Lakeside Inn Corp. v. Commonwealth

• Decision Date: 16 November 1922
• Citation: 114 S.E. 769
• Court: Virginia Supreme Court
• Parties: LAKESIDE INN CORPORATION. v. COMMONWEALTH.

114 S.E. 769

LAKESIDE INN CORPORATION.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 16, 1922.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Necessity (Sunday Labor)].

Error to Circuit Court, Roanoke County.

The Lakeside Inn Corporation was convicted of violating the Sunday law, and it brings error. Reversed and remanded.

Holman Willis, of Roanoke, and Kime & Kime, of Salem, for plaintiff in error.

John R. Saunders, Atty. Gen., and Jackson & Henson, of Roanoke, for the Commonwealth.

BURKS, J. The plaintiff in error, hereinafter called the defendant, was convicted of violating the Sunday law (Code 1919, § 4570), and fined $75. The indictment charged the defendant with maintaining open on Sunday a public resort, used for the purpose of swimming and bathing, and keeping its employees engaged from 1:30 p. m. to 6:30 p. m. in selling admission tickets to the pool, and furnishing bathing suits and towels, and collecting the charges therefor. The indictment negatived the fact that this was household work, or other work of necessity or charity.

Final judgment was entered against the plaintiff in error on November 10, 1921, but the bills of exception were not signed till January 9. 1022. and we are asked to dismiss the case because the bills of exception were not filed within 60 days, upon the authority of Kelly v. Trehy, 133 Va. ——, 112 S. E. 757.

The court will take judicial notice of the fact that January 8. 1922, which was the sixtieth day, fell on Sunday.

In Bowles v. Brauer, 89 Va. 466, 407, 468, 16 S. E. 356, 357, it is said:

"In the construction of statutes, however, the rule founded in reason, and supported by the weight of authority, independent of any statutory rule on the subject, is that when a statute prescribes a certain number of days within which an act is to be done, and says nothing about Sunday, it is to be included, unless the last day falls on Sunday, in which case the act may generally be done on the succeeding day. Street v. United States, 133 U. S. 299; King v. Dowdall, 2 Sandf. 131; Porter v. Pierce, 120 N. Y. 217."

See, also, Swift v. Wood, 103 Va. 494, 49 S. E. 643.

We think this is the proper rule. 38 Cyc. 330, and eases cited. Sunday is usually dies non juridicus and judicial acts performed on that day are void. Lee v. Willis, 99 Va. 1G, 37 S. E. 826. But if the act to be done is authorized to be done on Sunday, then Sunday is to be counted although the last day be Sunday. Casey v. Viall, 17 B. I. 318, 21 Atl. 911, and cases cited.

The subject of Sunday observance under the statute is discussed at some length in Pirkey Bros. v. Commonwealth (Va.) 114 S. E. 764, decided to-day, and much that is there said has an important bearing on the questions hereinafter discussed.

Preliminary to this discussion, it may be stated that if what is done by one is justified under the statute as a necessity, then the labor which is thereby entailed on another as a necessary incident is likewise justified. Hence we need only inquire as to the necessity of the act entailing the consequent labor, for without the labor the act could not be done. As pointed out in the Pirkey Bros. Case, the necessity meant by the statute is not a physical necessity, but a moral fitness or propriety of the work and labor done under the circumstances of the particular case, and whether or not the act in question is morally fit and proper is usually a question of fact to be determined by a jury after hearing the testimony relevant to that particular act, and receiving proper instructions from the court, upon request, as to the proper interpretation of "necessity" as used in the statute. It is the function of the court to interpret the statute, but when this has been done, it is usually the function of the jury, as the representative of the morality of the community, to determine "the moral fitness or propriety of the work" in question. But the jury cannot discharge its function, unless it is permitted to hear all the pertinent and relevant testimony offered on the subject. This does not mean that the opinions of persons living in the community are relevant to, and admissible upon, the question of the moral fitness and propriety of the act in question. Usually, they are not. Opinion evidence is only admissible where it would be helpful to the jury. If the jurors are as capable of forming their own opinions upon given data as the witness whose opinion is offered in evidence, then the opinion is not admissible. Bosenbaum v. State, 131 Ark. 251, 199 S. W. 388, L. R. A. 1918B, 1109; 1 Greenl. Ev. (16th Ed.) § 430g. The law, however, recognizes "no high priest but justice, " and, in a proper case, requisitions the expert in every field of human knowledge to assist in arriving at just conclusions.

In the case at bar, the errors assigned relate to the rulings of the trial court in excluding testimony offered by the defendant, and in refusing to give instructions tendered by it. Under the testimony actually admitted, and the instructions given, the jury could not well have found any other verdict than the one found. In order to get the testimony in the record, the witnesses were examined before the judge, in the absence of the jury, so that there is no doubt or uncertainty as to what their testimony would have been. The testimony of the sheriff and deputy sheriff of Roanoke county showed that for a long period of time prior to the opening of Lakeside swimming pool, the persons living along the banks of streams in Roanoke county in the vicinity of Roanoke city, and persons passing along the public roads and streets near these streams, had been shocked and embarrassed by the great number of nude men and boys and partially nude women who could be seen on Sundays bathing or dressing and undressing along these streams. The sheriff testified that nearly every Sunday he had had calls to some parts of the county about swimming in public places; that upon one occasion he had made as many as 30 arrests at one time, and had not on that occasion arrested the small boys. The sheriff, in answer to questions testified in part as follows:

"Q. A part of your duties as sheriff is keeping good order in the community, and I want to ask you if for some time prior to the opening of Lakeside whether or not complaints were made to you on account of bathing on Sunday along the banks of the streams and rivers of this county?

"A. Yes, quite frequently, nearly every Sunday we had calls to some parts of the county about swimming in public places, and boys bathing without bathing suits on, and running around on the banks and through the fields and such things as that.

"Q. Was that condition pretty prevalent along Mason's creek and Roanoke river?

"A. Yes, sir.

"Q. Near where Lakeside is?

"A. Yes, sir. There is one place just above there about a quarter of a mile I will say, that we would get calls from there every few days and Sunday.

"Q. On some Sundays about how many people did you have to arrest on account of this?

"A. I recall one Sunday we went down—that was when my father was sheriff and I was deputy—and I believe we brought...