Greenville Enterprise v. Jennings

• Decision Date: 10 March 1947
• Docket Number: 15923.
• Citation: 41 S.E.2d 868,210 S.C. 163
• Parties: GREENVILLE ENTERPRISE, Inc., et al. v. JENNINGS, Chief of Police of City of Greenville, et al.
• Court: South Carolina Supreme Court

41 S.E.2d 868

210 S.C. 163

GREENVILLE ENTERPRISE, Inc., et al. v. JENNINGS, Chief of Police of City of Greenville, et al.

No. 15923.

Supreme Court of South Carolina

March 10, 1947

Wyche, Burgess & Wofford, of Greenville, for appellant.

A. C. Mann and Benjamin A. Bolt, both of Greenville, for respondent.

TAYLOR Justice.

This action was commenced in the Court of Common Pleas for Greenville County, South Carolina, on the 25th day of May 1946. The Honorable J. Robert Martin, Jr. issued a temporary restraining Order and Rule to Show Cause why a permanent injunction should not be granted enjoining respondents from prohibiting or interfering with petitioners in the exhibition of motion pictures or baseball games in the City of Greenville. After hearing the case on its merits, the Court filed its Order on June 1, 1946, revoking the temporary restraining Order and refusing the permanent injunction, and dismissed the petition. Notice of intention to appeal was duly given and a writ of supersedeas granted the petitioner Greenville Baseball, Inc., which exhibits baseball games; but such was refused Greenville Enterprise, Inc. and Paris Theatre Company, which operate motion picture houses in the City of Greenville, upon the ground 'That the exhibition of motion pictures on Sunday rests finally in the control of the City Council.'

By consent of counsel the Court filed on June 7, 1946 its supplemental Order setting forth its reasons for refusing to grant the relief prayed for, and petitioners now appeal to this Court upon three exceptions which raise but one issue to wit: Whether or not the Court erred in refusing to grant the relief prayed for upon the ground that the Act of the General Assembly of South Carolina, approved May 23, 1941, 42 Stat. at Large 306 as amended by an Act of the General Assembly April 17, 1943, 43 Stat. at Large 128, had expired according to its own terms and is no longer in full force and effect.

The Act, as amended in 1943, reads as follows (omitting title):

'Section 1: § 1737-1, 1942 Code, amended--time limitation omitted on public exhibition of motion pictures, athletic sports and musical concerts on Sundays.--That Section 1737-1, Code of Laws of South Carolina, 1942, be, and the same is hereby, amended, by striking out the words 'For a period of two years after May 23, 1941', at the beginning of said section, so that said section, when so amended shall read as follows:

'Section 1737-1. It shall be lawful to exhibit publicly motion pictures, athletic sports and musical concerts and to engage therein from and after two p. m. on Sunday in counties wherein the United States goverment has established and maintains permanent or temporary army forts, naval or marine bases and/or incorporated cities or towns within a fifteen mile radius of said permanent or temporary army forts, naval or marine bases, Provided, That the exhibition of such motion pictures and engagements in athletic sports is lawful on other week days; Provided, However, that the theatre operator shall first obtain from the town or city council a special permit to run his theatre on Sunday. The terms of this section shall in no way conflict with any Sunday evening church service. Provided, That outside of incorporated towns or cities the approval of the Councy Board of Commissioners or Directors shall be necessary. And Provided, Further, that any person or persons, firm or corporation, exhibiting public motion pictures, athletic sports or musical concerts in any other county in South Carolina than said counties where the United States government has established and maintains permanent or temporary army forts, naval or marine bases, shall, upon conviction, be deemed guilty of a misdemeanor, and be subject to a fine not to exceed One Hundred Dollars, or imprisonment not to exceed thirty days in the discretion of the Magistrates.

'Section 2: Repeal.--All Acts or parts of Acts inconsistent herewith are hereby repealed.

'Section 3: Duration.--This Act shall expire six months after the present war has ended.

'Section 4: Time effective.--This Act shall take affect upon its approval by the Governor.

'Approved the 17th day of April, 1943.'

All rules for statutory construction are servient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and must be construed in the light of the intended purpose. The language used should be given its ordinary meaning; that is, the words used should be given their generally accepted meaning. Ex Parte Savannah River Electric Company, 169 S.C. 198, 168 S.E. 554; State ex rel. Crawford v. Stevens, 173 S.C. 149, 175 S.E. 213; Windham v. Pace et al., 192 S.C. 271, 6 S.E.2d 270.

Stated in other words, the question to be decided by this Court is, When does this law end according to its terms as reflected by the intention of the South Carolina General Assembly?

It is evident that the Act was passed for the benefit and use of military personnel and not for the general public because if it had, it would have been made applicable to the entire State and not just to communities where the government had established and maintained permanent or temporary army forts, or naval or marine bases. It is also significant that at the time of the passage of this statute, the United States was not at war, and the Act passed in 1941 fixed a definite period of time for its continuance without any regard to any act or acts of the United States government and without regard to the existence or non-existence of a state of war, but rather provided 'for a period of two years after the effective date of this Act,' etc. Had this Act not been amended, it would have expired according to its own terms on May 23, 1943, the Act, having become effective May 23, 1941. However, war was not declared until the following December of that year.

Approximately one month prior to the expiration date of this Act, the General Assembly amended it in such a way that three things are provided which were not in the old Act:

1. In its caption states 'Time limitation omitted on public exhibition of motion pictures, athletic sports and musical concerts on Sunday.'

2. Strikes out the words 'for a period of two years after May 23, 1941,' and

3. Adds a section entitled 'Duration,' which reads as follows: 'This Act shall expire six months after the present war has ended.'

Respondents contend that the words 'six months after the present war has ended' in effect means 'six months after the cessation of hostilities' and more than six months having elapsed since the surrender of Germany and Japan, the Act has expired under its own terms. Article 1, Section 8 of the Constitution provides. 'The Congress shall have Power * * * To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.' West v. Palmetto State Life Insurance Co., 202 S.C. 422, 25 S.E.2d 475, 145 A.L.R. 1461. In 67 C.J. 336, quoted with approval in the West case, supra, we find the following: 'The Courts are bound by a declaration or determination by the proper department of government that a war exists, while until there has been such a declaration or determination the Courts cannot take judicial notice of the existence of a war by their government.'

Very pointed is the following from the same volume, 67 C.J. at page 338: 'A court cannot, however, take judicial notice of a war by its government until there has been some act or declaration creating or recognizing the existence of war by the department of the government clothed with the war-making power.'

In re Miller, 2 Cir., 281 F. 764, 775, we find the following: 'We are unable to assent to the proposition. It is difficult to appreciate the reasoning upon which it is based. So long as the United States was officially at war the courts cannot say that it was in...