Watts, C. J., dissenting, and Cothran, J., dissenting in part.
Appeal from Common Pleas, Circuit Court of Aiken County; H. F. Rice, Judge.
Actions by the Palmetto Golf Club and another and by the Real Estate & Fidelity Company and another against Nollie Robinson, as Sheriff of Aiken County, and another. Restraining orders granted, and defendants appeal. Orders dissolved.
Orders of Judge Rice directed to be reported by Justice COTHRAN are as follows:
"Order of Injunction.
"Duly verified complaints in each of these cases, with proper supporting affidavits, were presented to me on March 5th. After careful examination of these documents, I granted a rule to show cause, returnable before me today, and in the meantime, without the necessity under the law of notice to the defendants, such defendants were restrained from arresting those who attempted to play golf on Sunday upon the two courses referred to in the complaints. This course of action is expressly provided for and authorized by section 487 of the Code Civ. Proc. 1922, and was in accordance with the usual practice in such cases.
"Upon the return of the rule to-day, in which the Attorney General, and Mr. D. W. Robinson, of the Columbia bar, appeared for the defendants, and Messrs. Henderson & Salley and Williams, Croft & Busbee for the plaintiffs, a demurrer was interposed by the defendants to the complaint by way of return. Full argument was had and the interesting questions involved have had my careful consideration.
"I have concluded that the demurrer should be overruled and that a temporary injunction pendente lite should be granted, and it is so ordered.
"At a later date I shall set out in a supplemental order, the authorities upon which I rely: but, as an early decision should be announced herein, I shall content myself at this time by stating that I am satisfied that section 715 ofthe Criminal Code 1922 manifestly does not prohibit the playing of golf on Sunday, if it is done in a quiet and decorous manner, as the complaints herein allege it is always done. The decisions of many courts which I shall hereafter set out, are to the effect that, when the statute prohibits 'public sports and pastimes, ' only those which the public pays an admission price to view are prohibited, and that, when the statute prohibits 'other games, exercises, sports or pastimes, such as hunting, shooting, chasing game, or fishing, ' no sport is prohibited unless it is similar to those named. This construction is greatly re-enforced by the fact that prior to 1896 the statute prohibited all 'other games, exercises, sports or pastimes whatsoever, ' and that the act of the Legislature of 1896 'struck out the general word, 'whatsoever, ' and inserted in lieu thereof the expression 'such as hunting, shooting, chasing game, or fishing.'
"Penal statutes should always be strictly construed and should never by a forced construction be stretched to cover acts which they do not dearly prohibit. The statute in question, according to the complaint, was originally adopted before golf was in vogue in South Carolina, and it cannot be said that the Legislature" then had golf in view, which fact is intensified by the fact that in 1896, and after golf was being played in South Carolina, the statute was amended to prohibit shooting, fishing, etc., and not to prohibit the playing of golf on Sunday.
"I am further satisfied that, while ordinarily a threatened arrest will not be enjoined by a court of equity, the Supreme Court of South Carolina has recognized as a well-known exception to the rule, the doctrine that, where property rights are involved as herein, an injunction will be granted to restrain a threatened arrest made under a statute which is either void or unconstitutional. The recognition of the doctrine referred to is based upon a direct decision of the Supreme Court of the United States, which court has quite recently extended this doctrine to cases in which the alleged offense is manifestly not covered by the statute invoked, which, in my opinion, is a correct statement of the true rule. In these cases I am satisfied both that the alleged offense, viz. the playing of golf on Sunday, is manifestly not covered by the statute, and, further, that the complaint raises a grave constitutional objection to the statute, should it be construed to apply to golf; that is to say, whether, as a matter of law and governmental right, the regulating of the playing of golf, which is alleged to be an innocent, quiet, and restful game, which involves no labor on the part of the player, comes within the police power of the state in a case in which property rights are involved. The Supreme Court of Illinois, at least, has rendered a decision which seems to sustain plaintiff's position. The Supreme Court of South Carolina has sustained the constitutionality of the Sabbath observance statute only as applied to working and laboring upon Sunday, but has not considered the constitutionality of that portion of the statute which applies merely to recreations, which question presents a very different phase of the law.
