In re Hull

• Decision Date: 05 August 1910
• Citation: 18 Idaho 475,110 P. 256
• Parties: In re G. W. HULL, Habeas Corpus
• Court: Idaho Supreme Court

110 P. 256

18 Idaho 475

In re G. W. HULL, Habeas Corpus

Supreme Court of Idaho

August 5, 1910

SUNDAY REST LAW-PUBLIC AMUSEMENTS-SCENIC RAILWAY.

(Syllabus by the court.)

1. Section 6825 of the Rev. Codes provides that "It shall be unlawful for any person or persons in this state to keep open on Sunday.... any theater, playhouse, dance-house racetrack, merry-go-round, circus or show, concert saloon billiard or pool room, bowling-alley, variety hall, or any such place of public amusement"

2. Held, that in order to bring a public amusement not specifically enumerated by the statute (sec. 6825, Rev Codes), under the general language of "any such place of public amusement," the likeness or similarity must exist in something other than the mere fact that it is a "public amusement," and must in a general way correspond to the amusements specified.

3. What is designated as a "scenic railway," being a railway constructed of rails and on which cars are run for the purposes only of amusement, where the track is elevated a considerable distance above the ground at the place of beginning and is built on an incline with intervening elevations, and the cars are propelled by the force of gravity, is not "such place of public amusement" as a "merry-go-round," and is not prohibited from being kept open on Sunday by the provisions of sec. 6825 of the Rev. Codes.

4. An amusement that is not per se unlawful or criminal and is not in itself immoral or dangerous or detrimental to the public health will not be included within the provisions of the statute prohibiting certain specified public amusements and other like and similar amusements on Sunday, unless the same is forbidden by the statute either in direct terms or by clear implication.

Original action in this court for writ of habeas corpus. Petitioner was convicted in the justice's court of Boise precinct, Ada county, of a violation of the Sunday rest law in unlawfully keeping open a place of public amusement, to wit, a scenic railway, on Sunday. Hearing had on return to writ. Prisoner discharged.

Petitioner discharged.

Richards & Haga, and P. E. Cavaney, for Petitioner.

The defendant's contention is that he has not violated sec. 6825, Rev. Codes, commonly known as the Sunday rest law, for the reason that the wording of the law plainly and clearly shows that there is nothing in said law whatsoever that refers to such a place of public amusement as the said scenic railway, and that the keeping open of said amusement does not come within the inhibition of the said Sunday rest law. Penal statutes should be strictly construed. (2 Lewis' Sutherland, Stat. Const., sec. 501; Ex parte Bailey, 39 Fla. 734, 23 So. 552; State v. Woodruff, 68 N.J.L. 89, 52 A. 294.)

"The doctrine of 'ejusdem generis' is applied in all cases where there is doubt as to the intention of the legislature, and, as a rule, statutory construction is stated to be that where general words follow particular ones in a statute, the general words will be limited in their meaning or restricted to things of like kind and nature with those specified." (State v. Prather, 79 Kan. 513, 131 Am. St. 339, 100 P. 57, 21 L. R. A., N. S., 23; Ex parte Neet, 157 Mo. 527, 80 Am. St. 638, 57 S.W. 1025; Commonwealth v. Burrell, 7 Pa. 34; People v. Hochstim, 36 Misc. 562, 73 N.Y.S. 626, 634; In re Hastings & Ward (Pa.), 15 Phila. 420.)

"Confining our consideration to the question of prohibited shows, it is evident that the legislature aimed at preventing those shows which in its opinion disturbed the repose of the community." (Keith and Proctor Amusement Co. v. Bingham, 108 N.Y.S. 205; United States v. Buffalo Park, 16 Blatchf. 189, F. Cas. No. 14,681; St. Louis Agri. & Mech. Assn. v. Delano, 108 Mo. 217, 18 S.W. 1101.)

