Whoever, being over fourteen years of age, is found on the first day of the week, commonly called Sunday, rioting, hunting, fishing, quarreling, at common labor or engaged in his usual avocation, works of charity and necessity only excepted, shall be fined not less than one dollar nor more than ten dollars; but nothing herein contained shall be construed to affect such as conscientiously observe the seventh day of the week as the Sabbath, travelers, and those engaged in conveying them, families removing, keepers of toll bridges and toll gates, ferrymen acting as such and persons engaged in publication and distribution of news, or persons engaged in playing the game of baseball between the hours of one o'clock p. m. and six o'clock p. m., and not less than one thousand feet distant from any established house of worship or permanent church structure used for religious services or any public hospital or private hospital erected prior to the passage of this act.

“Sec. 2. So much of section 468 of said act approved March 10, 1905, as makes it unlawful for any one to engage in playing any game of baseball between one o'clock p. m. and six o'clock p. m. on Sunday is hereby repealed.”

The record discloses, with others, the following uncontradicted material facts, upon which appellant was found guilty below: That on and prior to May 23, 1909, appellant was a professional baseball player, and was pursuing that vocation as the manager and first baseman of the Indianapolis Baseball Club, which was associated with clubs in seven other cities, and with them formed the clubs of the American Association, playing a series of games in the several cities; that on Sunday, May 23, 1909, he participated as the first baseman of the Indianapolis club in a game played with one of the other clubs of the association on grounds maintained by the Indianapolis club in the city of Indianapolis, known as Washington Park; that the game was played between the hours of 3 o'clock and 5 o'clock in the afternoon on that day; and that there was no church or hospital within 1,000 feet of the grounds or park where the game was played. Appellant was convicted on the theory that so much of the act set out above as undertakes to exempt persons whose usual vocation is playing baseball for hire, and who follow such vocation on Sunday under the restrictions named in the act, is in violation of section 23 of article 1 of the state Constitution, which provided: “The General Assembly shall not grant to any citizen or class of citizens, privileges or immunities which upon the same terms, shall not equally belong to all citizens.” And on that theory the state is depending to sustain the conviction. Other questions raised and discussed flow from this one question, and the need of considering them or not depends on the decision of the question of the validity of the exemption of baseball playing from the general effect of the act.

In the very able brief of the counsel for the state, it is conceded that it is for the legislative department of the state government to declare the public policy of the state, and that as to all offenses against the state -that is, all questions of crime-what shall be the policy of the state is within the exclusive power of the Legislature. In other words, that the Legislature alone can create or define offenses against the state, for which individuals may be punished, and that none exist except such as have been so created and defined; that therefore courts cannot inflict any penalty for an act which the Legislature has not declared to be a crime, however immoral the members of the court may conceive the act to be. Counsel in further concession say: “Unquestionably the state, in the exercise of its police power, may determine on the grounds of morality, or from sociological consideration, that there should be a cessation from all the usual labors of life on one day in each week. And therefore, unquestionably, the Legislature was acting in its province when it enacted the body of the section forbidding all persons save those excepted from following their usual avocations. And unquestionably it would be within the power of the Legislature as a mere abstract proposition to repeal this and all other similar enactments altogether, and leave no enactment whatever in force forbidding labor of any kind, or pursuits of any kind on Sunday. We are not disputing this question at all. And, further than this, we admit that the Legislature may pass a general law forbidding men generally from following their usual vocations on Sunday, and that then they may except or exempt certain vocations from the operation of the law.” All this is manifestly true and well conceded. Counsel for the state also well say: “We are also mindful that when any party to a cause, whether it is the state itself, or the humblest citizen, challenges the validity or constitutionality of any act of the General Assembly of the state, it must stand ready to point out and put its finger on the provision of the Constitution which it is claimed is violated.” While this states correctly the obligation resting on one assailing the validity of a law, it does not fully measure the duty resting on a court in considering and determining the question presented. The power given to courts to overthrow an act of the Legislature is the highest and most solemn function with which they are vested, and it is to be exercised only under the compulsion of the clearest and most positive conviction that some constitutional provision has been violated by the lawmaking body in the enactment of the law assailed. Section 1 of article 4 of our Constitution vests in the General Assembly the lawmaking power of the state, and that body is supreme and sovereign in the exercise of the power subject only to such limitations as are imposed, expressly or by clear implication, by the state Constitution and the restraints of the federal Constitution and the laws and treaties passed and made pursuant to it. Apart from these curtailments of power, the Legislature is without fetter or clog, especially when exercising its police power. State ex rel. v. Menaugh (1898) 151 Ind. 260-266, 51 N. E. 117, 357, 43 L. R. A. 408, 418, and cases there cited; State ex rel. v. Fox (1901) 158 Ind. 126-129, 63 N. E. 19, 56 L. R. A. 893;Cain v. Allen (1906) 168 Ind. 8-24, 79 N. E. 201, 896. The duty of this court in considering a question as to the validity of a legislative enactment was well defined in part in the following language in the opinion in State ex rel. v. Menaugh, supra: “Being therefore required to give the benefit of all reasonable doubts in favor of the validity of the act of the lawmaking power, it is consequently incumbent upon him who assails its validity to establish affirmatively and clearly his charge to the exclusion of all such doubts. Especially must this rule prevail in view of the fact that the Legislature is invested with plenary power for all purposes of civil government. Therefore an inhibition to exercise a particular power is an exception, and the burden must rest upon the party who questions the validity of a statute to show that it is forbidden. Jamieson v. Indiana, etc., Gas Co., 128 Ind. 555 [28 N. E. 76, 12 L. R. A. 652], and cases cited; State ex rel. v. McClelland, 138 Ind. 395 ; Cooley, Const. Lim. 105. *** To doubt the constitutionality of a law is to resolve in favor of its validity. An act of the Legislature is not to be declared unconstitutional unless it is clearly, palpably, and plainly in conflict with the Constitution.” Henderson v. State ex rel. (1893) 137 Ind. 552-556, 36 N. E. 257, 24 L. R. A. 469;State ex rel. v. McClelland, 138 Ind. 395, 37 N. E. 799;State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313;Townsend v. State, 147 Ind. 624, 47 N. E. 19, 37 L. R. A. 294, 62 Am. St. Rep. 477.

The following statement of the duties and responsibilities of the courts in relation to enactments by the Legislature, by Frazier, J., in Brown v. Buzan, 24 Ind. 196, 197, is as wise and pertinent now as then: “The Constitution is paramount to any statute, and, whenever the...