Ex parte Donnellan

• Decision Date: 28 May 1908
• Citation: 95 P. 1085,49 Wash. 460
• Parties: Ex parte DONNELLAN.
• Court: Washington Supreme Court

95 P. 1085

49 Wash. 460

Ex parte DONNELLAN.

Supreme Court of Washington

May 28, 1908

Application by Frank H. Donnellan for a writ of habeas corpus against the sheriff of King county. Application denied.

F. C. Robertson, M. J. Gordon, and Fred H. Lysons for petitioner.

Kenneth Mackintosh and John H. Perry, for respondent.

MOUNT J.

This is an application for discharge on writ of habeas corpus. The petitioner alleges that he is restrained of his liberty, by the sheriff of King county, under a complaint in justice court, charging the petitioner with having kept open a theater and place of amusement on Sunday, and therein performed as an actor, in violation of section 7250 Ballinger's Ann. Codes & St. (Pierce's Code, § 1886) and that petitioner is unlawfully restrained of his liberty by reason of the unconstitutionality of the statute named. It is claimed that the section in question is unconstitutional upon the following grounds (1) Because it is unreasonable, arbitrary, unjust, and unnecessary for the protection of the public health, safety, or morals; (2) because the original act of 1866 (Laws 1865-66, p. 87, § 6) provided expressly that it should not apply to Snohomish county; (3) because the act of 1881 (Code 1881,§§ 764-1296) embraces more than one subject not expressed in the title; and (4) because the title of the act of 1891 (Laws 1891, p. 119, c. 69) is not sufficient to include the subject of this section. We shall consider these grounds in the order stated.

The section in question is as follows: 'Any person who shall keep open any playhouse or theater, race ground, cock pit, or play at any game of chance for gain, or engage in any noisy amusements, or keep open any drinking or billiard saloon, or sell or dispose of any intoxicating liquors as a beverage, on the first day of the week, commonly called Sunday, shall, upon conviction thereof, be punished by a fine of not less than $30 nor more than $250. All fines collected for the violation of this section shall be paid into the common school fund.' Section 7250, 2 Ballinger's Ann. Codes & St. It will be readily seen that this section prohibits any person from keeping open on Sunday the places stated. In the case of State v. Herald, 92 P. 376, we held that this section was intended to prevent the opening of theaters and playhouses for theatrical or dramatic performances, and that, as so construed, it does not abridge the privileges of citizens as guaranteed by the fourteenth amendment of the Constitution of the United States, or section 12, art 1, of the state Constitution. In the case of State v. Nichols, 28 Wash. 628, 69 P. 372, we had under consideration the validity of section 7251, Ballinger's Ann. Codes & St. (Pierce's Code, § 1887), being the section following the one now under consideration. That section provides that it shall be unlawful for any person to open on Sunday, for the purpose of trade or sale of goods, wares, or merchandise, any shop, store, or building, or place of business whatever; and the same objections were made to that section as are now urged against section 7250. After considering and citing many authorities, to the point that Sunday laws are within the general police powers of the state, we said: 'It may well be concluded that the power of the Legislature to enact these laws, as an appropriate exercise of the police power, is set at rest by judicial authority.' Further on, in considering the same case, we said: 'There have been different views in the minds of legislators as to what particular acts were works of necessity or charity. They have been uniform in regarding all noisy occupations and amusements and trades as within the substance of the law. The statute (section 7251, supra) forbids the opening on Sunday, for the purpose of trade or sale, of all goods, wares, and merchandise at any place of business whatever. Here is the plain legislative expression that the sanitary, moral, and physical good of the community requires the cessation of these labors on Sunday.' This language may be as appropriately used with reference to section 7250, which imposes a penalty upon any person who shall keep open a playhouse or theater on Sunday, as it was to the section then under consideration. In 27 Am. & Eng. Enc. Law (2d Ed.) p. 390, it is stated: 'Sunday laws are generally sustained as constitutional, on the ground that, since Sunday is a civil and political institution, established for the purpose of promoting the moral and physical well-being of society, they are within the domain of the police powers of the states. In asserting their unconstitutionality it has been claimed that they were in violation of the provisions safeguarding equal rights, personal or religious liberty, or that they took away liberty and property without due process of law, but, where not so drawn as to be objectionable as class legislation, they have been sustained almost without exception.' Numerous cases are there cited in support of the text, including, Soon Hing v. Crowley, 113 U.S. 703, 5 S.Ct. 730, 28 L.Ed. 1145, and Petit v. Minnesota, 177 U.S. 164, 20 S.Ct. 666, 44 L.Ed. 716. In 28 Am. & Eng. Enc. Law (2d Ed.) p. 118, the rule is stated as follows: 'The state has the right to pass statutes prohibiting any sort of public exhibition or amusement on Sunday, in order to preserve peace and order.' See, also, Brackett's Theatrical Law, p. 471; State v. Bergfeldt, 41 Wash. 234, 83 P. 177.

We are satisfied that this is the general rule, and that the section in question is not subject to the objections made upon the ground first stated. We are also satisfied that it is not objectionable as class legislation because, where the state has a right to prohibit amusements, it must necessarily follow that any particular kind of amusement may be singled out and prohibited by law, and special penalties attached for a violation thereof, and all persons engaged in such amusements must comply with the law. The right to labor in a certain way, or to pursue a certain calling or profession, depends upon the power of the state to prohibit or regulate such occupation, calling, or profession. It will not be necessary to consider the act of 1866 independently, because that act, if unconstitutional upon the ground urged, is no longer in force. If it was not expressly repealed by the act of 1881, it was impliedly repealed by that act, because that act covered the same subject as the act of 1866. We shall, therefore, pass to a consideration of the act of 1881.

It is argued that the act of 1881 is in violation of the provision of the organic act (section 1924, Rev. St. U. S.), and of the state Constitution, which provides that every law shall embrace but one subject, and that shall be expressed in the title, because the act of 1881 embraces more than one subject, not expressed in the title. The proceedings of the legislative session of 1881 show that the law, as it appears in the 'Code of Washington, 1881,' from section 764 to section 1296, inclusive, was passed as one bill. The section upon which this prosecution is based appears in the act of 1881 as sections 1266, 1268, 1270. The title of the act of 1881 is as follows: 'The Penal Code. An act relative to crimes and punishment and proceeding in criminal cases.' This act was passed as a complete Penal Code. All the usual ordinary crimes were therein defined, and punishments provided therefor, and the criminal procedure was also prescribed. After that act became a law, it was continuously followed in the territory, and has been followed since statehood, except where amended. In State v. Tieman, 32 Wash. 294, 73 P. 375, 98 Am. St. Rep. 854, where the same question now presented was raised in reference to sections 1214-1221 of this act, we said, quoting from Marston v. Humes, 3 Wash. St. 267, 28 P. 520: 'The Legislature may adopt just as comprehensive a title as it sees fit, and if such title, when taken by itself, relates to a unified subject or object, it is good, however much such unified subject is capable of division.' We then concluded...