Ex parte Ferguson

• Decision Date: 20 June 1914
• Docket Number: 11884.
• Parties: Ex parte FERGUSON.
• Court: Washington Supreme Court

141 P. 322

80 Wash. 102

Ex parte FERGUSON.

No. 11884.

Supreme Court of Washington

June 20, 1914

Department 2. Appeal from Superior Court, Chelan County; Wm. A Grimshaw, Judge.

J. E Ferguson was convicted of violating the ordinance prohibiting Sunday shows, and applies for a writ of habeas corpus. From a judgment denying the writ, the relator appeals. Affirmed.

Whitney & Hughes and Sam R. Sumner, all of Wenatchee, for appellant.

Fred Kemp and E. L. Baker, both of Wenatchee, for respondent.

MOUNT J.

The city of Wenatchee, a city of the third class, passed an ordinance the first section of which reads as follows:

'It shall be unlawful for any person, firm, association or corporation, whether as owner, proprietor, keeper, or agent to keep open, run, manage, or conduct any playhouse theater, opera house, moving picture show, or museum, or to keep open, run, manage or conduct any roller skating rink bowling alley, dance hall or dance pavilion, billiard hall, pool room or shooting gallery or to engage in any of the said business or amusements or to engage in any noisy amusements on the first day of the week commonly called Sunday. * * *'

Section 3 of the ordinance provides that any person violating any of the provisions of the ordinance shall be guilty of misdemeanor.

A complaint was filed in the police court of the city of Wenatchee, charging that the appellant in violation of the ordinance did, on a certain Sunday----

'willfully and unlawfully keep open, and run the Wenatchee Theater, the same being then and there a playhouse and wherein the said defendant did then and there manage and run a moving picture show for profit, and the said defendant being then and there proprietor and owner of the said theater and playhouse, contrary to ordinance No. 440 of the said city of Wenatchee.'

On the filing of this complaint a warrant of arrest was issued and placed in the hands of the chief of police of the city. The appellant was taken into custody. When arrested, the appellant petitioned the superior court of Chelan county for a writ of habeas corpus. The writ was issued and a hearing had thereon before the superior court, where the writ was denied, and the appellant remanded into custody for trial. This appeal is prosecuted from that order.

The only question presented upon this appeal is the validity of the ordinance. It is argued by the appellant that the ordinance is void: First, because it is in conflict and inconsistent with the statutes of the state; second, because it was not enacted under any express or implied power vested in the city; third, because it is against public policy of the state; and, fourth, because the ordinance is unreasonable and not enacted in good faith. We shall notice these contentions in their order.

I. The statutes of the state provide at section 2494, Rem. & Bal. Code:

'Every person who, on the first day of the week, shall promote any noisy or boisterous sport or amusement, disturbing the peace of the day; or who shall conduct or carry on, or perform or employ any labor about any trade or manufacture, except livery stables, garages and works of necessity or charity conducted in an orderly manner so as not to interfere with the repose and religious liberty of the community; or who shall open and drinking saloon, or sell, offer or expose for sale any personal property, shall be guilty of a misdemeanor. * * *'

Section 2499, Rem. & Bal. Code, provides:

'Every person who shall willfully disturb, interrupt, or disquiet any assemblage of people met for religious worship--(1) by noisy, rude or indecent behaviour, profane discourse, either within the place where such meeting is held, or so near it as to disturb the order and solemnity of the meeting; or (2) by exhibiting shows or plays, or promoting any racing of animals or gaming of any description, or engaging in any boisterous or noisy amusement; or (3) by disturbing in any manner, without authority of law within one mile thereof, free passage along a highway to the place of such meeting, or by maliciously cutting or otherwise injuring or disturbing a harness, conveyance, tent or other property belonging to any person in attendance upon such meeting; shall be guilty of a misdemeanor.'

It will be noticed that section 2494, above quoted, makes the matters therein described unlawful when they disturb the peace of the day; and that section 2499 prohibits shows, plays, and boisterous amusements when the same willfully disturbs interrupts, or disquiets an assemblage of persons for religious worship. But there is nothing in these sections or any other section which is called to our attention, which expressly permits playhouses, theaters, opera houses, moving picture shows, or amusements to keep open upon Sunday. The statutes of the state above quoted are the only statutes upon the subject which are called to our attention. It is true that playhouses, theaters, opera houses, and moving picture shows are not prohibited by those sections. They are impliedly permitted to keep open and to run upon any day, unless they disturb the peace or quiet of the day. We think it is clear therefore that the ordinance which prohibits the management and conduct of these houses upon Sunday is not in conflict with the state statutes upon the subject. In Bellingham v. Cissna, 44 Wash. 397, 87 P. 481, where the statute of the state prohibited the speed of automobiles in excess of 12 miles per hour, we held that cities might fix the speed therein at less than 12 miles per hour and that such ordinance would not be in conflict with the state statutes. If the state by statute had expressly permitted theaters, opera houses, and moving picture shows upon Sunday, then it would be clear that the city could not pass an ordinance which would prohibit such shows upon Sunday. But where a statute only impliedly permits such shows upon Sunday and does not expressly permit them, it is within the power of cities to pass ordinances prohibiting such shows, and such ordinances clearly would not...