State v. Nashville Baseball Ass'n

• Decision Date: 12 April 1919
• Parties: STATE v. NASHVILLE BASEBALL ASS'N.
• Court: Tennessee Supreme Court

211 S.W. 357

141 Tenn. 456

STATE v. NASHVILLE BASEBALL ASS'N.

Supreme Court of Tennessee.

April 12, 1919

Certiorari to Court of Civil Appeals.

Suit by the State of Tennessee against the Nashville Baseball Association. Judgment dismissing the petition was reversed on appeal to the Court of Civil Appeals, and defendant petitions for writ of certiorari. Writ granted, decree of Court of Civil Appeals reversed, and decree of circuit court affirmed.

Frank M. Thompson, Atty. Gen., and James L. Watts, of Nashville for the State.

Cherry & Steger, of Nashville, for defendant.

McKINNEY J.

The petition filed in this case sought to enjoin the defendant from playing baseball on Sunday, in Tennessee, and to have its charter forfeited.

The circuit judge dismissed the petition, and on appeal the Court of Civil Appeals reversed the lower court and perpetually enjoined the defendant from playing ball on Sunday, in Tennessee, but declined to decree a forfeiture of its charter.

The case is before us by petition for writ of certiorari.

The Court of Civil Appeals held that it was unlawful to play baseball in Tennessee on Sunday, and based its holding on chapter 47, § 1, of the Acts of 1803, section 3029 of Shannon's Code, which is as follows:

"If any merchant, artificer, tradesman, farmer, or other person shall be guilty of doing or exercising any of the common avocations of life, or of causing or permitting the same to be done by his children or servants, acts of real necessity or charity excepted, on Sunday, he shall, on due conviction thereof before any justice of the peace of the county forfeit and pay three dollars, one half to the person who will sue for the same, the other half for the use of the county."

It therefore, becomes necessary for us to construe this statute with a view of determining whether the same applies to playing baseball.

In 7 Corpus Juris, p. 932, note 52 (a), the origin of baseball is thus stated:

"In a prosecution for playing baseball on Sunday, brought under a statute providing that persons convicted of horseracing, cockfighting, or playing at cards or any game of any kind on Sunday should be guilty of a misdemeanor, one of the reasons suggested for holding that the statute was not to include baseball was that when the statute was adopted the game was unknown. In referring to this suggestion the court said: 'Until very recently there has been more or less controversay as to the early history and origin of baseball, some contending that it is only a modified form of the English game of rounders. In order to settle the dispute a special baseball commission was appointed, consisting of a number of eminent men. Their report was published in 1907, and the commission, after full investigation, unanimously decided that baseball is distinctively an American game; that it originated in Cooperstown, New York, in 1839, and that the first scheme for playing it was the invention of Gen. Abner Doubleday, who afterwards graduated from West Point and achieved honorable distinction in the Civil War. The rules of the game as first published by the Knickerbocker Club of New York in 1845 differ only in a few minor details from those of the modern game. Baseball was first played by regular clubs in 1845, and while it had begun to attract attention in the '50's it did not become a common form of sport or exercise and was not generally played until 1865. The first professional club was organized for playing it in 1868.'' State v. Prather, 79 Kan. 513, 100 P. 57, 21 L. R. A. (N. S.) 23, 131 Am. St. Rep. 339.

So that, it appears that, at the time of the passage of the act in question, the game of baseball had not been invented and was unknown, and hence the Legislature could not possibly have had such a game in mind at the time it passed said act.

"Intention is the cardinal rule in the construction of statutes." 11 Encyclopedic Digest, 529, where many cases are cited.

"It is a settled rule that penal statutes are to be construed strictly, and are not to be extended beyond the plain letter of the law." McCreary v. First National Bank, 109 Tenn. 128, 70 S.W. 821.

Now, what was the legislative intent in the passage of this statute? The statute says, "If any merchant, artificer, tradesman, farmer, or other person shall be guilty of doing or exercising any of the common avocations of life," etc. Evidently the Legislature intended to inhibit any one from "exercising any of the common avocations of life on Sunday," and unquestionably it referred to, and the Legislature had in mind, the common avocations of life engaged in by the people at that time. The Legislature did not undertake to enumerate them--it was unnecessary, as they were commonly known and understood by the people, but they indicated what they had in mind by specifically mentioning merchandising; one who does artistic work, a mechanic or manufacturer; a trader and a farmer, and, speaking historically, this practically included all of the common avocations of that day.

If you undertake to extend the statute to the many avocations that have since come into vogue, and which the Legislature could not have had in mind, you are confronted with very serious problems, the result being that a very large number of our industrial and pleasurable operators are persistent violators of the statute. The thousands of men engaged in operating our railroads, traction companies, taxicabs, publishers of Sunday newspapers, the boys who vend these papers, bootblacks, musicians whose avocations as members of a band play in our city parks on Sunday afternoon for the entertainment of the large number of people who frequent such places for fresh air and sunshine, and even the professional musician, who sings as an avocation, and who hires himself to one of our church choirs and sings in church Sunday after Sunday--all of these are violators of the statute, and many other examples could be cited.

So that, when you undertake to give this statute a broader meaning than was intended by its framers, and than a strict construction entitles it to, you are making law violators out of many of our citizens, and they are innocent offenders at that; and, furthermore, the question as to whether a particular act is a violation of the statute will depend largely on the personal views of the particular jurist making the application. One might consider it a violation while another would not, and the result would be that the law would not be uniform, fixed and certain.

The state of New Mexico had a statute (passed in 1897 [Comp. Laws, § 1368]) reading as follows:

"Any person or persons who shall be found on the first day of the week engaged in any sports or in horseracing, cockfighting, etc., or engaged in any labor, except works of necessity, charity or mercy, shall be punished."

In construing this act, in Territory v. Davenport, 17 N.M. 214, 124 P. 795, 41 L. R. A. (N. S.) 407, the court said:

"By the use of the words 'horseracing and cock-fighting' the Legislature pointed out the class of sports which it intended to prohibit, and baseball, not being in the same class of sports, is not prohibited."

And so, in the instant case, you could hardly classify baseball playing with merchandising, manufacturing, trading, and farming.

The state of Texas has a statute (Pen. Code 1895, art. 199) as follows:

"Any merchant, grocer, or dealer in wares or merchandise, or trader in any business," etc., "or the proprietor of any place of public amusement, * * * who shall sell, barter or permit his place of business or place of public amusement to be open for the purpose of traffic or public amusement on Sunday, shall be fined," etc.

The law further defines a place of public amusement to include circuses, theaters, variety theaters, and "such other amusements as are exhibited and for which an admission fee is charged."

A game of baseball was played in a baseball park on Sunday, and an admission fee was charged. An indictment followed and it was contended that the language used included baseball. The doctrine of ejusdem generis was invoked. But the Supreme Court said:

"It is elementary before a citizen can be punished as a criminal that the offense must clearly be defined by the statute, and an appropriate penalty affixed. * * * Further, it is a rule of construction well known that, in undertaking to fix and place the meaning upon statutes, we should do so in the light of contemporaneous history, and in reference to the

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