"Further elements involved are the inadequacy of the remedy at law to the plaintiffs, and the well-known principle of equity that a multiplicity of actions or prosecutions may be prevented by injunction. In this connection
especially I may add that I consider that the granting of this temporary injunction rather than continued arrests and acquittals, or even convictions, will furnish the most expeditious means possible of taking the question of the proper construction of the statute to the Supreme Court of South Carolina, which, after all, is the end that all parties should desire.
"This court unhesitatingly recognizes the good faith of the chief executive of this state in his attempt to enforce the laws relating to Sabbath observance, but, when any officer undertakes to restrain the liberty of a citizen, or to prevent such citizen from doing an act harmless in itself, as to both such citizen and any others, he must be able to place his finger on a law which actually covers the alleged offense. If such a law does not exist, then it is the duty of the court, when appealed to, in a proper case, to do as it always has done; namely, to prevent the threatened arrest for which it considers there is no actual legal warrant.
"Wherefore it is ordered that, until a final determination of these actions is reached by the courts, the defendants, their deputies and agents and all peace officers and all individuals are hereby restrained and enjoined from arresting, molesting, or interfering with the plaintiffs or any and all persons who play golf on Sundays upon the golf courses described in the complaints and known as the Highland Park Golf Course, and the Palmetto Golf Course, both in Aiken county.
"Let the plaintiffs enter into the usual injunction bond in the sum of $300."
"Supplemental Order.
"In my order in the two above-entitled causes, dated March 19, 1927, continuing the injunction herein pendente lite, I stated that at a later date I would set out in a supplemental order the authorities upon which I relied for granting the injunction, and I now desire to set out more fully the authorities and the reasons on which I based my action continuing the injunction until the final hearing of the case.
"The question before me on March 5th, and at the present time, is not the determination of the merits involved in the case, but is solely the question of whether a temporary injunction should issue until the courts can determine in an orderly manner and as speedily as is possible and without the necessity of many arrests and trials, whether the playing of the game of golf on Sunday in South Carolina is prohibited by law.
"The Supreme Court of South Carolina has repeatedly held that a temporary injunction should be granted if the complaint fairly makes out a prima facie case.
"It seems to me that there are two questions presented for my determination (1) Is the playing of golf on Sunday under the circumstances set out in the complaint prohibited by law? and (2) If it is not so prohibited by law in South Carolina, then are the plaintiffs entitled to the relief of a temporary injunction until the Supreme Court can pass upon the question involved or must they either cease to play golf on Sunday or submit to repeated arrests and prosecutions?
"Upon the first and vitally important question, I am convinced that the playing of golf on Sunday is clearly not prohibited by Section 715 of the Criminal Code, for the following reasons:
"(a) In its first clause the statute refers to 'public' sports or pastimes. The word 'public, ' in so far as it goes through the statute, has been construed to mean sports and pastimes to which the public is admitted by paying a fee. Cheeves v. State, 5 Okl. Cr. 361, 114 P. 1125. Under the allegations of the complaints, golf as played in Aiken is on a private course to which the public is not admitted and no fee is charged to witness the game.
"(b) In its second clause the statute as it now stands, refers to 'other games, exercise, sports or pastimes, such as hunting, shooting, chasing game or fishing.' The history of the statute sheds great light upon its interpretation. The statute was adopted many years ago. Prior to 1896 (see section 387, Revised Statutes of 1893) the statute prohibited all 'other games, exercises, sports or pastimes whatsoever.' The Legislature in 1896 (22 Statute, 221) struck out the exceedingly general word 'whatsoever, ' and limited the inhibition to 'other games, exercises, sports or pastimes, such as hunting, shooting, chasing game, or fishing.' The legal effect of the amendment is clearly either to limit the games, exercises, sports, and pastimes prohibited to such sports as hunting, shooting, and fishing, or...
