Ex parte Donnellan

• Court: United States State Supreme Court of Washington
• Writing for the Court: MOUNT, J.
• Citation: 95 P. 1085,49 Wash. 460
• Parties: Ex parte DONNELLAN.
• Decision Date: 28 May 1908

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.

[49 Wash. 461] 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[49 Wash. 462] upon the following grounds: (1) Because it is unreasonable, [95 P. 1086] 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,[49 Wash. 463] 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...