D. C. McDougall, Attorney General, J. H. Peterson, and C. P. McCarthy, for Defendant.

It is impossible to name specifically in an act all existing forms of public amusement, and it is impossible to name specifically all variations and modifications of existing amusements and similar amusements which may be invented in the future. It is therefore clear that the legislature in dealing with either business or amusement must use general language designating a general class or genus.

Conceding that the general rule of ejusdem generis is here applicable, a scenic railway, such as described, is wholly within the letter and intent of the statute. Among those things specifically enumerated are racetracks, merry-go-rounds and bowling-alleys. These devices are closely analogous and of the same genus and general nature of the things enumerated. ( State v. Groves, 119 N.C. 822, 25 S.E. 819; Randolph v. State, 9 Tex. 521; Chicago Union Traction Co. v. Chicago, 199 Ill. 484, 65 N.E. 451, 59 L. R. A. 631.)

The classification in this statute is very broad, varying from the comparatively quiet performance of theaters to the noisy and boisterous amusements of racetracks and merry-go-rounds. If the general words refer to the genus or class, the genus in this case must be admitted to be very broad, and where the classification is so broad as to be bordered on the one side by theaters and on the other by racetracks and merry-go-rounds, can it be seriously denied that a scenic railway is included? Though the device were not of the same general class and genus, "This rule [ejusdem generis] can be used only as an aid in ascertaining the legislative intent, and not for the purpose of controlling the intentions or confining the operation of the statute within narrower limits than were intended by the lawmaker." (2 Lewis' Sutherland, Stat. Const., sec. 437, and cases there cited:; Willis v. Mabon, 48 Minn. 140. 31 Am. St. 626, 50 N.W. 1110, 16 L. R. A. 281; State v. Holman, 3 McCord (S. C.), 306; Webber v. Chicago, 148 Ill. 313, 36 N.E. 70.)

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

AILSHIE, J.

The petitioner was convicted in the justice's court of Boise precinct, Ada county, of violating sec. 6825 of the Rev. Codes, known as the "Sunday rest law," and was sentenced to pay a fine of $ 50 and to be imprisoned in the county jail for a term of ten days. The specific offense charged against the petitioner was that of unlawfully keeping open a place of public amusement known and designated as a "scenic railway."

This case was submitted on a stipulation of facts, from which it appears that on July the 24th, the same being Sunday, the petitioner kept open his place of amusement and admitted such persons as applied for admission, and operated his cars and furnished rides to those who paid the fee of ten cents. It seems that the Natatorium Park Amusement Company, Ltd., is a corporation organized under the laws of this state, and that the petitioner, G. W. Hull, is its general manager, and has control and management of its property. This so-called scenic railway consists of a track several hundred feet long on which wooden cars are run at a high rate of speed. The cars are elevated by means of a cog-wheel attachment, so that the track is a considerable distance from the ground at the highest place. It is built on a general incline, with slight elevations intervening from that point to the end of the track, where it comes to the surface of the ground near the place of starting. These cars run from the highest point by force of gravity, and are operated purely as a matter of amusement to those who take the rides and incidentally for the pecuniary benefit of the proprietors of the park. Ten cents' worth of amusement via this scenic railway lasts about two minutes, so the record says. The tourist may then purchase a new ticket or forego a further view of the scenery.

The state contends that this comes within the provisions and purview of sec. 6825 of the Rev. Codes. That statute provides among other things as follows: "It shall be unlawful for any person or persons in this state to keep open on Sunday . . . . any theater, playhouse, dance-house, racetrack, merry-go-round, circus or show, concert saloon, billiard or pool room, bowling-alley, variety hall, or any such place of public amusement. . . ."

It is conceded that this does not come within the list of enumerated amusements. But the state insists that it is analogous and similar to a "merry-go-round," and is consequently prohibited by the phrase "or any such place of public amusement." It is argued on behalf of the state that under the doctrine of ejusdem generis a scenic railway such as above described is prohibited on the ground that it falls within the prohibition of like, similar and kindred amusements...